Presidential Primary Reform in the United States

Transcription

1 SPEA Honors Paper Series Vol. 2, No. 1 Presidential Primary Reform in the United States An Undergraduate Honors Thesis by Zachary Conyne-Rapin Professor David Allen, J.D. Indiana University School of Public and Environmental Affairs April 2008 Zachary Conyne-Rapin. All rights reserved. This document may not be copied or reproduced in whole or in part without permission of the author.

2 Presidential Primary Reform 2 Abstract The process by which the Democratic Party and the Republican Party nominate their candidates for president is inherently unfair, antiquated, and overly complex. The process extends undue privilege to the states that vote in the earliest rounds, namely Iowa and New Hampshire, while relegating others to peripheral roles. Many states have made independent attempts to remedy this inherent inequity by moving their own state s primaries or caucuses earlier to give their voters more of a say in determining which candidates seeking nomination stay in the race. The escalation of state primaries and caucuses has given rise in 2008 to the most front-loaded nominating season in history, with the Democratic National Committee and the Republican National Committee penalizing states for moving their contests too early. A number of alternative models have been proposed that would mitigate or eliminate the inequities and inefficiencies that exist in the current presidential nominating process. This paper will explore and evaluate these proposals in an effort to put forth a practical plan for eliminating (to the extent possible) the unfairness in the process.

3 Presidential Primary Reform 3 Table of Contents Abstract... 2 Table of Contents... 3 Introduction... 4 A Brief History of Reform... 6 The Problem Today... 8 Proposed Reforms The Interregional Presidential Primary and Caucus Plan The Delaware Plan Rotating Regional Primary System Graduated Random Presidential Primary System (American Plan) National Primary Day Impediments to Implementation Conclusion References... 30

4 Presidential Primary Reform 4 Introduction The process by which the Democratic Party and the Republican Party nominate their candidates for president is inherently unfair, antiquated, and overly complex. Every four years, Americans conduct the longest job interview for any head of state in the world. The primary and caucus process encourages candidates seeking their party s nomination launch their campaigns too early and to begin preparing to launch their campaigns years before the actual election. The process also puts undue weight and privilege to the states that vote in the earliest rounds of the nomination calendar. These states have traditionally been Iowa and New Hampshire, but other states are attempting to jockey the nominating calendar in order to maximize their relative importance in the selection of a nominee while spending the least amount of money. The special status of New Hampshire and Iowa creates an inherent inequity in the nominating process that gives some voters more of a say than others. The related problem of front-loading also threatens the integrity of the selection process, leaving a vast swath of the American populous out of the decision making process altogether. Many states have made independent attempts to remedy this inherent inequity by moving their own state s primaries or caucuses earlier to give their voters more of a say in determining which candidates stay in the race. A number of alternative models have been proposed that would mitigate or eliminate the inequities and inefficiencies that exist in the current presidential nominating process. This paper will identify the problems with the existing nominating process and explore proposed reforms to the process. The Vanishing Voter Project at Harvard University s Joan Shorenstein Center on the Press, Politics, and Public Policy has developed four criteria to assess proposed reforms to the nominating process. As cited in the Nominating Process, the Vanishing Voter Project concludes

5 Presidential Primary Reform 5 that reform proposals, when it comes to the nominating process, should be judged on the basis of their ability to foster: 1. A shorter campaign; 2. A nominating process that remains competitive for a longer period of time in order to give the public a greater opportunity to engage the campaign and to become informed about the candidates. 3. A briefer interval between the decisive contests and the convention in order to help people sustain the levels of public engagement and information they attained when the nominating campaign peaked; and 4. A system that increases the likelihood that voters in all states will have an effective voice in the selection of the nominees ( Nominating, 2000, p. 17). What is more important than the proposals, however, is their legality. This paper will present the proposed reforms to the nominating process and discuss the legal constraints of implementing reforms.

6 Presidential Primary Reform 6 A Brief History of Reform In 1904, Florida became the first state to hold a presidential primary. Twenty other states followed Florida s lead in implementing primaries by 1916 (Coleman, 2000, p. 6). Primaries and caucuses were introduced at the dawn of the twentieth century in order to combat the backroom politics of the political machines that dominated party politics in the United States. These reforms commonly referred to as the progressive reforms pushed for the implementation of the secret ballot. Voters were not attracted to the primary system in its early decades and some states abandoned the process altogether due to a lack of participation (Coleman, 200, p. 6). The Democratic Party has enacted a number of reform measures to its nomination process since the 1970s. Following the 1968 Democratic National Convention, the DNC established the Commission on Party Structure and Delegate Selection chaired by Senator George McGovern of South Dakota to propose reforms to the party s nominating process in an effort to avoid further problems in It was at the 1968 Democratic National Convention in Chicago that violence erupted as party activists grew increasingly frustrated with the power wielded by party leaders in the nomination process (Coleman, 2000, p. 7). The McGovern- Fraiser Commission proposed a number of reforms in 1969 which were enacted by the DNC. These reforms greatly increased the role of party members in the nomination process and linked their participation directly to the selection of delegates (Coleman, 2000, p. 7). The commission s second chair, Representative Donald Fraiser of Minnesota, worked to refine the changes which eventually led to the implementation of the proportional allocation of pledged delegates based on a candidate s percentage of the vote and to the establishment of uncommitted superdelegates. The Democratic Party s reforms led a number of state legislatures to revise their election laws for both parties (Hershey, 2007, p. 176).

