Category Archives: primaries

More on the legal (and practical) issues around a presidential candidate’s withdrawal

primaries

Rick H. gets the heart of the issues right in his early post. I want to highlight some more wrinkles (but I put the odds of Biden stepping down much lower than 50%).

First, Rick is right that the DNC rules for “pledged” candidates really just a pledge and not binding. Per IX.E.3.d, “All delegates to the National Convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” Likewise, IX.C.7.e, “Eligible delegates may vote for the candidate of their choice whether or not the name of such candidate was placed in nomination.” (Rick rightly notes, “That would be true even if Biden stayed in the race,” but this is not a politically likely option.)

Second, in the event of a vacancy in the ticket after the convention, the rules are a little different: “Filling a Vacancy on the National Ticket: In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the
National Convention, the National Chairperson of the Democratic National Committee shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the Democratic National Committee, which is authorized to fill the vacancy or vacancies.”

Third, the DNC announced it would hold a “virtual roll call” before the convention. That was when there was some doubt about Ohio’s ability to amend its ballot access rules. But perhaps more interestingly, even though Ohio has amended its law, it appears the DNC might worry that other deadlines in other states might be a problem, or in states where a “provisional certification” previously was sufficient for a presumptive nominee that might be legally challenged in this election. Regardless, it’s not clear how this would work in the event of a contested convention, and the DNC might have to backtrack if that’s the case.

Fourth, “superdelegates” (or “automatic delegates”) are eligible only on the second ballot in the event no candidate has a pledged majority the first time around (IX.C.7.b). So the ground could shift from the first to the second ballot separate and apart from any jockeying after the first ballot and candidacies.

Fifth, and finally, recall that New Hampshire violated the DNC’s rules by going early with its primary. In eras of consensus (think to the 2008 Michigan and Florida fiasco, resolved only once Barack Obama secured a majority of the delegates and those states’ rule-breaking delegations could be seated), there is little dispute when some states violate party rules. But in a contested convention, the decision whether to seat a batch of rule-breaking delegates will be much more fraught.

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“The Ballot Measures Aim to Reduce Partisanship. Can They Fix American Politics?”

alternative voting systems, political parties, primaries

Michael Wines for the NYT:

Americans of both parties routinely express deep concern about the state of the country’s democracy. This fall, many voters may have a chance to do something about it, by voting on state ballot measures related to the nuts and bolts of elections and governance.

Eight states, including Ohio and seven others largely in the West, appear all but certain to field ballot measures that would either overhaul redistricting or rewrite election rules to discourage hyper-partisanship and give voters a greater voice in choosing candidates.

Redistricting ballot measures are not uncommon, but since the advent of citizen-backed ballot initiatives in the early 1900s no other year has had more than three election-system initiatives, according to the online elections database Ballotpedia….

Closed primaries, the argument goes, rob independent voters — a growing segment of the electorate, and in some states now the largest one — of a voice in choosing general election candidates. Candidates in open primaries have an incentive to court not only independents but also voters of the opposing party, which, in theory at least, should steer them closer to the political center.

And gerrymandered maps make elections so lopsided that parties with little chance of winning often don’t bother to field general-election candidates. (Nationally, about four in 10 state legislative races have only one candidate.) In those cases, the general election winner only has to win over primary voters, not the broader electorate that turns out in November.

Advocates of ranked-choice elections say they not only give voters a greater say in choosing the ultimate winner of a political contest, but also reward candidates who try to win over a broad swath of the electorate.

It is no accident that electing more moderates would change the conditions that have made the G.O.P. a hothouse for far-right extremists, said Richard L. Hasen, an election-law expert and director of the Safeguarding Democracy Project at the University of California, Los Angeles, School of Law.

“So much of this has to do with the battle for the soul of the Republican Party,” he said.

Not everyone buys the logic. Academic research suggests that ending gerrymandering and adopting certain versions of ranked-choice voting can indeed dampen hyper-partisanship and promote cooperation. But the evidence favoring open primaries is more mixed….

However laudable, many experts and activists say that the proposed fixes are weak medicine to cure what ails American democracy.

“Everyone agrees that our political system is dysfunctional,” said Nate Persily, a leading expert on voting and democracy at Stanford Law School. “But this is not a particularly effective way to deal with our hair-on-fire moment. When insurrectionists are breaking down the Capitol doors, there’s only so much that changing primary election rules is going to do.”…

Ned Foley responds to Nate’s comments here.

