This weekend, the Democratic National Committee’s Rules and Bylaws Committee will recommend changes to the party’s delegate selection rules and primary calendar for the 2024 election. On the topic, I strongly recommend Josh Putnam’s FrontloadingHQ for all the details.
There are many open questions (some of which we’ll have answers about soon), but a major puzzle has always been the relationship between law and presidential primaries.
States have laws on the books about what their primaries look like and when they take place. New Hampshire, for instance, famously requires its primary to take place first and empowers the Secretary of State to move it earlier if it appears it is not going to be first. And what if it chooses to ignore the DNC’s rules? It’s a question not just for New Hampshire, but for Iowa and other states.
The Supreme Court in 1981 offered a succinct, if somewhat messy, statement of the legal framework 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.
This will set off several complexities if the calendar is upended. If Democrats permit Michigan’s presidential primaries to move into February, for instance, Michigan could try to move everything into February, but risk running afoul of the Republican National Committee’s rules that forbid Michigan from holding a primary before March 1. Michigan could hold two separate presidential primaries, along with a later primary for other offices and a general election, an expensive four-election proposition. On the flip side, if Democrats displace Iowa or New Hampshire from their positions, but the states follow through with state law to the contrary, it would breach potential new Democratic rules
Even if these may be legally required in the states, the parties of course can refuse to recognize the results. But that comes at its own peril. The famous 2008 fights over Florida and Michigan in the Democratic primaries, for instance, are instructive. The two states jumped the calendar and the DNC threatened to punish them. Candidates divided about whether to “recognize” the primary or not. The DNC formally indicated their delegates would not be seated, until an eleventh-hour deal allowed them to be seated–only after it was apparent Barack Obama would be the nominee with or without them.
There’s huge uncertainty about what the DNC will do, how state legislatures react to what the DNC will do, and how strongly or weakly the DNC (and the RNC) will respond to disobedience to rules. But it’s a messy intersection of legal and practical issues behind whatever may happen.