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Florida Law, DNC Rules, Punishments, and Primaries
by dhonig, Fri Feb 15, 2008 at 05:26:00 PM EST
There is a tremendous amount of information floating around here, much of it wrong, a lot of it right, about Florida and its primary. One very good, but incomplete, diary by RenaRF can be found HERE, entitled "Not Like This." I agree with many of RenaRF's sentiments, but am discouraged by a few missing facts, and by the MANY misunderstandings in the comments. I will attempt, as dispassionately as possible, to add a bit of information to the conversation.
First, Florida's actual LAW, as it stands today. F.S. 103.101 actually sets the date of the Presidential Primary for both parties. To have a new primary would require an act of the Legislature and the signature of the Governor, and both are Republican.
Cross-posted at the Big Orange Blog, so if you want people there to see it this is the place to recommend and comment.
The law states, in relevant part:
(1) Each political party other than a minor political party shall, on the last Tuesday in January in each year the number of which is a multiple of 4, elect one person to be the candidate for nomination of such party for President of the United States or select delegates to the national nominating convention, as provided by party rule.
What does this mean? Well, the easy part is that it means Florida's Democratic Party can not hold another primary, in person or by mail. But what else does it mean? Can Florida's Democratic Party hold caucuses, or a mail-in "straw poll"? Well, that's a tough call. On the one hand, the LAW says the party SHALL have a primary and SHALL elect one person to be the candidate, but there's a caveat, "as provided by party rule." That creates a conflict in the statute, since the statute requires a primary, but the Party rules permit caucuses. The Supreme Court, in California Democratic Party v. Jones, et al., described the supremacy of parties in primaries, under a freedom of association analysis.
Conclusion? Caucuses, or something that looks like them, are probably okay. Ditto straw polls.
But what actually happened? Lots of people have talked about "punishing" Florida, as if it were a 3 year old to be put in timeout. But it is not. It is a tremendously important State filled with millions of dedicated Democrats. How did we get here?
Well, it started with both parties in the legislature looking to move the primary date up some, to have some relevance. Both parties were behind it. No question about it. But then something funny happened. The Republican-controlled legislature not only picked an early date, it picked a REALLY early date, January 29, 2008. From there, let the Florida Democratic Party tell you what happened:
Initially, before a specific date had been decided upon by the Republicans, some Democrats did actively support the idea of moving earlier in the calendar year. That changed when Speaker Rubio announced he wanted to break the Rules of the Democratic and Republican National Committees. Following this announcement, DNC and Florida Democratic Party staff talked about the possibility that our primary date would move up in violation of Rule 11.A.
Party leaders, Chairwoman Thurman and members of Congress then lobbied Democratic members of the Legislature through a variety of means to prevent the primary from moving earlier than February 5th. Party leadership and staff spent countless hours discussing our opposition to and the ramifications of a pre-February 5th primary with legislators, former and current Congressional members, DNC members, DNC staff, donors, activists, county leaders, media, legislative staff, Congressional staff, municipal elected officials, constituency leaders, labor leaders and counterparts in other state parties. In response to the Party's efforts, Senate Democratic Leaders Geller and Wilson and House Democratic Leaders Gelber and Cusack introduced amendments to CS/HB 537 to hold the Presidential Preference Primary on the first Tuesday in February, instead of January 29th. These were both defeated by the overwhelming Republican majority in each house.
The primary bill, which at this point had been rolled into a larger legislation train, went to a vote in both houses. It passed almost unanimously. The final bill contained a whole host of elections legislation, much of which Democrats did not support. However, in legislative bodies, the majority party can shove bad omnibus legislation down the minority's throats by attaching a couple of things that made the whole bill very difficult, if not impossible, to vote against. This is what the Republicans did in Florida, including a vital provision to require a paper trail for Florida elections. There was no way that any Florida Democratic Party official or Democratic legislative leader could ask our Democratic members, especially those in the Florida Legislative Black Caucus, to vote against a paper trail for our elections. It would have been embarrassing, futile, and, moreover, against Democratic principles.