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“What Is “Fusion Voting”? Just a Way to Save the Country, That’s All”

alternative voting systems, political polarization, primaries

Dan Cantor and Bill Kristol ask:

What in the world could possibly bring the two of us together? One of us is a slightly reformed Reaganite, the other a slightly chastened social democrat, each of us mugged by authoritarianism. In the 1980s and 1990s, one of us worked for Ronald Reagan and George H.W. Bush; the other worked in the presidential campaigns of the Reverend Jesse Jackson Jr. and co-founded a progressive third party.

And yet, here we are, collaborating on a project that we believe can help restore the political health of the country we both love.

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“One of the biggest changes ever proposed for Colorado elections is on a journey to this November’s ballot”

alternative voting systems, primaries, voter id, voter initiatives

Colorado Public Radio with more on the proposed initiative to implement a top-four primary with ranked-choice voting for the general election.

Meanwhile, there’s a signature campaign in Maine to get two initiatives on the ballot: voter ID and a repeal of participation in the national popular vote compact.

And don’t forget Arizona’s ballot measure to make ballot measures impracticable.

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“Kentucky Supreme Court disqualifies Kulkarni in state House race”

primaries

Ooooof.  An incumbent Democratic state representative was disqualified, because candidacy papers had to be witnessed by two Democrats … but one witness was registered as a Republican and changed her registration after the deadline.  (The representative testified that she thought both witnesses were Democrats.) 

That was the pre-election decision by the state court of appeals, but the courts allowed her to compete in the primary as her case went up to the state supreme court — and in the primary, she shellacked her opponent.  Then the state supreme court affirmed the disqualification.  There was no opposition for the general election.  And now, with no qualified candidate, there will likely have to be a special election, but there are apparently limitations on the incumbent’s ability to compete in that election not that she’s been disqualified. 

Hard to see how any of this serves the voters of the district.

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Republican Party of Nebraska Fails to Oust Incumbents

political parties, political polarization, primaries

AP News reported recently that after being taken over by loyalists to Trump, “[t]he Nebraska GOP . . . refused to endorse any of the Republican incumbents who hold all five of the state’s congressional seats.” In three instances, it endorsed challengers. In two, it simply declared it would not be endorsing the incumbents. Its efforts, however, have failed: All the incumbents won their seats, including Don Bacon, whose congressional district is “purple-ish” having gone for Obama in 2008 and Biden in 2020.

“It’s not a good look,” [Political Science Professor] Hibbing said. “You’d like the faces of your party, who would be your elected representatives, and the state party leaders to be on the same page.”

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Candidate-Centered Top-Two Non-Partisan Primary Vulnerable to Manipulation

political parties, primaries

UPDATE: Two of the three Bob Fergusons have since withdrawn their papers.

This obscure but fascinating story from the Seattle Times reveals the vulnerability of top-two non-partisan primaries to partisan manipulation. Democratic Governor Jay Inslee is stepping down, leaving Washington’s governorship an open race for the first time since 2012. A leading contender for the seat is Bob Ferguson, the state attorney general. Presumably concerned about his prospects, “conservative activist Glen Morgan recruited two people who share a name with the Democratic front-runner for governor to also seek the state’s highest office. ” These two Bob Fergusons officially filed to run last Friday, leaving Washington’s election officials scrambling about how to address the potential voter confusion. Obviously, in a party-centered primary, the party label would be the solution. The law leaves the Secretary of State the option of otherwise differentiating between candidates, such as by occupation or incumbency status. Apart from the question of how effective that will be, I wonder if that would raise bases for challenging the primary election results.

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“Caucuses leave many Iowans out in the cold – and not just in bad weather”

primaries

Patrick Marley for WaPo:

To some here, the Iowa caucuses are an exemplar of democracy, binding communities together and allowing everyday voters to connect with candidates who, a year from now, may be running the country. To others, they are an antiquated system that excludes those who — due to a disability, a work shift, a flat tire, child care needs, extreme weather or any other factor — can’t turn up on the one night every four years when Iowa voters get a say in picking presidential nominees.

Voters must be at their precincts at 7 p.m. Central time on Monday, where they will hear speeches from representatives of the candidates, fill out ballots and, if they want, observe as the votes get tallied. No early or absentee voting is allowed, except for a tiny number of military service members.

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“Big 2024 Presidential Election Changes Are Leaving Voters Baffled”

primaries

A striking piece in today’s Wall Street Journal:

Iowa Republicans on Monday will caucus to choose a presidential candidate, but Democrats will start to vote by mail and wait weeks for results. In New Hampshire the following week, both parties will cast primary ballots, but the Democrats’ votes will be purely symbolic. 

And then in early February, Nevada Republicans can vote in two contests: a caucus without all the GOP candidates, and a primary where results won’t count toward the nomination.