7 Presidential Primary Reform 7 Superdelegate is the colloquial term for an unpledged party leader and elected official delegate under rule 9A of the Democratic Party rulebook ( Regulations, 2007). All Democratic members of Congress, governors, current and former presidents and vice presidents, and all members of the DNC are automatically superdelegates and are sometimes referred to as unpledged PLEO delegates. These superdelegates are free to vote for the candidate of their choice, as they are unpledged delegates to the Democratic National Convention rather than pledged delegates that are determined by primaries and caucuses. Superdelegates were created at the 1980 Democratic National Convention at the recommendation of the McGovern-Fraiser Commission (Hershey, 2007, pp ). Superdelegates first participated in the 1984 election and were intended to return a measure of decision-making power and discretion to the organized party and increase the incentive it has to offer elected officials for serious involvement, according to 1981 remarks of North Carolina Jim Governor Hunt, an advocate of the superdelegate system (as quoted by Kamarck, 2008). In sum, the McGovern-Fraiser Commission resulted in a chaotic transition that set the stage for future nomination process breakdowns. To date, the 1984 nomination is the only election in which superdelegates have played a deciding role in the selection of a nominee. In 1984, Senator Gary Hart of Colorado and former Vice President Walter Mondale were in a close race leading up to the Democratic National Convention. Vice President Mondale, the clear establishment candidate, found himself narrowly ahead of his lesser known challenger, Sen. Hart, but 40 pledged delegates short of the 1,967 needed to nominate in The bloc of superdelegates tipped the balance with approximately four out of every five declaring support for Mondale prior to the Democratic National Convention ( Presidential Primaries, 2001). The former Vice President became the Democratic

8 Presidential Primary Reform 8 nominee and went on to be defeated by incumbent President Ronald Reagan in the largest landslide in modern Presidential history. Critics of the superdelegate system take issue with the increasing size of the voting bloc. Superdelegates made up about 14 percent of delegates in By 1996, superdelegates made up 18 percent of the total ( Presidential Primaries, 2001). In the 2008 nominating season, approximately 796 individuals will be superdelegates making up 19.6 percent of the all delegates to the 2008 Democratic National Convention in Denver, Colorado ( Primary Calendar: Democrat, 2008). Following the McGovern-Fraiser Commission reforms, states returned to the primary method of selecting delegates. In 1968, 37.5 percent of Democratic delegates were chosen in 17 primary states; the 16 Republican primary states that year sent 34.3 percent of the delegates to that party s convention, according to a report for Congress prepared by the Congressional Research Service (Coleman, 2000, p. 7). 30 states held Democratic primaries that selected 72.6 percent of the delegates to the Democratic National Convention by 1976 and 28 states held Republican primaries, yielding 67.9 percent of that party s delegates (Coleman, 2000, p. 7). The Problem Today The presidential nominating process is broken. Numerous problems exist, which can be distilled into the following three fundamental flaws: (1) unfairness in the scheduling process, (2) front-loading of the nominating calendar, and (3) anti-democratic rules that lack inter- and intraparty continuity. These larger problems lead to an overarching unfairness that hinders the ability of a voter to participate in the democratic process of selecting the next President of the United States. Democracy in the United States is rooted on the principal of one vote per citizen. The current nominating process, in effect, works against that notion by establishing rules that puts more weight on some citizen s voters than it does on others.

9 Presidential Primary Reform 9 In the 2000 presidential nominating cycle, Texas Governor George W. Bush and Vice President Al Gore had all but locked up the Republican and Democratic nominations for president by March 7, 2000; voters in 33 states has not yet cast their primary [or caucus] ballots (National Symposium, 2001, p. 16). The so-called first-in-the-nation states of Iowa and New Hampshire held their contests on January 24, 2000 and February 1, respectively. Four years later in 2004, pressure mounted as other states moved their primaries and caucuses earlier. This change caused state and party leaders in Iowa to hold the state s caucuses on January 19, five days earlier, while New Hampshire moved its primaries to January 27. Following the 2004 presidential election, the Center for Democracy and Election Management at American University organized The Commission of Federal Election Reform which was co-chaired by former President Jimmy Carter and former Secretary of State James A. Baker, III. The Commission issued its report in September The report, Building Confidence in U.S. Elections, considered a wide range of issues, most of which centered around the management of general elections. It its report the Commission noted several critical issues with the presidential nominating process. The Commission report states that, the presidential primary system is organized in a way that encourages candidates to start their campaigns too early, spend too much money, and allow as few as eight percent of the voters to choose the nominees ( Building, 2005, p. 67). In 1984, only 8 states held primaries or caucuses before the end of March. Ten years later in 2004, 29 states held nominating contests on or before March 2. In order to compete in 29 states in some 10 weeks, candidates must launch their presidential bids many months before the official campaign begins, so that they can raise the $25 to $50 million needed to compete ( Building, 2005, p. 67). This process is referred to as the invisible primary or the money primary and

