Howard Husock for City Journal.
Politico: “Trump’s team has worked behind the scenes to ensure delegate selection rules play to their favor — or, in their rivals’ telling, to ‘rig’ the system.”
538 reports that six candidates appear to have satisfied both the polling and donor requirements: Donald Trump, Ron DeSantis, Nikki Haley, Tim Scott, Vivek Ramaswamy, and Chris Christie.
Generally, criminal defendants must be present in the courtroom during their trials. Not only will that force Mr. Trump to step away from the campaign trail, possibly for weeks at a time, but the judges overseeing his trials must also jostle for position in sequencing dates. The collision course is raising extraordinary — and unprecedented — questions about the logistical, legal and political challenges of various trials unfolding against the backdrop of a presidential campaign….
More broadly, the complications make plain another reality: Mr. Trump’s troubles are entangling the campaign with the courts to a degree the nation has never experienced before and raising tensions around the ideal of keeping the justice system separate from politics.
Mr. Trump and his allies have signaled that they intend to try to turn his overlapping legal woes into a referendum on the criminal justice system, by seeking to cast it as a politically weaponized tool of Democrats.
In related news, the NYT has this story on the potential charges laid out in the target letter from special counsel Jack Smith. They include 18 U.S.C. 241, a statute originally enacted “after the Civil War to provide a tool for federal agents to go after Southern whites, including Ku Klux Klan members” and now “used more broadly, including in cases of voting fraud conspiracies.”
From the hotbed — no pun intended (sorry Arizonans, I know it’s been sweltering) — of election denialism comes this report by Arizona State’s Center for Independent and Sustainable Democracy. Highlights from the press release:
Arizona voters strongly support requiring high-ranking state and local elections officials to be elected in a nonpartisan manner and take an oath to perform their duties in a nonpartisan fashion ….
In addition, more than 80% of respondents – including majorities of Democrats, Republicans and independents – said they want Arizona to adapt a nonpartisan primary system. However, a bare majority backed ranked-choice voting.
Voters surveyed took a dim view of election officials overseeing decisions that might impact their own elections, along with publicly endorsing and fundraising for other candidates for office ….
Iowa’s first-in-the-nation caucuses will be held on Jan. 15, state Republicans voted on Saturday, kicking off the 2024 presidential nomination process.
The vote by the Iowa Republican Party’s state central committee, which scheduled the contest on the Martin Luther King Jr. Day federal holiday, comes after top Democrats pushed to redraw the influential calendar and drop Iowa from its leading spot.
The Republican Party of Iowa’s chairman, Jeff Kaufmann, said in a statement Saturday that party members were “proud to affirm that Iowa will continue to honor our half-century-old promises to the other carveout states.” The three other states that have historically gone first in the nominating contests are New Hampshire, Nevada and South Carolina.
Sharing a chapter I have written for The Oxford Handbook of American Election Law (Eugene Mazo, ed.) (2023, forthcoming). The chapter, among other things, stresses the ways that the U.S. Supreme Court’s current approach to the associational freedom of political parties significantly constrains party reform strategies. Given the manifest need for party regulation in the interest of a healthy democracy and the recent buzz around Lee Drutman’s report and op ed arguing for more and better parties, this seems a good time to share.
New Hampshire is in open rebellion. Georgia is all but out.
South Carolina and Nevada are on board but face stiff Republican pushback. Michigan’s compliance may mean having to cut the state legislative session short, despite Democrats controlling both chambers and the governor’s mansion.
Then there’s Iowa, which is looking for ways to still go first without violating party rules.
Months after the Democratic Party approved President Joe Biden’s plan to overhaul its primary order to better reflect a deeply diverse voter base, implementing the revamped order has proven anything but simple. Party officials now expect the process to continue through the end of the year — even as the 2024 presidential race heats up all around it.
“Despite the fact that it looked like relatively smooth sailing for the president when he proposed it … the kind of backlash you’re hearing, the reactions, are exactly what we would have expected,” said David Redlawsk, chair of the political science department at the University of Delaware and co-author of the book “Why Iowa? How Caucuses and Sequential Elections Improve the Presidential Nominating Process.”
The Des Moines Register covers a new law signed by Governor Kim Reynolds, HF 716, that tweaks a few aspects of elections in Iowa. The bill was revised substantially from the time it was first introduced and solved major associational problems. Of note are two changes to the caucus process. Some media coverage about them is overblown (Josh Putnam at FHQ has very good details), but I’ll highlight those two changes.
The caucuses are a private party-run process, but state law still has some provisions about them. For instance, “Delegates to county conventions of political parties and party committee members shall be elected at precinct caucuses held not later than the fourth Monday in February of each even-numbered year. The date shall be at least eight days earlier than the scheduled date for any meeting, caucus, or primary which constitutes the first determining stage of the presidential nominating process in any other state, territory, or any other group which has the authority to select delegates in the presidential nomination.” There are statutory guarantees that Iowa goes first.
