The fundamental weakness of flabby balancing tests in federal election law litigation

Professor Rick Hasen has some thoughts on RNC v. DNC at his blog. (I looked at the case from the perspective of the Purcell principle but not much else.) One passage struck me: “Not only does the Court’s opinion show a nonchalance about the importance of voting rights in the most dire circumstances. It shows that the Court majority did not look for a way to build a bridge for a unanimous compromise opinion.”

To one larger point that probably merits much more attention from me in some more formal way…. One problem, in my view, with this framing is that this case was brought under the flabby Anderson balancing test, an ad hoc totality-of-the-circumstances examination of burdens and interests in the generic language of the "freedom of association." (Now, assuredly others will point out the Court's approach in Shelby County, in Rucho, and so on as indicative of greater "voting rights" concerns, but my claim here is narrower and relates to this particular cause of action.)

What started in the 1960s as a way to prevent minor party candidates from ballot exclusion has become a last-best-hope kind of claim for litigants tossing a claim into federal court. It's the kind of test where Judge Mark Walker in Florida would find that it's a "severe" burden on voting rights if the Republican candidate is listed first on the ballot when a Republican is governor; and where Justice John Paul Stevens would find a photo identification law in Indiana to be a "limited" burden on voters in a record with "no evidence of any" in-person voter "fraud actually occurring in Indiana at any time in its history."

It's not "voting rights" generally; it's, I think, about a particularly weak constitutional test that serves as an emergency catch-all for any election law-related claim that one wants to bring into federal court. Maybe I'm just repeating a point that Professor Guy-Uriel Charles has already made, but litigants' hopes should not ride on a federal court coming to the rescue under this doctrine. The Court may be "nonchalant," but, I think, this doctrine in particular is unusually weak as a vehicle for protecting "voting rights" under the Constitution.

It’s also consistent with the views of Dean Vik Amar and Professor Jason Mazzone looking at this very case. “Applying a very open-ended balancing test that the Supreme Court has used in some but not all cases alleging violations of the federal constitutional right to vote” (emphasis added), they find that the district court’s reasoning was weak.

This brings me to a recent Sixth Circuit decision in Daunt v. Benson regarding Michigan’s recently-enacted ballot initiative establishing a new “independent redistricting commission.” Judge Chad Readler concurred in the judgment. He expressed concern with the majority’s evaluation under the Anderson test: “Following the Supreme Court's lead, we have thus utilized that framework in cases where it is alleged that a state election law burdens voting, from ballot-access laws, to early-voting regulations, to prohibitions on party-line voting.” He continued:

But Michigan's redistricting initiative does not regulate the mechanics of an election. Far from it, in fact. It simply sets the qualifications for Michigan residents who, if they satisfy certain eligibility criteria and are selected by the Secretary of State, will serve as commissioners who, working together as a commission, will draw electoral districts for the State, districts in which as-yet-unknown candidates will seek legislative office in a general election, following party primaries. In other words, the only sense that an election comes into play is the one that will ensue once these many tasks are completed. And neither the commissioners nor the commission, it bears noting, will have an impact or influence on how that election is administered. As the majority opinion thus seemingly acknowledges, it is quite a jurisprudential leap to view this case through Anderson-Burdick's election-focused lens.

Judge Readler emphasizes, “The temptation to overindulge in the Anderson-Burdick test has not gone unnoticed.” Another Sixth Circuit panel recently noted that there can be “legal gymnastics” applying Anderson to some cases. Judge Readler worries, “My concern is more than conceptual. For Anderson-Burdick is a dangerous tool. In sensitive policy-oriented cases, it affords far too much discretion to judges in resolving the dispute before them. Anderson-Burdick relies on a sliding scale to weigh the burden a law imposes against the corresponding state interests in imposing the law. . . . But the test otherwise does little to define the key concepts a court must balance, including when a burden becomes ‘severe.’” He continues, “Absent stricter rules and guidelines for courts to apply, Anderson-Burdick leaves much to a judge's subjective determination.”

