The advantage of being the party in power is that you can make changes to your rules about your presidential nomination process without worrying about which potential candidate will benefit. Barring the unlikely event that President Biden does not seek the nomination, he will be the Democratic nominee regardless of the rules. So these changes will not impact who will win the nomination in 2024, and 2028 is way too far away for anybody to guess who will be running in 2028 much less who benefits from the changes.
First, as always, the nomination process is a battle between state laws and national rules. And, under the First Amendment, as interpreted by the U.S. Supreme Court, the national party rules for choosing the national presidential candidate prevails over state law. Of course, while the states are unable to bind the national party, the states do set the rules for who appears on their general election ballots. As of now, no state laws designate anybody other than the national nominees as the presidential candidate of that party (and no state party has refused to certify their national candidate).
Second, the two parties have different rules. Both sets of rules involve potential penalties for states that violate the rules. In the past, the two parties had similar rules on timing of primaries. But this time, thanks to the Democrat’s changes to the list of states that can go before the first Tuesday in March, the list of potential February contests is not the same for the two parties. And each party has potential penalties for states that violate their rules.
Third, the “powers that be” that can determine the scheduling of the primary is different in the various states. In some states, the Republicans can control the date of the primary in certain states. In others, the Democrats can control the date of the primary. And even when state officials from a party have control over the timing of their primary (or caucus), there may be local pressures at play that conflict with the national party agenda.
Now, onto the actual scheduling. For the Republicans, the official start of the primary season is March 1, 2024, but Iowa, Nevada, New Hampshire, and South Carolina are allowed to hold their primaries or caucuses in February. For the Democrats, the official start of the primary season is March 5. At the present time, the Democrats are allowing South Carolina, New Hampshire, Nevada, Georgia, and Michigan hold February contests (with dates assigned for each of these contests). So we have a total of six states authorized by, at least, one party to hold a February contest. But, the two lists are not the same, and the scheduling does not necessarily fit the various state statutes.
By its state statutes, Iowa gets to go first. Their statutes require the parties to schedule their precinct caucuses for February and hold the caucuses before any other state’s primaries by at least one week. Now both parties have violated those state laws in the past with no consequences. The Iowa Republicans are free to schedule their caucuses first. But the Iowa Democrats are not. Usually, both parties have tried to hold their precinct caucuses on the same day. Unless something changes, the Iowa Democratic Party will ultimately have to yield to the Democratic National Committee on the scheduling of the Iowa caucuses.
New Hampshire is the second big problem. Like Iowa, New Hampshire law requires it to go first. (New Hampshire has historically reconciled these conflict statutes by holding that the New Hampshire statute only applies to primaries. Most significantly, New Hampshire’s statute does not designate a date. Instead, it allows the Secretary of State (currently a Republican, but both parties have vigorously defended New Hampshire’s place in the process) to pick the date. That gives New Hampshire a significant advantage in terms of its place in the process. Basically, it can move its date at will until it reaches the date when ballots have to be available for overseas and military voters. And since that time period is roughly the same for all states, it is all but impossible for another state to slip in a change at the last second. The problem for New Hampshire this time, however, are the rules. The Democrats are telling New Hampshire that it has to go second (behind South Carolina) on February 6. The Republicans are telling New Hampshire that it can go ahead of South Carolina but must hold their primary in February. Right now, the Republicans are in a position to sit back and let New Hampshire fight with the Democrats, but their rules give no preference to Iowa or New Hampshire ahead of South Carolina and Nevada. If New Hampshire tries to move to January, it will then be up to the Republicans whether they will enforce the February 1 date as the earliest date for the four exempt contests.