Last December, I highlighted the messiness of the DNC changing its calendar so it is no longer in sync with the RNC calendar. The DNC gave the first five spots to states that were not Iowa. It gave the first spot to South Carolina. (These rules can still change in the months ahead.)
New Hampshire law requires a primary before everyone else. Democrats in New Hampshire plan on abiding by their law and ignoring the DNC rules. That means its primary will be held in late January, before everyone else. The primary is for both Democrats and Republicans. So that puts Republicans in Iowa in a place where they have to move even earlier. Meanwhile, Iowa Democrats proposed a system that would include mail-in balloting. That system, however, would likely make New Hampshire move its primary even earlier–depending on when Iowa Democrats decided to run that process, and when the DNC told them they could.
The first change. Iowa law is amended to add, “If the state central committee of a political party chooses to select its delegates as a part of the presidential nominating process at political party precinct caucuses on the date provided in subsection 1, the precinct caucuses shall take place in person among the participants physically present at the location of each precinct caucus.”
The in-person requirement is to ensure that New Hampshire does not jump Iowa. It also applies only to the selection of delegates. It does not apply to the allocation of delegates, e.g., whether delegates are allocated to particular candidates.
So Iowa Republicans can continue an in-person caucus before everyone else, which includes an allocation process; Iowa Democrats can select delegates that night as a part of their process, but allocate later on a mail-in system; and New Hampshire can breathe easy that the caucuses will not look like a primary.
There’s still much to happen both on the DNC calendar front and the Iowa Democratic Party’s choice of process, but the change is designed to help ease everyone. We’ll see if that holds.
The second change. Iowa has same-day voter registration, and consistent with that, caucuses permitted same-day registrants to participate in the caucuses. The rules now add, “the state central committee of each political party may set rules for participate in or voting at a precinct caucus, including but not limited to voter registration requirements.”
Earlier drafts of this text had a 110-day window or a 70-day window. This instead gives the parties the flexibility to define the contours of participants. The objective is twofold. First, if the DNC and RNC allocation processes take place on different days, pre-registration requirements can diminish the risk of double-voting. Second, if there is a concern of “party raiding,” the party can institute rules to prevent that. In an election where there is no serious Democratic contest but a serious Republican contest, for instance, one can imagine Republicans wanting to require some earlier registration requirement. (More cynically, some have pointed out that a more limited caucus may help some candidates over others, a matter to be fought out inside the party, I’m sure.)
A Nevada news outlet has the details here, and the news release from the Nevada Republican Party is here. It took me a while to find the complaint, which was filed in state court last week in a state jurisdiction that does not have electronic access. That complaint is here.
The complaint argues that the First Amendment protects the right of the state party to run a presidential delegate selection process as it sees fit, and the Nevada Republican Party (apparently) desires to hold caucuses. But the Nevada legislature two years ago approved a switch to a primary process in AB126. The Nevada Republican Party is suing to stop that.
The Supreme Court in 1981 offered a succinct, if somewhat messy, statement of the legal framework (which I highlighted during last year’s DNC calendar shuffle) in Democratic Party of the United States v. Wisconsin ex rel. La Follette:
The State has a substantial interest in the manner in which its elections are conducted, and the National Party has a substantial interest in the manner in which the delegates to its National Convention are selected. But these interests are not incompatible, and to the limited extent they clash in this case, both interests can be preserved. The National Party rules do not forbid Wisconsin to conduct an open primary. But if Wisconsin does open its primary, it cannot require that Wisconsin delegates to the National Party Convention vote there in accordance with the primary results, if to do so would violate Party rules.
States can, essentially, hold whatever presidential primaries they like, whenever they like, however they like. But the national party is not obligated to recognize the results ahead of the presidential nominating convention.
Nevada Republicans, then, are free to hold a nominating caucus at the time and place they want. The State of Nevada, however, is also free to hold a presidential primary. Voters who participate in that primary may not affect the outcome of the selection of delegates–essentially, a “beauty contest.”
This is hardly novel. In 2016, for instance, Bernie Sanders won the Washington caucus–which was a step in sending delegates to the Democratic national convention–while Hillary Clinton later that year won the Washington presidential preference primaries–which were non-binding and had no formal outcome on the process.
Now, AB126 provides, “Any rules or regulations of the party governing the election of delegates and alternates to the national convention of the party, or directing the votes of delegates at the national convention must reasonably reflect the results of the presidential preference primary election, if one has been held for the party.” That is clearly unenforceable against the Nevada Republican Party per Democratic Party v. Wisconsin. (UPDATE: It appears that this provision was then repealed by SB292 months after it was enacted, so it’s not clear that there’s much left to this suit….)