Judge Readler’s opinion is worth reading in its entirety, because it relies on a number of other sources I omit here. But it’s emphasize some stirring in the lower courts of the weakness of Anderson. It’s a flabby test, but it’s the most common kind of claim one can raise in federal court on an election law challenge. It gives federal courts generous discretion in all election law cases, not just those implicating race (like the Voting Rights Act or the Fifteenth Amendment), and not just those concerning the enumerated powers of the federal government like, say, the Elections Clause. It allows wholesale review of all state election-related decisions.

So I don’t know that the federal courts are necessarily “nonchalant” about voting rights, at least when it comes to Anderson-style claims. Instead, it’s that federal courts are, I think, not the best (and sometimes, not even the right) place to raise all election law-related concerns. And that’s a weakness of the existing legal regime. Perhaps we want more robust federal statutes within Congress’s purview, or more express guidance from state legislatures. But the federal courts are simply not going to provide the robust judicial review that litigants may seek because the legal framework isn’t designed for it.

Unsigned Supreme Court opinions and orders in short-fuse election law cases

Linda Greenhouse at the New York Times offers this criticism of the Supreme Court’s recent decision in Republican National Committee v. Democratic National Committee:

I wonder how Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh understand the word “ordinarily.” And I wonder why the opinion was issued per curiam — “by the court.” Did none of the five have the nerve to take ownership by signing his name?

In short-fuse election law cases before the Supreme Court, the Court routinely issues per curiam opinions, even with dissenting justices who identify themselves. Or it issues orders without reasoning without the names of individual justices who agreed with the order signed onto it, even if some may dissent (and even if some write dissenting opinions). To name a few:

• Purcell v. Gonzalez (2006): court of appeals order issued October 5, 2006, motion to reconsider denied October 9, 2006; per curiam opinion issued October 20, 2006; Justice Stevens, concurring

• Brunner v. Ohio Republican Party (2008): district court order entered October 9, 2008; application for a stay granted October 17, 2008 in per curiam opinion

• Husted v. Ohio State Conference of the NAACP (2014): application to stay filed September 25, 2014; motion to stay granted September 29, 2014; Justices Ginsburg, Breyer, Sotomayor, and Kagan would deny

• North Carolina v. League of Women Voters of North Carolina (2014): application to stay filed October 2, 2014; application granted October 8, 2014; Justice Ginsburg, with whom Justice Sotomayor joins, dissenting

• Frank v. Walker (2014): court of appeals order issued September 12, 2014; application to vacate granted October 9, 2014; Justice Alito, with whom Justices Scalia and Thomas join, dissenting

• Veasey v. Perry (2014): court of appeals order issued October 14, 2014; motion to stay denied October 18, 2014; Justice Ginsburg, with whom Justices Sotomayor and Kagan join, dissenting

• Northeast Ohio Coalition for the Homeless v. Husted (2016): application for stay October 25, 2016; denied October 31, 2016

• Arizona Secretary of State’s Office v. Feldman (2018): court of appeals injunction issued November 4, 2016; application for stay granted November 5, 2016

• Ohio Democratic Party v. Donald J. Trump for President, Inc. (2016): application to vacate stay November 6, 2016; denied November 7, 2016; statement of Justice Ginsburg

• Brakebill v. Jaeger (2018): court of appeals order issued September 24, 2018; motion to vacate the stay denied October 9, 2018; Justice Ginsburg, with whom Justice Kagan joins, dissenting

I’m sure others can find more, and I’m sure those who’ve clerked on the Supreme Court can offer more “inside baseball.” But in short-fuse election law litigation (and probably in all short-fuse litigation, to be frank!), the Court routinely issues orders without reasoning. Sometimes, it includes a short paragraph of reasoning. Occasionally, it includes a few pages of reasoning, like it did in RNC v. DNC. In all such cases with reasoning, however, it simply issues those decisions per curiam. (In cases without reasoning, it doesn’t identify who did or didn’t agree with the order. Some justices may dissent or choose not to support the order, but they may not be on record as doing so.)

This is true whether the decision is unanimous or if some justices—even if up to four justices—dissent from the Court’s decision.