For that confusion, voters can thank allies of President Biden and former President Donald Trump, who have pushed for changes to the calendar to boost their candidates’ nomination prospects and make it harder for challengers. 

For some voters, these changes are undermining confidence in the voting process as the integrity of U.S. elections is under attack. Voters are more likely to skip contests where the rules are confusing or their votes are only symbolic. 

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Indiana court finds law keeping Republican Senate candidate off primary ballot violates Anderson-Burdick, 17th Amendment

political parties, primaries

You can see the Marion County Superior Court’s decision in Rust v. Morales and commentary here. More commentary from the Indianapolis Star. The law requires primary candidates either (1) voted in that party’s past two primary elections or (2) received approval to run from the county party chair. John Rust voted in the Democratic primary in 2012. The court found that the law runs afoul of the Anderson-Burdick balancing test as placing an undue burden on the right to vote; that it violates the 17th Amendment, which guarantees that “the people” vote for Senators; and that it violates other state provisions of law.

I think, at least on federal law, the holdings are likely mistaken. Rick P. last year highlighted a challenge to a similar law in Tennessee, and he rightly emphasized the party’s right to affiliate with candidates, and to exclude candidates it prefers not to associate with. Here, Indiana Republicans do not want Rust to appear as a primary candidate, and they appear entirely comfortable with the state legal system in place. It is strange, then, that the court so readily assumes the candidate has a right to forcibly associate with a political party as a candidate on the ballot when the party has a mechanism to associate with the candidate but no desire to do so. Indeed, in Newsom v. Golden, a challenge to the Tennessee law, I think the court got it right. But these associational cases in political primaries are not very easy (related problems arose in Utah in 2018 in the 10th Circuit here and here), and we’ll see how the case proceeds on appeal (as I mentioned, the court found the law flunked several different tests, so it’s not clear how it plays out).

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“The Way Nevada Will Pick the GOP Presidential Nominee Is a Mess; Dueling caucus and primary confuse voters”

political parties, primaries

WSJ:

In January, roughly half a million Republican voters in Nevada will receive presidential primary ballots in the mail. Former President Donald Trump’s name won’t be on them. 

The omission is part of a tussle that has ripped open the state’s Republican party and diminished the influence of Nevada in early presidential nominating contests. State GOP officials have opted to ignore the state-mandated primary and will instead host an in-person caucus in early February where Trump is expected to rack up enough delegates to win Nevada, a strategy that his opponents see as aiding the front-runner’s candidacy. 

The unorthodox nominating process has left Republican voters here frustrated and confused. The primary ballots they get in the mail will allow them to choose between former South Carolina Gov. Nikki Haley and two candidates who have dropped out of the race: former Vice President Mike Pence and Sen. Tim Scott (R., S.C.). Its outcome is moot since the primary winner won’t accrue any delegates. Florida Gov. Ron DeSantis and several others will instead compete against Trump in the caucus since he and other candidates are forbidden from running in both contests, though voters can participate in each format. 

The result is the battleground state has squandered its chance to capitalize on its plum No. 3 spot on the nominating calendar. Unlike in Iowa, New Hampshire and South Carolina, where campaigns have large teams and candidates are constantly visiting, the top candidates besides Trump are largely ignoring Nevada and have shrunk their campaign footprints in the state.

“It just looked confusing in Nevada,” Haley, a former United Nations ambassador, said in an interview in Iowa when asked about the campaign’s decision to participate in Nevada’s primary despite not being able to earn delegates. She and DeSantis are vying to be the Trump alternative.

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“The New Hampshire Primary Will Be Jan. 23”

political parties, primaries

NYT:

New Hampshire’s presidential primary will be held Jan. 23, state officials announced on Wednesday.

The date had been in contention since the Democratic National Committee decided earlier this year to change its nominating calendar, which had long given New Hampshire the first primary slot after the Iowa caucuses. The new Democratic calendar puts South Carolina first, followed by New Hampshire and Nevada together on one day, then Georgia, then Michigan.

But New Hampshire officials have made clear that they will refuse to abide by the D.N.C.’s decision. The state has a law requiring it to hold the first-in-the-nation primary, and additionally, the Republican Party still has the state in its traditional position in the early lineup of Iowa first, New Hampshire second, and then South Carolina and Nevada….

Because New Hampshire is violating the D.N.C.’s edict, President Biden did not put his name on the ballot there. Some of his supporters are running a write-in campaign on his behalf, but it is not officially sanctioned. Party leaders could also penalize the state by refusing to count its delegates at the Democratic convention.

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