10 Presidential Primary Reform 10 can begin years before the candidate makes his or her official announcement. In that time, potential candidates take polls, raise money, identify active supporters in the states with early primaries, and compete for the services of respected consultants (Hershey, 2007, pp ). The invisible primary effectively eliminates s number potential candidates before a single vote is cast in a nominating event solely based on their inability to raise enough money to merit media coverage or front-runner status. Beginning in 1952, New Hampshire began to hold its primary first (Benenson, 2007). Over time the two states have taken steps to maintain their positions of privilege. Because of the importance of a candidate s performance in early contests, candidates tend to spend a disproportionate amount of time conducting retail politics in Iowa and New Hampshire meeting voters and on a one-to-one basis (Sabato, 2007). The process puts undue weight and privilege on the results of the early contests in Iowa and New Hampshire. What is particularly important is the extent of New Hampshire s impact on the final outcome of the nomination process. A win in the New Hampshire primary increases a candidate s expected share of the total primary vote by a remarkable 26.7 percentage points and a second place finish increases a candidate s final vote totals by 17.1 percent (Mayer, 2003, p. 93). While New Hampshire seems to be a strong indicator of a nominee, Iowa s influence is not statistically significant in races (Mayer, 2003). The results of these early contests, particularly New Hampshire, tend to eliminate a number of candidates before the vast majority of the voters have an opportunity to participate. In the run-up to the 2008 presidential nominating cycle, front-loading again threatened the viability of the nominating process. States, looking to increase their own relative importance in the process, attempted to move their primaries and caucuses earlier which eventually led to the

11 Presidential Primary Reform 11 earliest season yet with the Iowa caucuses taking place on January 3, New Hampshire followed days later on January 8. Both the Democratic National Committee (DNC) and the Republican National Committee (RNC) had issued rules that restricted states from holding nominating events prior to February 5, 2008 in an effort to prevent states from moving their contests into January ( Primary Calendar: Republican, 2008). The national Democratic and Republican Parties, however, do not have control over the entire nominating process. National party organizations, state party organizations, and state legislatures all have a role in determining how nominating events will be operated in a given state. The overly complex system, which has little continuity from one state to the next, can be attributed to the lack of a standardized methodology for conducting nominating events. This lack of continuity contributes to the disenfranchisement of voters and potential voters by establishing a set of rules in one state that are entirely different in another, which can damage the value of an individual s vote. The RNC voted to deprive the following states of half of their allotted delegates because state leaders chose to hold nominating events prior to February 5, 2008: Wyoming (Jan. 5), New Hampshire (Jan. 8), Michigan (Jan. 15), South Carolina (Jan. 19), and Florida (Jan. 29). The RNC did not penalize Iowa (Jan. 3), Nevada (Jan. 19), or Maine (Feb. 1-3) because their caucuses are nonbinding and yield unbound delegates. Twenty-one states held nominating events on February 5. In a span of 34 days, Republicans allotted more than 54 percent of the 2,420 delegates tied to state caucuses and primaries ( Primary Calendar: Republican, 2008). Under the Republican Party s rules, delegates are awarded in a winner-take-all method in most cases. In 2000, the race which began that year on January 24 had in effect concluded by March 9, according to the Commission on Election Reform, when Arizona Senator John McCain withdrew

12 Presidential Primary Reform 12 his candidacy for the Republican nomination which left Texas Governor George W. Bush the presumptive nominee ( Building, 2005, p. 67). The DNC established rules for the 2008 nominating season that established February 5, 2008 as the earliest date that states could hold nominating contests. The DNC did permit Iowa Democrats to move its caucuses to January 3 to align with the date selected by Iowa Republicans without penalty. New Hampshire was granted permission by the DNC to hold its first-in-thenation primary prior to February 5, 2008, but Secretary of State William M. Gardner moved New Hampshire s primaries even earlier when Michigan rescheduled its contest for January 15 (Stout, 2007). Under state law, the New Hampshire primaries must be held at least one week before any other primaries. The DNC did, however, penalize Michigan for moving its contest ahead of Feb. 5 by depriving the state of all its delegates to the national convention, both pledged delegates and unpledged superdelegates. The Democratic Party uses a proportional allocation system to award pledged delegates based on the result of the primaries or caucuses held in a given state s congressional districts, not the state as a whole ( Primary Calendar: Democrat, 2008). The front-loading of the primary and caucus schedule is a problem that hinders the effectiveness of voters to participate in the process in a meaningful way. The root of the frontloading problem stems from the inequity that exists in the scheduling process. As previously discussed, party rules permit some states to hold their nominating events earlier than others. Exasperating the issue is the lack of continuity between the national party organizations, the state party organizations, and the states themselves. The DNC and RNC establish guidelines and rules, but because the parties are bottom up organizations, the state parties and state legislatures decide when and how a given state will conduct its nominating contests. Some states elect to conduct