I think that if this case were to reach the Supreme Court, the case was briefed on the merits, and the Supreme Court issued a full-length, reasoned decision, it would have an author identified. Rarely does the Court choose not to identify a particular author, but in those cases it seems much more deliberate (think Buckley v. Valeo or, also short-fuse but argued, Bush v. Gore).

In short-fuse election law cases, however, there’s nothing unusual with the decision to issue an order or an opinion related to an order without identifying the author.

UPDATE: Josh Blackman has similar thoughts here.

Justice Ginsburg turns the "Purcell Principle" upside down in Wisconsin primary case

The coronavirus pandemic has led to a number of late-breaking election law challenges since mid-March in states holding primaries. The Wisconsin primary is the most recent saga. After a growing pandemic concern, including a “stay at home” order issued March 24, a federal court issued a preliminary injunction on April 2 changing some election procedures ahead of the April 7 election. The Supreme Court on April 6 effectively put some of those changes on hold in its decision in Republican National Committee v. Democratic National Committee.

That’s all the summary or commentary I’ll provide on the merits—changes to the primary could have occurred in the state legislature or, in some jurisdictions, by executive order, and there are challenging questions to consider in primary elections as the election approaches in the midst of a pandemic.

Instead, one item struck me in the dispute between the five justice per curiam majority opinion, and the opinion Justice Ruth Bader Ginsburg wrote on behalf of herself and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. It concerns an interpretation of Purcell v. Gonzalez (2006).

There, the Court reversed a lower court decision that altered an election rule close in time to the election. The Purcell Court emphasized:

Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.

Professor Rick Hasen has referred to this as the “Purcell Principle,” and the Supreme Court has, for the most part, adhered to it—it has reversed lower court injunctions that have altered election rules close in time to the election (the Court’s per curiam opinion cites a couple in RNC v. DNC). It would be nice if the Court articulated better standards than Purcell provides, but the point remains.

But note what these decisions do—the Supreme Court changes a lower court ruling, which had changed an election rule. Purcell is designed to rein in lower courts that change rules. It’s not designed to rein in the Supreme Court and prevent the Court from restoring the original rule.

Consistent with Purcell, the majority opinion tells a lower court not to change the election rules too close in time to the election (here, five days before the election);

This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election. See Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam); Frank v. Walker, 574 U. S. 929 (2014); Veasey v. Perry, 574 U. S. __ (2014).

But that’s where I noticed a couple of passages from Justice Ginsburg’s dissenting opinion interpreting Purcell differently:

This Court’s intervention is thus ill advised, especially so at this late hour. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). Election officials have spent the past few days establishing procedures and informing voters in accordance with the District Court’s deadline. For this Court to upend the process—a day before the April 7 post-mark deadline—is sure to confound election officials and voters.

…

Second, the Court’s order cites Purcell, apparently skeptical of the District Court’s intervention shortly before an election. Nevermind that the District Court was reacting to a grave, rapidly developing public health crisis. If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.

That can’t be what Purcell dictates. Purcell’s entire point is that lower courts can’t change the rules of elections close in time to the election—not that once they do so, the Supreme Court (which always hears the case even closer to the election) can’t restore the original rule.

Now, had Justice Ginsburg offered an alternative interpretation of Purcell—say, a Purcell exception—it might have been more persuasive. For instance, she notes that “the District Court was reacting to a grave, rapidly developing public health crisis.” If Purcell dictates that election rules shouldn’t be changed close in time to elections, perhaps there are times when facts are so late-breaking and so dire that Purcell should give way.

But that would require the Court to articulate a deeper understanding of Purcell, including its contours and its potential exceptions. Justice Ginsburg’s dissenting opinion doesn’t do so, turning Purcell on its head and rendering it largely meaningless.

While one can have varying views on the majority and dissenting opinions, their rightness or wrongness, and the challenges in Wisconsin, I do think this misunderstanding of Purcell was significant enough to draw a little attention to it.

This post has been updated.

There are big barriers to "canceling" or even postponing the 2020 presidential election

There is a lot of consternation about elections in light of Covid-19 and concerns about safety and security in polling places. Louisiana announced that it is postponing its presidential primary from April 4 to June 20. Georgia is pushing back its presidential primary from March 24 to May 19. This has led to a lot of concerns—and, I think, some more conspiracy theory-oriented scenarios—about “postponing” the 2020 presidential election.

