While, in one sense, it is very early to talk about who will be President of the United States on January 21, 2021, there are many people who think that process has a lot to do with results. And the drafting of the rules for 2020 have already started.
On the Republican side, there is no public effort to re-write the rules. Unlike the Democratic Party, the Republican party has the basic rules (which are less detailed than the Democratic Party rules) for allocating delegates to the national convention within the actual Rules of the Republican Party and require a supermajority of the Republican National Committee to change those Rules.
The Democrats, however, keep the rules for delegate selection separate from the party by-laws. So every cycle, the rules and by-laws committee drafts those rules and submits them to the full Democratic National Committee for approval. The starting point for these rules is the rules from the previous cycle. However, because no rules are perfect, most contested campaigns lead to complaints about the rules. These complaints in turn have, in most of these cycles, caused the party to appoint a commission to study whatever rules were seen as being a problem in the last cycle and make recommendations.
In response to complaints about the 2016 cycle, the party appointed a “Unity Reform Commission.” This Commission has now issued its report. In the normal course of business, this report goes to the rules and by-laws committee to consider the recommendations contained in the report. However, the resolution creating the Commission allows the Commission to bring its recommendations directly to the full Democratic National Committee if it is not satisfied with the decisions of the rules and by-laws committee.
Before going into the key concepts in the recommendations, there is one key fact about the delegate selection plan that needs to be mentioned. The delegate selection plan represents the preferences of the national party. However, particularly in those states that use a primary, there are parts of the process that are governed by state law. Typically, the rules require the state parties to take “provable” steps to change the state law to bring it into compliance with the delegate selection rules. However, even when both parties want the state laws changed or Democrats control the legislature (i.e. both houses and the governor), those running the legislature may not put the same priority on changing state law that the state parties have. In other words, even if the final delegate selection plan includes all of the recommendations contained in the rules, the state parties may be unable to comply. Usually, the rules and by-laws committee has approved waiver requests by the state parties when they are unable to comply with the plan due to state law, but those waivers are not automatic.
In this first part, I want to focus on the participation aspects of the report and its recommendations. Over the last fifty years, the Democratic Party’s rules have generally pushed for two things on the participation front. On the one hand, the Democratic Party has required the state parties to take steps to allow all Democrats to participate in the delegate selection process. On the other hand, the Democratic Party has required the state parties to take steps to limit participation in the process to Democrats.
This second feature of the rules got some resistance this last cycle. The traditional rule reflects the belief of many in the party that a party should have a core set of beliefs and that the candidates chosen should reflect those core positions. In most countries with “strong” parties, this concept that a party should pick its own candidates is not controversial. In the U.S., however, candidates are seen as somewhat separate from the party. As the rules make it extraordinarily difficult for candidates to run as independents, many who do not strongly identify with a political party think that it is unfair that they are excluded from the process of narrowing down the field to the two main candidates.
The recommendations of the Commission to some degree address both of the participation issues. On the issue of making it easier for Democrats to participate in the process, the recommendations represent a continuation of the efforts of the past. On the issue of making it easier for non-Democrats to participate, the rules reflect something of a change.
The encouraging greater participation element of the recommendations are most relevant to the caucus states. Because each state does things differently, the recommendations will not impact all of the caucuses in the same manner. First, a caucus-based plan must include a provision for absentee voting. Second, the first round of voting at each location must be in writing, and the results (raw vote total) of that ballot must be reported to the state party. (In some caucus states, the local party currently only reports the delegates won in a given caucus.) Third, the allocation of national convention delegates will be based on the results of that first round of voting. (In some states, the current rules allocate delegates based on the results of later rounds of voting — either at the initial caucus or at later conventions.) Finally, the rules encourage state parties to use a government-run presidential primary when state law establishes such a primary (i.e. state parties in states like Washington and Nebraska will have to explain why they are opting for a caucus rather than using the results of the primary).
The recommendations also encourage making it easier for people to vote in the Democratic primary. The United States Supreme Court has upheld state laws setting registration deadlines and deadlines for changing party registration. In some states, the deadline for changing party registration predates the deadline for registration by new voters and the deadline for candidates to file (basically requiring voters to choose which party they belong to before knowing who is running or which offices will have competitive primaries). In many states, once a person has voted in one primary, they may not switch parties in the remainder of the cycle (significant if the state holds its presidential primary on a different date than the primaries for other offices).