13 Presidential Primary Reform 13 caucuses, which are less expensive and are operated and paid for by the state parties rather than the states. For instance, the State of Ohio holds a statewide primary that requires paying for poll works, ballot printing, ballot processing, voting equipment, and other administrative costs. A caucus, however, is run by volunteers of the political party holding the nominating event. In Iowa, the Democratic and Republican parties hold caucuses using volunteers and no formal voting equipment, which dramatically reduces the cost of an election and shoulders it on the political partly, rather than on taxpayers. A caucus is actually a series of meetings in a muli-tiered arrangement that begins, in most cases, with a meeting on the precinct level where voters of a given party gather and publically declare their support for a candidate. The results of the precinct level determine how many delegates for each candidate will advance to the next stage in the caucus process. Each state develops its own rules, so the caucus model has many variations. Critics have called the quirky caucus method un-democratic because it requires that voters seeking to participate commit a great deal of time to the process and must divulge their vote in public ( Presidential Primaries, 2001). Although there has been a recent increase in the number of states electing to conduct caucuses because of reductions in state spending, the vast majority of states conduct statewide primary elections. According to Larry J. Sabato (2007), Director of the University of Virginia s Center for Politics, there were there were fifteen presidential primaries in 1968 spread out over about three months, from March until June (p. 2). Table 1-1 shows the number of Republican primaries held during each week of the primary season for the years and Table 1-2 shows the number of Democratic primaries. As Table 1 shows, over time, both parties have seen

14 Presidential Primary Reform 14 a shift in how quickly large volumes of pledged delegates are selected due to early primary events. Sabato (2007) writes that in the 1968 and 1972, the voters could focus on their task, and often there was enough time between primaries (a couple of weeks or so) for midcourse corrections in the selection of a party nominee, that is, enough time between contests for the momentum of the first primary winner to die down so that voters in the next state could take a fresh look at the contenders (p. 2). The 2008 nomination cycle has more than forty presidential primaries taking place in a two month period, making it the most front-loaded primary calendar ever (Sabato, 2007). Table 1-1: Cumulative Percentage of Republican Delegates by Week of the Primary Season, (Source: For , Busch and Mayer, 2003) Week

15 Presidential Primary Reform 15 Table 1-2: Cumulative Percentage of Democratic Pledged Delegates by Week of the Primary Season, (Source: For , Busch and Mayer, 2003) Week Though most states elect to conduct either a caucus or a primary, Texas, for instance, conducts both a Democratic primary and caucus. Texas operates a statewide primary for both parties and the Texas Democratic Party funds the caucuses to supplement the primary. The Texas method is the most complicated of all the nominating processes among the states and underscores the lack of continuity in nominating procedures. By rule, the Texas Democratic pledged delegates are allocated using the hybrid model. The primary controls how two thirds of the pledged delegates are allocated while the caucuses control the destiny of the remaining one third. What complicates things further is the requirement that Texas voters must participate in the primary in order to participate in the caucus, making it difficult for voters with time constraints to take part in the complete process. The Texas system gives some citizens (those who are able to

16 Presidential Primary Reform 16 participate in both the primary and the caucus) more of a say than others, which contradicts the principle of one vote per citizen. The schedule of nominating events has been pushed earlier and earlier in the election year since the 1970s when Iowa s caucuses were moved up because of an unusually early Democratic National Convention (Winebrenner, 2007). This escalation has driven the traditional first-inthe-nation states of Iowa and New Hampshire to push their contests earlier in order to maintain their prized positions. Table 2 shows the dates that Iowa and New Hampshire held their nominating events from In the 2000 presidential election cycle, the Iowa caucuses were held on January 24 and the New Hampshire primaries were held on February 1 ( State-by- State, 2000). Four years later in the 2004 presidential cycle, the Iowa caucuses were held on January 19 and the New Hampshire primaries were conducted on January 27 ( United States Elections, 2003). Table 2: First-in-the-Nation Nominating Calendar, Presidential Election Year Iowa Caucuses New Hampshire Primaries 1972 January 24 March January 19 February January 21 February February 20 February February 8 February February 10 February February 12 February January 24 February January 19 January January 3 January 8 1 Table 2 Data Sources: For Iowa , Peverill Squire, The Iowa Caucuses, : A Eulogy (2008); For New Hampshire , Niall A. Palmer, The New Hampshire Primary and the American Electoral Process (1999); For New Hampshire and Iowa , Bob Benenson, A History of U.S. Presidential Primaries CQ Politics (2007); For 2008, David Stout, New Hampshire Sets Jan. 8 Primary The New York Times (2007).