"Hey man, I don't want to read all that. Tell me what happened." Okay, I will. We got hosed. After the Republicans f'ed us on the date and rejected our amendments to move it back to Super Tuesday, they shoved the whole thing into an Omnibus Bill that included paper trails for ballots. We had already lost on the date. But there was no way the Florida Democrats were going to vote against paper ballots. It was, in effect, the ultimate poison pill.
Also, it only meant losing half the delegates, so at least Florida would still have a voice.
"What?! What are you talking about?"
Well, you see, the DNC Delegate Selection Rules 2008 were actually written in 2006. The Florida Legislature amended the statute in Spring, 2007. At that time (and actually, still, but read on) the rule said:
Violation of timing: In the event the Delegate Selection Plan of a state party provides or permits a meeting, caucus, convention or primary which constitutes the first determining stage in the presidential nominating process to be held prior to or after the dates for the state as provided in Rule 11 of these rules, or in the event a state holds such a meeting, caucus, convention or primary prior to or after such dates, the number of pledged delegates elected in each category allocated to the state pursuant to the Call for the National Convention shall be reduced by fifty (50%) percent, and the number of alternates shall also be reduced by fifty (50%) percent. In addition, none of the members of the Democratic National Committee and no other unpledged delegate allocated pursuant to Rule 8.A. from that state shall be permitted to vote as members of the state's delegation. In determining the actual number of delegates or alternates by which the state's delegation is to be reduced, any fraction below .5 shall be rounded down to the nearest whole number, and any fraction of .5 or greater shall be rounded up to the next nearest whole number.
"Hey, doesn't that solve the problem? Sure, they get less, but they're not 'disenfranchised,' right?" Well, yeah, but then came Donna Brazile. Now mind you, the DNC Rules Committee did not even need to meet, the sanctions were automatic:
Upon a determination of the DNC Rules and Bylaws Committee that a state is in violation as set forth in subsections (1), (2) or (3) of section C. of this rule, the reductions required under those subsections shall become effective automatically and immediately and without further action of the DNC Rules and Bylaws Committee, the Executive Committee of the DNC, the DNC or the Credentials Committee of the Democratic National Convention.
On August 25, 2007, long after the Florida Legislation passed, Ms. Brazile decided she was going to make an example of Florida. She said ""I'm going to send a message to everybody in Florida that we're going to follow the rules." By "the rules," by the way, she meant the date of primary rules, not the DNC's own rules about punishment. What the Rules Committee really did was create an ex post facto new rule to punish Florida (and Michigan). Did the Rules Committee have the authority to do that? Let's look again at the Rules:
Nothing in the preceding subsections of this rule shall be construed to prevent the DNC Rules and Bylaws Committee from imposing additional sanctions, including, without limitation, those specified in subsection (6) of this section C., against a state party and against the delegation from the state which is subject to the provisions of any of subsections (1) through (3) of this section C., including, without limitation, establishing a committee to propose and implement a process which will result in the selection of a delegation from the affected state which shall (i) be broadly representative, (ii) reflect the state's division of presidential preference and uncommitted status and (iii) involve as broad participation as is practicable under the circumstances.
WHOA! It looks like they had the authority, but also had an obligaton. How did they establish a procedure that was (a) broadly representative, (b) reflected the State's preference, and (c) involved broad participation? Simple answer. They didn't. NOT. AT. ALL. But what is this "subsection (b) of this section C"? Funny you should ask, because it doesn't really apply. You see, the "failure" falls under subsection (2), as noted above:
Nothing in these rules shall prevent the DNC Rules and Bylaws Committee from imposing sanctions the Committee deems appropriate with respect to a state which the Committee determines has failed or refused to comply with these rules, where the failure or refusal of the state party is not subject to subsections (1), (2) or (3) of this section C. Possible sanctions include, but are not limited to: reduction of the state's delegation; pursuant to Rule 21.C., recommending the establishment of a committee to propose and implement a process which will result in the selection of a delegation from the affected state which shall (i) be broadly representative, (ii) reflect the state's division of presidential preference and uncommitted status and (iii) involve as broad participation as is practicable under the circumstances; reducing, in part or in whole, the number of the state's temporary and permanent members to the Standing Committees; reducing, in part or in whole, the number of guests, VIP and other passes/tickets to the National Convention and related functions; assignment of location of the state's delegates and alternates in the Convention hall; and assignment of the state's housing and other convention related facilities.