So, the complaint (which could be removed to federal court as it is a First Amendment issue, although perhaps the Secretary of State chooses not to do so) could succeed in seeking injunctive relief or a writ of prohibition. That is, under on-point Supreme Court precedent, the State of Nevada cannot force the party to accept the results of a presidential primary. (Now, that being said, the complaint is fairly imprecise and does not exactly identify what the party wants to see enjoined, speaking more abstractly elsewhere about being “force[d] . . . to use a state-run primary.” The state can still hold a primary per Democratic Party v. Wisconsin.)
On the declaratory relief front, the plaintiff may fare slightly better. The Nevada Republican Party wants a declaration that the party is free to use a caucus system or that primary results are not binding.
One wrinkle to any relief, however: the complaint does not say that the Nevada Republican Party has committed to any particular presidential delegate selection process for 2024. That may mean that the complaint is not ripe for adjudication, as it is possible that the party chooses to use the primary process, and there is no legal conflict if that happens. It seems to want a declaration that it is free to do what it wants without formally indicating that it does not want a primary.
Finally, there are some “conventional wisdom” political ideas floating about that suggesting an intra-party feud, too–the conventional wisdom being, Donald Trump may fare better a smaller event with the most “die hards” in attendance, whereas a (closed) primary election that brings more Republican voters into the selection process will be to his detriment. It’s not clear whether that’s the motivation, or whether that would be the actual effect. And even here, many Republicans in the Nevada legislature favored AB126–this bill was not along starkly partisan lines. But it also highlights potential internal divisions about what process should be used.
The law-meets-party-rules dispute continues. Politico:
Top Democrats are scrambling for ways to avoid a catastrophe in New Hampshire in which Joe Biden may not appear on the primary ballot, ceding the first unofficial contest of 2024 to a fringe candidate.
The bizarre predicament is one of the president’s own making, after he pushed for changes to the party’s presidential nominating calendar that stripped the Granite State of its first-in-the-nation primary. The move was designed to reward South Carolina, which catapulted Biden to the nomination in 2020.
But there’s a state law requiring New Hampshire’s contest be held a week before any others, and Republicans in charge of the governor’s office and state legislature are refusing to touch it. If they don’t, a primary may well be held without the sitting president putting his name on the ballot.
It’s worth noting both Hillary Clinton and Barack Obama appeared on the ballot for Michigan’s and Florida’s 2008 contests that breached the DNC’s rules, even though Obama refused to (formally) campaign in those states once they were out of compliance, leading to different disputes.
As reported in the Philadelphia Inquirer, the most encouraging estimates are that turnout in Philadelphia’s mayoral race will be in the “200,000s or low 300,000s.” Based on competitiveness and Democratic registration advantage in the city, we can assume most of those votes will be cast in the Democratic primary, and split between four to five competitive candidates.
After reading this, I wanted some hard numbers on eligible voters in the city. The only easily available number is the number of registered Democrats in Philadelphia: 775,596 according to the Pennsylvania Department of State. The total number of registered voters in Philadelphia is 1,025,223, according to the same source. Using those numbers, I estimate that Philadelphia’s next Mayor is likely to have been decided by about 5-8% of the city’s registered voters–and that is probably an optimistic projection (one that is fairly close to the estimate offered by the political consultant quoted in the Inquirer).
The Philadelphia Inquirer concludes:
“If the total number of votes the nominee gets falls below 100,000 — a real possibility — that would be the lowest winning raw vote total since at least the 1970s and would represent less than 10% of all registered voters, according to an Inquirer analysis of past election data.”
I hate to say it but Philadelphia needs rank choice voting.
A 2021 amendment to N.Y.’s Election Law restricts the permissible universe of write-in candidates in a party primary to members of the party. Essentially applying Anderson-Burdick, the state appellate court upheld the constitutionality of the amendment.
“Political parties have protected associational rights, which include the right to identify their own members and to select candidates who best represent their ideals and preferences and the ‘right to exclude non-members from their candidate nomination process.’ We conclude that the restrictions imposed by the statute were intended to protect those rights, and that petitioners have no associational right to involve non-members in the nomination process of their parties.”
The case is In re Kowal v. Mohr, 419 CAE 23-00703.
The Atlanta Journal-Constitution’s Greg Bluestein reports this morning on efforts by the Georgia Republican Assembly, a conservative faction within the state GOP, to change the party’s rules to permit the state party to block candidates from qualifying to run as Republicans “if they’re deemed to be insufficiently conservative or a ‘traitor’ to the party.” The article is a caution for those who have been arguing that returning control of party nominations to the party and its leaders would moderate our politics as compared to the primary system. It all depends on who those party leaders are, doesn’t it? The Georgia Republic Assembly has been steadily working itself into positions of power within the party–not unlike the efforts of the Proud Boys to take over the Republican Party in Miami-Dade County. For now, the establishment GOP in Georgia is optimistic it will fend off the extremists.