Folks may be wondering how the Democrats in South Carolina will be able to go on February 3 as the Republicans control the legislative process. What most people do not realize is that South Carolina has a weird statute governing the timing of the process. Like in New Hampshire, the state statute does not set a date for the primary. However, rather than giving the power to pick a date to the Secretary of State, the South Carolina statue gives that power to the two parties. So each party can choose whatever date they want for their primary, and the two parties have typically chosen differnet dates. So, unless something changes, the South Carolina Democrats can hold their primary on February 3 if they choose. Which would force the Iowa Caucuses and the New Hampshire primary into January unless those two states back down.
the Democratic rules called for states to apply for waivers to be included in the pre-primary window. As of now, the Democrats have given waivers for South Carolina, New Hampshire, Georgia, Michigan, and Nevada. Outside of these five states, all other states (including Iowa) must hold their primaries after March 5. Violation of the timing rules will subject a state to a penalty of 50% of its pledged delegation and the loss of all of its automatic delegates. In addition, any campaign that runs in such a state will be ineligible to receive any pledged delegates.
So now the fun of musical chairs begins. And, back to the original point, the timing of the pre-primary period is a matter of state law.
Iowa state law does not provide for a presidential primary. Instead, as everyone knows, Iowa holds caucuses. The Democratic Party rules do not like caucuses; so the Iowa Democratic Party has been trying (and failing) to make its caucuses as much like a party-run primary as possible. (Since the Republicans in Missouri have opted to repeal the law establishing a presidential primary, the example of Iowa is not comforting for those of us here thinking about our plans for 2024.) While Iowa law gives each state party the right to set the date for precinct caucuses, Iowa state law also requires that the precinct caucuses be held in February and that the caucuses be at least seven days before any other primary or caucus. Given the calendar adopted by the Democratic National Committee, it is impossible for the Iowa Democratic Party to comply with both provisions of law. Further, both parties have flouted both of these requirements in the past. Unlike a certain other state, while Iowa might try to submit an initial plan that calls for a February precinct caucus date, the Iowa Democratic Party will probably stand down and accept an early March precinct caucus date.
South Carolina has been moved up from fourth in the prior calendar to the front spot in next year’s Democratic primary with a scheduled date of February 3. The key thing to know about South Carolina law is that South Carolina allows each party to choose the date for its primary. So it is almost certain that the plans submitted by the South Carolina Democratic Party will propose having the South Carolina Democratic Primary on February 3. We do not yet know what dates the Republicans in South Carolina will use. They have, in the past, been satisfied with being “first in the South” and may keep a later February date.
Nevada is the first of the six states to have a primary date set by state statute. And the date in that statute is February 6 (the first Tuesday in February). Even if South Carolina Democrats do not opt for the February 3 date, the Nevada primary would trigger New Hampshire and Iowa to move their contests into January. And the big question is whether the Republican Party will attempt to enforce their rules against Iowa and New Hampshire to keep them in February. Adding to the issue, Nevada is switching from a caucus to a state-run primary. If they had stayed a caucus, New Hampshire could have, consistent with its past practices, decided that caucuses do not count in terms of their statutory requirement of being the first primary.
According to the Democrat’s proposed calendar, Georgia is supposed to be on February 13. That is not going to happen. The Republicans in Georgia do not necessarily have a problem with Georgia moving to February, but they are not going to risk penalties from the Republican Party when there is unlikely to be a contested race on the Democratic side. Georgia, like New Hampshire, lets the Secretary of State (currently a Republican) pick the date. Thus, the most likely compromise in Georgia will be a March 1 primary — still a pre-Super Tuesday primary which counts as pre-primary window contest for the Democrats but technically within the primary window for the Republicans.
Lastly, there is Michigan. Michigan has moved its primary date to match with the date that it got from the Democrats — February 27. This will be in violation of the Republican Party rules. As much of a mess as New Hampshire is for the Democrats, Michigan is equally a mess for Republicans. They will either have to penalize Michigan (one of the bigger swing states) or show that the party rules on primary timing are mere suggestions. My hunch is that they will initially impose the penalty and try to blame the Democrats for moving the primary in violation of the Republican Party rules.
So there is the status of the February contests with twelve months to go. On the Democratic side, the next big step is the submission of delegate selection plans which is supposed to occur in May. Because the national rules give little discretion to the state parties in primary states, the big issues for now will be how the state parties in the states without state-run primaries structure their delegate selection plans to maximize the opportunity for voters to participate as the rules have gotten more hostile to the traditional caucus system and what the state parties in Iowa and New Hampshire do in response to the decision of the national party about the scheduling of primaries.