In other words, the complete ban should not have happened. What should have happened? Funny you ask, because there is a rule about that, too:
In the event a state shall become subject to subsections (1), (2) or (3) of section C. of this rule as a result of state law but the DNC Rules and Bylaws Committee, after an investigation, including hearings if necessary, determines the state party and the other relevant Democratic party leaders and elected officials took all provable, positive steps and acted in good faith to achieve legislative changes to bring the state law into compliance with the pertinent provisions of these rules and determines that the state party and the other relevant Democratic party leaders and elected officials took all provable, positive steps and acted in good faith in attempting to prevent legislative changes which resulted in state law that fails to comply with the pertinent provisions of these rules, the DNC Rules and Bylaws Committee may determine that all or a portion of the state's delegation shall not be reduced. The state party shall have the burden of proving by clear and convincing evidence that it and the other relevant Democratic party leaders and elected officials took all provable, positive steps and acted in good faith to achieve legislative changes to bring the state law into compliance with the pertinent provisions of these rules and that it and the other relevant Democratic party leaders and elected officials took all provable, positive steps and acted in good faith in attempting to prevent the legislative changes which resulted in state law that fails to comply with the pertinent provisions of these rules.
Let's break that one up, okay?
In the event a state shall become subject to subsections (1), (2) or (3) of section C. of this rule as a result of state law
Okay, Florida meets that requirement. The date change was a legislative act.
but the DNC Rules and Bylaws Committee, after an investigation, including hearings if necessary,
Was there an investigation? I don't remember one. Were there hearings? Nope. Not one.
determines the state party and the other relevant Democratic party leaders and elected officials took all provable, positive steps and acted in good faith to achieve legislative changes to bring the state law into compliance with the pertinent provisions of these rules
Is this the stumbling block? There is no question Florida Democrats tried to amend the statute to bring it into compliance with the rule. They lost. However, you might say, the Democrats then voted for the law. Yes, they did, but they were also voting for paper trails. Is the DNC really saying the Democrats, who tried to amend the statute and lost, should have voted against paper trails? Gosh I hope not. This is about one election. Paper trails are about EVERY election. Also, having failed to hold an investigation, they were not in a position to make such a decision, were they?
and determines that the state party and the other relevant Democratic party leaders and elected officials took all provable, positive steps and acted in good faith in attempting to prevent legislative changes which resulted in state law that fails to comply with the pertinent provisions of these rules,
Tell me, if you could, how you act to "prevent legislative changes" OTHER than to attempt to amend the legislation? Really, isn't that what they did, and failed?
the DNC Rules and Bylaws Committee may determine that all or a portion of the state's delegation shall not be reduced. The state party shall have the burden of proving by clear and convincing evidence that it and the other relevant Democratic party leaders and elected officials took all provable, positive steps and acted in good faith to achieve legislative changes to bring the state law into compliance with the pertinent provisions of these rules and that it and the other relevant Democratic party leaders and elected officials took all provable, positive steps and acted in good faith in attempting to prevent the legislative changes which resulted in state law that fails to comply with the pertinent provisions of these rules.
"Legislative changes," as is AMENDMENTS.
By all appearances, the DNC Rules Committee did not even try. It simply DEMANDED that Florida have caucuses, or non-binding "primaries," after the early 4, or SCREW FLORIDA.
Could somebody please find that SCREW FLORIDA section in the rules? Because I could not. It ain't there.
What does this mean moving forward? I haven't a clue. The DNC royally screwed the pooch on this one. Obama supporters sure have a good argument the primary that was held should not count, given the DNC's ruling. Clinton supporters have just as good an argument that under the Rules, AS WRITTEN AND STILL IN FORCE, the August 25 action was null and void, therefore revert to the actual rules and count 1/2 the pledged delegates.
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