It’s probably useful to work backwards from the dates the terms of office begin: terms for Congress begin January 3 and the terms for President and Vice President begin January 20. Those are hard-wired into the Twentieth Amendment of the Constitution.

If a president “shall not have been chosen” by Inauguration Day, it falls to the Vice President. If not the Vice President, then to the Speaker of the House, the president pro tempore of the Senate, the Secretary of State, and on down the line of succession.

So if there is a delayed election, regardless of when the election takes place, President Trump and Vice President Pence have their terms of office end January 20, 2021. And if there is a delayed election, regardless of when the election takes place, the entire House of Representatives and 1/3 of the United States Senate end their terms on January 3, 2021. In that exceedingly unlikely scenario (no President, Vice President, or Speaker), the president pro tempore chosen out of the remaining Senate would be acting President.

So let’s kick it back farther. Election Day is set by federal statute for the Tuesday after the first Monday in November. That’s a federal law. So for that date to be changed, you’d need Congress to alter it, and the president to sign that law. It would not be up to particular states. And, keep in mind, Congress would look to that hard January 3 date when the terms of office of most members of Congress would end. So any movement on the date, I think, would actually look to move it earlier, not later. Or, Congress could establish greater early voting opportunities like vote by mail rules for federal elections. States could do the same—as long as they keep November 3, 2020 in mind.

States could also adjust their state primary elections for Congress, which range from March to September. They are free to adjust those—again, keeping in mind the November date.

For presidential primaries, the rules are even fuzzier. The primaries are largely party-dictated affairs. The Democratic and Republican National Committees have some rules about when primaries can be held. No state except Iowa, New Hampshire, Nevada, or South Carolina can hold a contest before March. (Recall the Democratic fight over Michigan and Florida in 2008.) States can’t have primaries in past mid-June.

So the Democratic Party will decide whether to grant an exception for Louisiana’s late date. Both parties apparently don’t oppose the choice to move the primaries. The parties decide whether or not to count delegates chosen, because the parties dictate the rules. State laws indicate when parties have to file the names of presidential and vice presidential candidates to appear on the ballot, typically late summer; but the rest of the process remains largely with the parties.

Georgia’s decision to postpone will merge its presidential primary with other federal and state primaries, so it’s a rather efficient decision. At the same time, the decision to postpone a primary may be a fairly convenient decision here—it is far less convenient to think about postponing a general election. And given the constitutional barriers defining the end of terms of office, coupled with federal statutes dictating when federal elections must take place, it is unlikely those dates will yield, regardless of what barriers arise ahead.

Special thanks to Professor Brian Kalt for helping me think through pieces of this.

Supreme Court amicus brief in Chiafalo v. Washington

I’ve filed an amicus brief on behalf of myself in support of neither party in Chiafalo v. Washington and Colorado Department of State v. Baca. The PDF is here. (Other documents from the case are here.)

The brief makes four points. The first two are reasons federal courts should not hear the case. First, the Twelfth Amendment commits to Congress, not the federal courts, about when and how to count electoral votes. Congress counted the votes cast by Colorado’s and Washington’s electors, and courts should not second-guess Congress’s judgment. Second, Micheal Baca, Colorado’s elector who was replaced, failed to avail himself of political remedies—he never submitted his vote to Congress to consider or asked Congress to count his vote.

The third and fourth points address the scope of the Court’s decision if it reaches the merits. The Court must identify circumstances in which vacancies may arise in the meeting of electors and in which fines can be imposed, because such statutes have been on the books since the Founding. And the Court should not conclude that electors have a right to cast an anonymous ballot, because early state practices and the internal logic of the Twelfth Amendment do not require anonymous ballots.

Key (sometimes underappreciated) 2020 election dates

April 1, 2020: Census Day, the date on which everyone reports where they live (which will be compiled and submitted to Congress in late 2020) for purposes of reapportionment of members of the House of Representatives, among other purposes.

