For most people, the presidential election begins sometime after the mid-terms — either when candidates start to announce, or when the parties start holding debates, or just before the Iowa Caucuses. But the actual planning begins much, much earlier. Over the next two years, the Democrats and Republcians will be deciding whether to make any changes to the rules for the 2024 Convention.
Technically, the Democrats begin every cycle needing to adopt rules. Of course, there are rules from the last time, and those rules will be mostly readopted. There may be changes to some provisions, but the Democrats do not start from scratch.
As noted in Sunday’s post, the Republicans officially adopt their rules for the next cycle at their national convention. Any change to those rules requires an extraordinary majority on the Republican National Committee with a deadline of September 2022 to make any changes for this cycle.
Both parties, in their national rules, determine how many delegates each state gets. The Democrats go further and break down delegates into three categories — at-large, party leader and elected officials, and district-level. The Democrats also require proportionality for all three categories (with a uniform 15% threshold), but the Republicans only require proportionality for a two-week period (with a 20% threshold and a 50% winner-take all loophole). But both parties leave three matters to the states and state parties: 1) scheduling (except for setting a March-June window for most states and territories with Iowa, New Hampshire, Nevada, and South Carolina permitted to go in February); 2) how to allocate delegates; and 3) how to select delegates.
The scheduling turns in large part on how a state allocates delegates. State parties have three basic options: 1) a state-run primary; 2) a party-run primary; and 3) party-run caucuses.
From the perspective of expenses to the party, smooth operation, and participation, a state-run primary is the best option. The state usually pays the expenses of a state-run primary. The primary is conducted by local election officials who, over a four year period, average at least two elections per year and have, hopefully, worked out the problems and have experienced workers. And the elections are usually held at people’s normal voting place. On the down side, the state chooses the date for a state-run primary, and election authorities may not cooperate in getting the results to the party quickly (or get the party all of the information that it needs). From the state perspective, however, a presidential primary is an expense. It is cheaper for the state if it consolidates the presidential primary with other elections (municipal or the primary for the general election), but there are other reasons such as timing that may lead a state to have a separate presidential primary. But the bottom line is that the state government chooses the date for the state-run primary in most states.
If the state opts against a state-run primary, then the party must choose between a party-run primary and a caucus. A party-run primary is just what the name suggests — the party runs the primary election. That means finding people to serve as election judges, finding locations to hold the primary, finding people to count the ballots, etc. This costs money and a party is unlikely to be able to afford to have as many precincts as the government does or get the same location. So, besides costing the party money, it will not have as much turnout as a state-run primary. But having an extended voting period makes it possible for most people to be able to vote. And the party gets to choose the date that makes sense for it.
The last option is a caucus. In plain English, a caucus is a meeting of local members of the parties. And that means a specific time and a specific location. But there is no uniformly good time for everybody. So the handful of remaining caucus states have been struggling (at least on the Democratic side) with how to allow people to participate if they are unable to attend the caucus. Because it’s only a meeting at one location, a caucus is less expensive than a party-run primary, but participation is lower. Again, the state party gets to choose the date for a caucus. And because there is no ballot, there is no filing deadline.
The key thing to remember about all three systems, however, is that both parties use the result to allocate delegates. Rule 16(a) of the Republican Party Rules states “[A]ny statewide presidential preference vote that permits a choice among candidates for the Republican nomination for President of the United States in a primary, caucuses, or a state convention must be used to allocate and bind the state’s delegation to the national convention in either a proportional or winner-take-all manner” with an exception for states that directly election national convention delegates on the primary ballot. Rule 14(A) of the Democratic Delegate Selection Rules for 2020 stated “[D]elegates shall be allocated in a fashion that fairly reflects the expressed presidential preference or uncommitted status of the primary voters or, if there is no binding primary, the convention and/or caucus participants.”
The last part of the process is how to select delegates. As noted for both parties, for the most part, the selection of delegates is a different issue from the allocation of delegates. The Democrats require people seeking to be delegates to run “pledged” to a particular candidate with each candidate getting the number of delegates that they won in primary or caucus. The Republicans allow states to elect delegates without reference to presidential preference and then assign those delegates in accordance with the results of the primary. Because many of the later Republican states use winner-take-all or winner-take-most systems, a person running for a delegate position knows whom they will be assigned to support because all of the congressional district delegates or all of the at-large delegates are pledged to one candidate.
There are several different systems for choosing the people who will serve as delegates, and most states use some mix of these systems.
First, there is the primary election. Some states have delegate candidates run on the primary ballot. On the Democratic side, the delegates must run pledged to a particular candidate and the result of the “delegate primary” creates a sequenced list for each presidential candidate. (In other words, if candidate X won two delegates, the top two delegates on their list would be elected as delegates.) On the Republican side, it is up to the state as to whether the delegate candidates are identified by their presidential preference. The Republican Party also allows state party to exempt the delegates running in the primary from being bound by the presidential preference vote. To the best of my knowledge, states that use the primary election to elect delegates only use it to select district-level delegates.
