Monday, May 22, 2017

A 2020 Presidential Primary in Colorado

This is part one in a series of posts about 2017 legislation seeking to alter state laws concerning the timing of presidential primary elections or caucuses. 

A careful reading of the set up post to this piece is revealing of an omission to the group of states that made caucus-to-primary shifts in 2016. While Maine and Minnesota took more conventional routes -- passing legislation establishing presidential primary elections to replace caucuses -- Colorado voters took an atypical path in the state's switch to a presidential primary for the 2020 cycle.

And it is not that Colorado legislators had not tried to make the change. Efforts in both 2015 and 2016 languished in the committees to which they were referred and died when their respective sessions adjourned. In addition, the 2016 bill was introduced with the 2016 caucuses process in the Centennial state as the backdrop. That "debacle" featured a state Democratic party overwhelmed by a large turnout (and other subsequent problems) and Republican process that elected delegates but without an attendant preference vote for president. The result was that Coloradans of all political stripes were left unsatisfied with the process.

Enough were disenchanted and organized -- even in the time in mid-spring around which the 2016 presidential primary legislation was introduced -- that an initiative was approved and added to the November general election ballot. When the legislative effort failed, then, there was a citizen-driven effort, approved by the Colorado secretary of state, to fill the void. That initiative, Proposition 107, easily passed.

The practical effect was that 107's passage brought Colorado in line with Maine and Minnesota. Whereas all three states have had presidential primaries in the past, all three have been caucus states over at least the last four cycles. And like those other two caucus-turned-primary states, Colorado made the switch, but did not specify a date on which it would regularly occur. Instead, the new law as approved by the voters ceded the date-setting authority to the governor of Colorado, but with significant limitations.

The guidance provided allows the governor to set the date of the primary on a Tuesday 1) not before the earliest date allowed by the national parties and 2) no later than the third Tuesday in March. That gives the state some leeway, but not much. Before September 1 of the year prior to the presidential election, the Colorado governor will have the ability to set the date of the primary on the first, second or third Tuesday in March.1 Together, all three weeks saw a significant chunk of delegates allocated in 2016. That window was a clustered area on the 2016 primary calendar, but one in which the Colorado caucuses were scheduled anyway.

All of that is simple enough. First, there is a switch in Colorado from a caucus to a primary. And additionally, that contest will be conducted during the first three weeks of March 2020. However, there are at least a couple of relevant caveats for which to account.

1) This is not the only instance of a state that arrived at a presidential primary by a voter-driven initiative. Washington is another example, and the experience in the Evergreen state over the last 25 years is instructive if not cautionary. Washington has held its presidential primaries in that time but the state parties there have often held the contest at arms length. The Republican Party has only partially and occasionally used the contest as a means of allocating its national convention delegates. This past cycle, 2016, was the first time in the Washington primary era that the party used the primary results to guide the allocation of all of its delegates.

The Democratic Party has been worse. In that time, the party has only ever utilized the primary as a beauty contest, most often occurring after the first determining step of the delegate allocation process (the precinct caucuses). Delegates, then, have been allocated based on the state party-run caucuses rather than the primary.

One could potentially see the partisan roles reversed in Colorado. Democrats spearheaded the early legislative efforts in the Centennial state to trade in the caucuses for a primary. But a small number of Republicans in the state legislature were able to kill those bills in committee. Moreover, Colorado Republicans not only opted for closed caucuses in 2016, but chose to eliminate the preference vote at the precinct level in an attempt to continue the state party tradition of sending an unbound delegation to the Republican National Convention. A higher turnout primary among Republicans much less the independents now allowed to participate may be more than the party wants.

Could the Colorado Republican Party opt out of the primary in the way that Washington Democrats have?

The answer appears to be no. On the one hand, Colorado Republicans could take the state to court on freedom of association grounds since under the guidelines of the new primary law, independents are allowed to participate. Neither chair from either of Colorado's two major parties was a fan of that part of the change in the lead up to the election last November.

Possible court challenges aside, there is a further complication for Colorado Republicans; one not faced by Washington Democrats. Historically, Colorado has been one of the few states where state legal code affected things like the timing of caucuses. In most caucus states, that is a matter solely left up to the state parties. But in Colorado, state law described the parameters under which caucuses were conducted. That is part of the reason both parties there held caucuses on the same night in 2016.      Both parties have also historically followed the letter of the law that part of the statute.

But it, too, was altered by the ballot initiative voters passed in November 2016. Rather than giving the parties the option of the first Tuesday in February or March to hold caucuses, the new law lays out a Saturday after the primary date for party precinct caucuses (to begin the process of selecting delegates). That is an important change. If the parties had maintained the option of holding earlier caucuses, Colorado Republicans could have opted into that type of contest in lieu of the later primary.

That is, of course, assuming the party chose to replicate its 2016 strategy: caucuses without preference votes. And again, that was practice was at least part of the rationale driving the ballot initiative in reestablishing the presidential primary in 2016.

But that February option is off the table. It is no longer in the statute. And without it, Colorado Republicans would be forced, under Republican National Committee delegate selection rules, to allocate delegates based on the initial statewide contest, in this case the primary.

2) One additional, far less detailed caveat, is that the Colorado General Assembly during its 2017 session tweaked the law adopted via the November ballot initiative. And the emphasis is on the word "tweak". This was not an effort to repeal or reverse the changes coming from Proposition 107 as has happened elsewhere. Instead, the move in Colorado was to clean up and clarify a number of points. For our purposes, the changes were twofold.

First, the legislature empowered the secretary of state along with the governor to settle on the date of the presidential primary. Technically, the pair could be from different parties which could present either benefits or challenges. The more practical rationale behind the move is to bring into the process the main election administrator in the state.

SB 17-305 also clarified the protocol by which the state is to handle the participation of voters unaffiliated with either of the two major parties (who are now allowed to participate in the presidential primary).

Governor Hickenlooper (D) signed SB 17-305 into law on May 19, 2017 and it will likely take effect in August.

1 This assumes that the national parties maintain their preference for non-carve-out states to begin holding primaries and caucuses on the first Tuesday in March and after. If that changes, then the Colorado window could expand or contract.

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