May 11, 2020: That’s the deadline for independent presidential candidates to file nominating petitions in Texas. Petitioners must secure 89,693 signatures, and signature gathering may begin March 3. In the event a candidate outside the established parties wants to secure a nationwide candidacy, this is among the earliest deadlines (North Carolina recently moved up its deadline to March, and in July 2020 the Fourth Circuit approved that move).

July 20, 2020: This is six months before Inauguration Day (January 20, 2021), and the deadline for the National Popular Vote Compact to take effect in the 2020 presidential election. If 270 electoral votes’ worth of states have signed up by this date, the Compact takes effect; otherwise, sign-ons will be for later presidential elections.

November 3, 2020: Election Day for President and Vice President, and Election Day for members of Congress.

December 8, 2020: The date for states to make a “conclusive” determination, in the eyes of Congress, “of any controversy or contest concerning the appointment of” presidential electors.

December 14, 2020: The date presidential electors convene in each state and the District of Columbia to formally vote for the next President and Vice President of the United States

January 3, 2021: The date the new term of members of Congress begins.

January 6, 2021: The presumptive meeting of Congress to count electoral votes for president, resolve any disputes, and choose a candidate in the event of a tie or of no candidate receiving a majority.

January 20, 2021: Inauguration Day for the next term for the offices of President and Vice President.

Can states thwart the National Popular Vote Compact by refusing to disclose their popular vote totals?

I’ve been deeply critical of the National Popular Vote Compact (“NPV”) (for a taste of some reasons, see here). In brief, instead of states choosing the winning slate of presidential electors based on the winner of each state’s popular vote, compacting states (consisting of at least a majority of the Electoral College) agree to choose the winning slate of presidential electors based on the winner of the national popular vote.

But there’s a new effort out that attempts to thwart the NPV if the NPV ever goes into effect—by refusing to disclose some statewide popular vote totals.

Legislators in New Hampshire and South Dakota have introduced bills that would keep the state’s popular vote totals a secret until after the Electoral College meets. That, in theory, would thwart the ability to add up a “national popular vote” total.

But I’m not so sure this will work.

The NPV instructs each member state to total "the number of votes for each presidential slate in each state . . . in which votes have been cast in a statewide popular election"; and "'statewide popular election' shall mean a general election in which votes are cast for presidential slates by individual voters and counted on a statewide basis." It also provides, “The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.” (Right now, that’s six days before the Electoral College meets.)

That means that if, say, Colorado in 1876 doesn't hold a popular election, there are no popular votes added from the state of Colorado to add. So the Compact counts up the popular votes in as many or as few states as hold elections.

So what if New Hampshire or South Dakota, or some other state, withholds its votes from other states to review? My guess is that there’s no “official statement” of the “popular vote” to treat as “conclusive,” which places no obligation on member states to count those votes in a national popular vote. Alternatively, the compact might be construed to say that there are no “votes . . . counted on a statewide basis” in the event the state chooses not to disclose them prior to the meeting of the electors (technically, of course, they’d be counted secretly, but the implication from the NPV, I think, is that counted and publicly ascertainable is what matters, as other provisions of the NPV suggest).

If that’s the case, New Hampshire or South Dakota wouldn’t be thwarting the NPV. They’d simply be excluded from the “national popular vote” total, as if the legislature chose the electors directly.

Perhaps I’m wrong, and the better interpretation of the NPV is that if a state holds a popular election but refuses to publcly disclose its votes, it would prevent any state from recognizing a “national popular vote” total. But despite my opposition to the NPV for both legal and practical reasons, I’m skeptical this gambit would work.

More transparency in Iowa caucuses leads to more complexity

The 2016 Democratic caucuses in Iowa were close, hotly contested, and left supporters of candidate Bernie Sanders frustrated. The caucuses operated as usual—voters show up at a variety of sites around the state, herd into corners of rooms to express their first preference of candidates, realign if their candidates are “non-viable,” and then that final alignment is translated into “state delegate equivalents,” which turn into the way of measuring “victory” from the caucuses. Only those delegate equivalent totals were reported. Questions arose about what happened in those earlier stages of the process.

Reform efforts looked at increasing transparency. “First alignment,” “final alignment,” and “state delegate equivalents” would all be reported.