17 Presidential Primary Reform 17 Proposed Reforms In response to the problems with the current nomination process, a number of alternative models have been proposed. These reforms aim to remedy the problems that have hampered the effectiveness of the current process. Each of the following nomination models are designed mitigate the front-loading problem by establishing a methodology for scheduling nominating events that will, in practice, increase the likelihood that voters in all states will have an effective voice in the selection of the nominees. The Interregional Presidential Primary and Caucus Plan The Interregional Presidential Primary and Caucus Plan divides the United States into six regions, designated by a number, and six subregions, designated by a letter (see Table 2). The timing of the primary elections and caucuses under the plan is controlled by the regional assignment of a given state. Each nominating cycle, elections will take place on the second Tuesday in March, the first Tuesday in April, the fourth Tuesday in April, the second Tuesday in May, the fourth Tuesday in May, and the second Tuesday in June (H.R. 1523, 2007). By spacing out the nominating events, the plan prevents front-loading and allows time for candidates to campaign and debate before the early elections. The order that states vote is determined by the Subregion letter. For example, if the states assigned to Subregion B were selected to vote first in 2012, those states would move to the back of the line and vote last in 2016 and the states in Subregion C would vote first. Each state will have the opportunity to vote first once every 24 years (H.R. 1523, 2007). Representative Sander Levin, a Democrat from Michigan, introduced the Interregional Presidential Primary and Caucus Act of 2007 (H.R. 1523) to the House of Representatives in the first session of the 110 th Congress. H.R was referred to the House Committee on House

18 Presidential Primary Reform 18 Administration (H.R. 1523, 2007). A companion bill was introduced in the Senate by Senator Bill Nelson, a Democrat from Florida, which was read twice and referred to the Committee on Rules and Administration (S. 2024, 2007). Rep. Levin introduced versions of the same bill in 1999 and 2000, both of which died in committee (H.R. 3277, 1999; H.R. 4014, 2000). Table 3: Interregional Presidential Primary Regions (Source: H.R. 1523, 2007) Region A B C D E F 1 Maine Massachusetts Connecticut Delaware New York Pennsylvania New Hampshire Rhode Island New Jersey Vermont 2 Maryland West Virginia Missouri Indiana Kentucky Tennessee 3 Ohio Illinois Michigan Wisconsin Iowa Minnesota 4 Texas Louisiana Arkansas Colorado Kansas Arizona Oklahoma Nebraska New Mexico 5 Virginia North Carolina South Carolina Florida Georgia Mississippi Alabama 6 California Washington Oregon Idaho Montana Hawaii Nevada North Dakota Alaska Utah South Dakota Wyoming The interregional plan would remedy the issue of front loaded nominating calendars by stretching the process out from March to June in a balanced way. A major flaw with the interregional plan, however, is the demand that it would put on candidates without the resources to compete in a multistate contest at the outset of the process. Under the current system, the Iowa caucuses and the New Hampshire primaries permit lesser-known candidates to compete in a more manageable environment because of their small size. While the interregional model s elimination of the first-in-the-nation contests does promote the overall goal of ensuring that voters in all states have an equal say in determining their party s nominee, it will require all candidates to compete in a multi-state contest at the outset of the contest. Such an arrangement would likely cause candidates to launch their campaigns even earlier than they presently do in