Second, at least for state-wide delegates, some state parties assigns the task to the district level delegates. In other words, the people elected to represent the individual districts get to elect the state level delegates.
Third, in some states, there is a pre-election “slating” caucus (typically at the district level). As with the “delegate primary,” the slating caucus creates a ranked list of potential delegates for each candidate. If a potential delegate ends up fourth on the ranked list, she is “elected” if her candidate wins four or more delegates in her district. But if that potential delegate’s candidate only gets three delegates, then she is not elected.
Fourth, in many states, the delegate selection process uses the caucus system. Typically, the caucus system begins with a local meeting that elects delegates to the next meeting. (In some states, this starts at the precinct level followed by a county meeting with the county meeting electing delegates for the congressional district convention and state convention. In other states, it starts with a county meeting that elects delegates for the congressional district convention and state convention.) As noted above, Iowa and Nevada use the vote at the precinct level meeting to allocate delegates. In all other states. the preference of the attendees at the first caucus simply does not matter to who gets the delegates. And in all states, the preferences of the attendees at later meetings has no impact on who gets the delegates. To use an example, if in the primary candidate A won 44% of the vote, candidate B won 33% of the vote. and the remaining four candidates split 23% of the vote (with none of them getting the necessary 15%), candidate A will get four delegates and candidate B will get three delegates even if the supporters of the losing candidates show up at the later meetings and support candidate B.
Fifth, in some states, some of the delegates are selected by the state committee. The state committee tends to be used more frequently to choose state-level delegates. On the Democratic side, it is more likely to be used for the “party leader” delegates than for at-large delegates, but there are states that have the state committee select at-large delegates.
For the next three years, there will be a lot of legislative action regarding state-run primaries and scheduling dates. The tendency has been to move from caucuses to state run primaries, but this tendency is not universal.
Here in Missouri, our Secretary of State has been attempting to push a repeal of the presidential preference primary. It is unclear if he simply does not understand the rules of the two parties (a rather serious concern for the chief elections officer) or is intentionally misrepresenting those rules (an even worse sin), but he is putting forth the inaccurate claim that the presidential primary is non-binding. As noted above, the rules of both parties treat the primary as a binding primary even though state law is silent on this issue. While Missouri parties use the caucus system for choosing delegates, the allocation of delegates is based on the primary. The big emphasis in the push to repeal the primary is financial, but that can be solved by simply moving the primary back from mid-March to the April municipal election. If, somehow, the move to repeal the primary succeeded, the state parties (especially the Democrats) would have to decide if they wanted to go to a party-run primary or use the first stage of the caucus as the preference vote. I for one am not optimistic about the ability to reconfigure the first stage of the caucus in a manner that conforms to the current rules if the state-run primary disappears.
On the other side of the coin, Nevada is considering moving to a state-run primary. If they do so, that would leave Iowa and Wyoming as the last states using a caucus to allocate delegates on the Democratic side.
And, of course, there will be a lot of discussion about scheduling. The handful of states with party-run primaries and caucuses have the most flexibility as the dates will not actually be decided until the state parties adopt their delegate selection rules in 2023. In the states with state-run primaries, current law sets the presumptive date, and it will take legislative action to move the date except in the handful of states which give the Secretary of State the power to move the primary date — a key power that has helped keep New Hampshire as the “first in the nation” primary. The current rules of both parties create a group of four early states — Iowa, New Hampshire, Nevada, and South Carolina. After 2020 (as after every election), there has been some discussion about whether these states should be the four early states. In discussing this status, it is important to remember that both parties have agreed to give these four states that preferential treatment. The parties are able to push back on efforts in other states to move into the early window because both parties have agreed on the rough schedule — four in February, everybody else in March, April, May or June. As long as the parties can agree, there is no incentive for Democrats in Delaware to schedule a primary that would be on a date in violation of Republican rules because that same date would violate Democratic rules and vice versa for Republicans in Texas. If the two parties were to have significantly different scheduling rules, you could have a state government controlled by one party opting for a date permitted by their party’s rules even if the other party prohibits that date. How either party would deal with that situation remains to be seen.
For now, we are in a wait and see mode. Will the Democrats appoint a commission to suggest changes or will any change come out of the Rules and By-laws Committee (which does the first draft of the delegate selection rules)? Will there be any move in the Republican National Committee to revise the current rules? By mid-2022, we should have a good idea of what the rules will be for 2024. Similarly, while it is possible that some legislative changes could take place this year, based on past history, any bills filed now are about starting the discussion with the real decisions being made in 2023. But now is a good time for people who wish to see changes to make their voices heard while there is still time for the national parties and state parties to make changes.