Because these issues involve state laws, the recommendations only require the state parties to take steps — lobbying for changes and potentially filing legal challenges — to achieve those results (the recommendations would have the rules and by-laws committee insist on state parties filing legal challenges to demonstrate that they have taken adequate steps to change the laws). First, state parties should try to change state law to permit same-day registration. Second, even if there is a registration deadline, the state parties should try to change state law to permit same-day changes of party registration. Third, even if there is a deadline for changing party registration, the state parties should try to change state law so that the deadline for changing party registration is no earlier than the deadline for registering. Finally, state parties should take steps to make the public aware of these deadlines as they approach.
Looking at the potential impact of these changes if adopted, the changes to the caucus rules are most significant. While the report recognizes the usefulness of caucuses in building local parties, the turnout in most caucus states is significantly less than turnouts in party primaries. (In 2016 in Nebraska, the participation in the binding caucuses was approximately 33,000; the turnout in the non-binding primary was approximately 80,000.) The reality is that it is much harder for a voter to make (and stay for) a lengthy meeting at a specific time of the day as opposed to being able to vote at whichever time during the day is most convenient. Rules making it simple for voters to cast an absentee ballot should significantly increase participation.
Additionally, by connecting the ultimate delegate allocation to the first round of voting, the rules changes will alter the delegate allocation in states like Iowa. Currently, in states like Iowa, there are two big distortions in the results. First, actual turnout in a particular precinct is relatively insignificant. If a precinct has thirty delegates to the county convention, it does not matter if sixty voters show up or six hundred voters are present. The results are reported as candidate X won 15 delegates, candidate Y won 10 delegates, and candidate Z won 5 delegates. Second, those delegates are allocated based on the second round of voting. So in a seven candidate race (likely to occur in early states like Iowa and Nevada), voters who supported the trailing candidate in a given precinct have to switch to a different candidate. Because a candidate who gets ten percent of the vote in a precinct gets no delegates and her supporters have to switch to one of the other candidates, the reported results overstate the support for the top candidates and understates the support for the other candidates. Looking at the results in Iowa in 2008, the top three candidates got around 30% of the county convention delegates with the next candidate getting around 3% of the county convention delegates. It is likely, however, that a candidate who got enough second round votes in some precincts to win county convention delegates probably had a large number of first round votes in precincts in which he fell short of 15%, The second tier candidates may still fall short of the 15% state-wide or in the individual congressional district to win delegates, but a candidate who gets 12% while the winner is only getting 22% is more likely to last to Super Tuesday than a candidate who got 2% while the winner is getting 30%.
Because the rules on registration require state action, I am dubious on much progress taking place. I think the caucus states can probably choose to allow same day registration/change of party affiliation at mass meetings. A state party could probably win a case seeking an open (everybody) or a semi-closed (party members and independents) or a closed (party members only) primary as the cases uphold the rights of parties to define who can participate in their processes. On the other hand, state parties would probably lose a case on the registration process in light of cases finding that states have the right to protect election integrity.
Even if state parties can obtain changes to the registration rules, it is less easy to predict the impact of such a change. It is pretty clear that the current caucus system brings in a more activist group of voters — tending more liberal on the Democratic side and more conservative on the Republican side — than a primary election would. So the changes to the caucus system should benefit the better known establishment candidates. Additionally, for the reasons noted above, some candidates may last longer under these rules and win more national convention delegates than they would have under the current rules. The changes to the registration system, however, will be very election specific (as the example of New Hampshire, a state that does allow party switching demonstrates). In some elections, moderate independents will opt to take a Republican ballot while in other cycles moderate independents will opt to take a Democratic ballot — depending on a variety of factors.
Participation is generally a good thing. But as we saw this past year with the various special election, the level of turnout has an impact on the results. And in the nomination process, there is always the question of whether voters loosely affiliated with the party share the ideals of the party. As the Republicans saw in 2016, it is possible for outside candidates to use the primary process to engage in a hostile takeover. In the Democratic Party, one check on such a hostile takeover has been the role of the unpledged delegate a/k/a superdelegates. The suggested changes to those rules will be the focus of the next part.