19 Presidential Primary Reform 19 order to generate enough money to compete, thus extending the length and importance of the invisible primary. The Delaware Plan The Delaware Plan is a model refined by Basil Battaglia, the Delaware Republican State Chairperson, and Richard Forsten, the General Counsel of the Delaware Republican Party, intended to benefit smaller states like Delaware. The plan passed the Republican National Committee Rules Committee in 2000 but did not pass a vote at the 2000 Republican National Convention in Philadelphia and, therefore, was never implemented (National Symposium, 2001). Under the Delaware Plan, states would be put into four groups according to their population. The plan is based on the idea of back-loading the schedule, according to Fair Vote, an organization advocating election reform (2007). Each of the four groups, or pods, is tiered by population with the 12 least populated states and the federal territories in the first, the next smallest 13 states in the next, and so on. Table 4 identifies the pods. Table 4: Delaware Plan Breakdown by Pod (Fair Vote, 2007) Pod Number Pod 1 Pod 2 Pod 3 Pod 4 States and Territories American Samoa, Virgin Islands, Guam, Wyoming, District of Columbia, Vermont, Alaska, North Dakota, South Dakota, Delaware, Montana, Rhode Island, New Hampshire, Hawaii, Idaho, Maine, Puerto Rico Nebraska, New Mexico, Nevada, West Virginia, Utah, Arkansas, Kansas, Mississippi, Iowa, Connecticut, Oregon, Oklahoma, South Carolina Kentucky, Colorado, Alabama, Louisiana, Arizona, Minnesota, Maryland, Wisconsin, Tennessee, Missouri, Washington, Indiana, Massachusetts Virginia, North Carolina, Georgia, New Jersey, Michigan, Ohio, Pennsylvania, Illinois, Florida, New York, Texas, California Under the Delaware Plan, only four consolidated nominating events would occur. Pod 1 would vote on the first Tuesday of March, Pod 2 on the first Tuesday in April, and so on until Pod 4 concludes the process on the first Tuesday of June. The Delaware Plan does permit states

20 Presidential Primary Reform 20 assigned to a Pod to move their nominating event later in the schedule, but not earlier. The Delaware Plan accomplishes the primary objective of shortening the length of the nominating process. More importantly, the plan counters the current problem of front-loading by putting smaller states first and working up to the big states (Fair Vote, 2007). This methodology prevents a candidate from clinching the nomination early in the process by winning a few large states. A potential issue with the plan, however, is the number of states in which a candidate would have to compete in the first round of voting. The strain of campaigning in 12 states in the first round all but eliminates the ability of a candidate to conduct retail-politicking. In order to compete under this model, candidates would have to amass a great deal of money well before the first vote to afford media buys in those 12 states. Another problematic point is the permanent nature of the pod assignments. Some states will still always go before others, winnowing out the field of candidates before all voters have a say. Rotating Regional Primary System The Rotating Regional Primary System divides the United States into four regions: Northeast, Midwest, West, and South (indicated in Figure 1). The regions are roughly equal in terms of the sum of each state s Electoral College votes as calculated using the 1990 census ( National, 2001). The regions would vote on a rotating schedule and states would schedule their nominating events on or about the first Tuesday of March, April, May of June, depending on the order of the regions. States in a region would not necessarily hold their primaries or caucuses on the same day. The National Association of Secretaries of State (NASS) recommended the Rotating Presidential Primary Plan in In its 2005 report, the Carter- Baker Commission on Federal Election Reform endorsed it as well.

21 Presidential Primary Reform 21 Senator Lamar Alexander, a Republican from Tennessee, introduced a version of the Rotating Regional plan in the Senate and has worked with Senator Joe Lieberman, an Independent Democrat from Connecticut, on the issue since The Regional Presidential Primary and Caucus Act of 2007 (S. 1905) was filed on July 31, Senator Alexander, quoted in a Senate press release, said, the presidential nomination system is broken...our legislation will increase the pool of good candidates willing to run for the White House and give more Americans the opportunity to hear their ideas and to cast a meaningful vote (Press Release, 2007). Under the Rotating Regional plan, the nominating process would begin with a group of twelve or thirteen states. Including that many states in the first round of the campaign has the potential to strain lesser-known candidates and curtail retail politics. Another potential problem with the plan is the regional divisions. Figure 1 shows the proposed regions. Critics of the plan have suggested that it has a liberal bias because the Northeast and Western regions tend to be more liberal, the Southern to be more conservative, and the Midwest to be fairly balanced. Proponents, however, argue that the plan is relatively fair and that the Southern region has more electoral votes, helping to balance out the two more liberal regions. Table 5 breaks down the regions by electoral votes. Table 5: Rotating Regional Primary Plan Regions and Electoral Votes ( National, 2001) Region Number of States Region s Total Electoral Votes Northeast Midwest West South

22 Presidential Primary Reform 22 Figure 1: Rotating Regional Primary System Region Map (Source: Sabato, 2007) Graduated Random Presidential Primary System (American Plan) The Graduated Random Presidential Primary System (also known as the American Plan or the California Plan) is a proposed reform that essentially merges elements of the Rotating Regional Primary System and the Delaware Plan. The Graduated model has an incremental schedule that ratchets up over the curse of the nominating season and a rotating ordering of the states (Fair Vote, 2008). Under the plan, the nominating season would be divided into ten periods two weeks in length and would start with small states or territories. The main concept of the Graduated plan is that the first rounds would be made up of small states (or territories) to enable letter-known candidates to compete. The first voting period, for instance, would include a randomly selected group of states and territories with a combined electoral vote total of eight. (For this purpose, territories would be counted as if they had one electoral vote.) Each subsequent period would increase the total number of electoral votes by eight. For example, the

23 Presidential Primary Reform 23 first round totals to eight, the second to 16 (or 8 x 2), the third to 24 (or 8 x 3), and so on (Fair Vote, 2008). A variation of this model (called the California Plan) would move the schedule around so that a few larger states would be distributed earlier in the schedule. Under the general plan, California, which has 55 electoral votes, would not be able to participate any earlier than the seventh period. The California Plan would place the seventh period before the fourth, the eighth before the fifth, and the ninth before the sixth. The California Democratic Party has endorsed this variation of the Graduated Rotating Regional Primary System (Fair Vote, 2008). Additionally, the Democratic National Committee s Commission on Presidential Nomination Timing and Scheduling issued a report in 2005 which cited the model as a potential reform ( Commission, 2005). The Graduated Rotating Regional Primary System proposed a methodology that enables candidates to conduct retail politicking in the first periods. Additionally, the Graduated System would enable voters in smaller states to have a more meaningful say in the winnowing out of the candidates. National Primary Day The National Primary Day model is essentially a mock general election where all states conduct nominating events on the same day. The National Primary Day concept is attributed to President Woodrow Wilson as early as 1913 ( National, 2001, p.17). Proponents of the plan cite the Super Tuesday phenomena as proof that such a plan would work. In recent years, the Super Tuesday events have swelled with 24 states holding nominating events for at least one party on February 5, In 2008, 52 percent of all pledged Democratic delegates and 41 percent of all Republican delegates were in play on February 5 (Balz, 2008).

24 Presidential Primary Reform 24 The National Primary is the simplest model to conceptualize because of the Super Tuesday and general election analogs. The National Symposium on Presidential Selection suggested in its 2001 report that the National Primary Day would almost certainly increase salience and turnout in primaries and caucuses. At the same time, candidates would have a difficult time connecting with voters and would have to rely on expensive media buys and other costly strategies to connect with the voters. Political parties are reluctant to support this proposal because could diffuse control over the selection of their nominee, undermining the exclusive and predictable hierarchy of conventions ( National, 2001). Impediments to Implementation The Vanishing Voter Project criteria for assessing the proposals focuses on a shorter campaign (not necessarily a shorter nominating process), a nominating process that remains competitive for a longer period in order to give more voters the opportunity to become engaged in the process, a briefer interval between the end of the nomination season and the party national conventions to sustain public interest, and an increase in the likelihood that voters will have an effective voice in the nomination process ( Nominating, 2000, p. 17). Each of the reform proposals set forth a methodology that is superior to the current status-quo because the plans all eliminate the problem of front-loading, help voters in different states have an equal say in the nominating process, and shorten the length of the nominating season. In order to be implemented, the proposals must be either adopted voluntarily by the Democratic National Committee and the Republican National Committee or be passed by the Congress and signed into law by the president. These plans necessitate cooperation between the national party organizations, which is unlikely. In the event that the parties are not able to come to a consensus and implement reforms on their own accord, it will be necessary for the Congress

25 Presidential Primary Reform 25 to devise a legislative solution. Any of the reforms that have been proposed have the potential to be legislated and signed into law, which would impose continuity on the process by establishing clear and concrete rules. The current lack of continuity which contributed to the ineffectiveness of the current system is in large part due to the lack of continuity between the national party organizations, the state party organizations, and the states. The proposed reforms, however, raise a number of legal questions. Chief among these is the question: Does Congress have the Constitutional authority to set state presidential nominating dates? Congress has never passed legislation concerning presidential nomination schedules or procedures, so there is no case law on the issue. Congress does, however, have the authority to set the general election date. The Constitution grants Congress the authority to regulate congressional elections in Article I, Section 4, Clause 1 of the Constitution, which is known as the Elections Clause (GAO, 2001). The Elections Clause states that Congress may make or alter state regulations concerning the Times, Places and Manner of congressional elections. The Seventeenth Amendment of the Constitution expands that authority to include Senators elections, though indirectly. The United States General Accounting Office report titled, Elections: The Scope of Congressional Authority in Election Administration states that: The courts have held that the Elections Clause grants Congress broad authority to override state regulations in this area. Therefore, while the Elections Clause contemplates both state and federal authority to regulate congressional elections, Congress authority is paramount to that of the states. (GAO, 2001, p. 2) The Constitution is more limited concerning presidential elections. The Constitution states that, Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States (U. S. Constitution).

26 Presidential Primary Reform 26 Congress has passed legislation that pushes beyond the Time of presidential elections. Specifically, Congress has delved into the timing of federal elections; voter registration; absentee voting requirements; accessibility provisions for the elderly and handicapped; and prohibitions against discriminatory voting practices (GAO, 2001, p. 2). The general election is considered to be a just use of Congressional authority over the states. This authority, however, is seemingly reserved for the administration of official elections, rather than nominating events. The federal regulation of voter registration, voter rights, and election administration has been upheld and does apply to all official elections, including primaries. Because primaries determine the major party candidates for both the House of Representatives, the Senate, and for the presidency, Congress has reasonable grounds to claim justification in the regulation of nominating events. The inconsistencies in the current nominating process disadvantage voters in some states; therefore, Congress arguably has ample justification for imposing a new system in the interest of giving each state an equal voice. Though this would interfere with state elections, Congress does have a compelling government interest to remedy more than one evil arising from the election of members of Congress occurring at different time in the different states, according to the Supreme Court s 1997 decision in Foster v. Love (GAO, 2001, p. 12). Since Congress Constitutional authority has been extended to cover presidential elections, it can be argued that Congress has grounds, in the interest of remedying the many evils of the nomination events occurring at different times in the different states, to impose a federal model for the administration of presidential nominating events. Further, a national solution is necessary to correct the disparities that exist between the states. Congress is uniquely equipped to provide a remedy that would be consistent in all of the states.

27 Presidential Primary Reform 27 The courts would have grounds to rule either way on the issue. On one side, there are clear and fundamental flaws in the current system that, in effect, treats voters in some states differently than voters in other states. On the other side, the Constitution does not seed Congress the authority to usurp the state s ability to administer their own nominating events. The best way to avoid a legal showdown is to encourage the national political parties, state parties, and the states to cooperate in the voluntary implementation of a reform mode. By choosing to reform the nomination process independently of Congress, the parties and states would retain control over the system, increasing their say in future modifications and reforms. In the absence of voluntary reform, Congress does have a claim to the Constitutional authority to regulate presidential nomination scheduling. Another possible avenue for the implantation of reform is through judicial action. The Supreme Court issued a number of decisions under Chief Justice Earl Warren that established the one person, one vote doctrine in outlawing the gerrymandering of Congressional districts. In Wesberry v. Sanders (1964), Reynolds v. Sims (1964) and Baker v. Carr (1962), the Supreme Court ruled that legislative districts had to contain roughly equal populations for the United States House of Representatives. The Court ruled in Wesberry v. Sanders (1964) that, as nearly as practicable one man s vote in a congressional election is to be worth as much as another s. Though there is not a direct link between the elections of Representatives and the selection of delegates, the Constitutionality of selecting delegates using a system that does not make one person s vote worth as much as another s is questionable. Further, the Court found in Bandemar v. Davis (1986) that the Equal Protection clause of the Fourteenth Amendment extended to voting and redistricting. The Supreme Court s prior actions are relevant to this issue; however, it is unlikely that the Court would hear a case pertaining to delegate selection and primary timing.

28 Presidential Primary Reform 28 Conclusion The presidential nominating process is clearly broken; thus, reform is necessary. The escalating problem of front-loading leads to too many candidates being eliminated before voters have an opportunity to cast their ballots. Inconsistent rules lead to voters in some states having more of a say in the process than voters in other states which is an inherently un-democratic situation. Further, the practice of permitting first-in-the-nation scheduling preferences for the Iowa caucuses and the New Hampshire Primaries elevates the importance of a select few voters who winnow out the candidates before voters in other states participate. All of these problems have contributed to a long and drawn out nomination process that leads to a candidate clinching the nomination early (in 2000, both candidates had done so after just six weeks) while voters in other states wait their turn to rubber stamp the only candidates remaining in the race (National Symposium, 2001). After examining the major proposals for reform, a few conclusions can be made. The most equitable of the reform models for voters is the National Primary Day plan. Under the National Primary Day plan, a person s vote in one state s nominating event would be worth as much as another s in a different state. Holding a National Primary, however, would likely lead to a more intense invisible primary that would eliminate candidates long before primary date. The staggering cost of running an election in all fifty states and the territories would lead to a smaller field of well-funded candidates, greatly hindering the ability of lesser-known candidates to compete. For these reasons, the reform model that best mitigates the inequities of the current model while allowing for more candidate choice is the Graduated Random Presidential Primary System. The Graduated system ensures that the nomination process remains competitive using a tiered voting schedule that ratchets up the number of states involved in each round of voting. A

29 Presidential Primary Reform 29 candidate would not be able to clinch their party s nomination until the last stages of the cycle, ensuring that those who vote last still have a say in determining the nominee. The first round of voting under the Graduated model retains the retail politicking tradition of the current model by beginning with a few small contests. The Graduated model will mitigate the voter inequities of the current system without sacrificing the ability of candidates to compete. These are not small problems, nor are they easily remedied. The threat to voters is so significant, under the current system, that comprehensive reform is necessary. The best way to achieve reform is for the DNC and the RNC to form a joint commission to study the proposed methodologies and recommend one model for implantation. Reform should come from the political parties, if possible, as nominating events are part of the political party s selection of their presidential nomine. In the absence of action, Congress should intervene in the interest of repairing the fundamental flaws in the nominating process that treats voters unequally.