Of course, increased disclosure means increased complexity in reporting results (related, in part, to the “app” fiasco). And increased disclosure also means increased opportunities to look back at consistency.

It turns out that there have been extensive inconsistencies in how some of the results have been reported.

Truth be told, such inconsistencies probably happen each year. Herd hundreds of people into a gymnasium, line them up in corners, and ask volunteers to count them? Probably some errors are going to happen.

For the most part, these errors are assuredly (1) innocent (e.g., due to incompetence, not malice); (2) randomly distributed (i.e., not likely to systematically favor one candidate over another); and (3) less important if the “state delegate equivalents” are the right result even if other inaccuracies exist.

For instance, suppose a candidate is listed as having 40 supporters (20% of those present) in the “first alignment” but only 39 supporters (19.5% of those present) in the “final alignment,” when present (new) rules forbid “realigning” if your candidate is “viable” (i.e., has at least 15% support) in the first alignment? If the error is in the tabulation of the “first alignment,” it doesn’t actually matter when it comes to the final alignment that translates into the state delegate equivalents.

In previous years, we’d never find that error. But that error is also immaterial to the result. Granted, it exposes this year that the math was not precise, or that there were some errors at some stages of the process, or that volunteer caucus workers were not as careful as they ought to have been—and one can draw preferred inferences from those new details.

All this is to say, the fuzziness of the caucus results worked in previous years because these errors were never disclosed publicly, likely were randomly distributed, and at least sometimes never altered the ultimate results. But more transparency leads to more complexity. And more complexity leads to more highlights of errors or inconsistencies. Ironically, perhaps, the increased transparency has undermined confidence in the results.

Time will tell whether this means changes for the Iowa caucuses. But these are simply my initial thoughts that transparency may yield complexity, which creates its own challenges.

The Iowa caucuses and political party leverage

The 2020 Democratic caucuses in Iowa ended with uncertainty, as an unvetted closed-source app from an undisclosed developer for reporting results was canned the night of the caucuses, and as some “inconsistencies” led to delayed reporting results. Already, obituaries for the Iowa caucuses are being written—even for the Republican caucuses, which were largely uncontested last night and have less of the dynamism and “realignment” of the Democratic caucuses.

As someone about to embark to the University of Iowa College of Law to teach election, I think about the Iowa caucuses a lot these days. And two common questions arise: why Iowa, and why caucuses? One shortcut answer is tradition—Iowa benefited from a first mover advantage after the disruption of the presidential selection process in the 1960s, and one can easily find plenty written on it.

But another answer is more complicated. Iowa benefits because the Democratic and Republican parties allow it to benefit—or, at least, have been unwilling to challenge the existing structure that has allowed it to benefit.

The Democratic National Committee and the Republican National Committee develop private sets of rules to decide how the party will choose its presidential nominee. It awards each state (and territory) a certain number of delegates to attend a presidential nominating convention. Those delegates must be chosen in each state pursuant to specific rules. And those rules are extensive.

Consider the Democratic Party rules. It includes timing, which includes Rule 12(a):

No meetings, caucuses, conventions or primaries which constitute the first determining stage in the presidential nomination process (the date of the primary in primary states, and the date of the first tier caucus in caucus states) may be held prior to the first Tuesday in March or after the second Tuesday in June in the calendar year of the national convention. Provided, however, that the Iowa precinct caucuses may be held no earlier than 29days before the first Tuesday in March;that the New Hampshire primary may be held no earlier than 21days before the first Tuesday in March; that the Nevada first-tier caucuses may be held no earlier than 10days before the first Tuesday in March; and that the South Carolina primary may be held no earlier than 3days before the first Tuesday in March.

These rules specifically privilege Iowa, New Hampshire, Nevada, and South Carolina.

On top of this is New Hampshire, which has a statute that requires that its presidential preference primary happen before all other preference primaries. Because Iowa holds caucuses, it doesn’t run afoul of New Hampshire’s statute.

So why a caucus? Well, in part, (1) party rules privilege the Iowa caucuses in particular, and (2) caucuses allow it to precede New Hampshire.

Now, after last night, there will be deep soul searching in the Democratic Party (and, I think, the Republican Party) about whether such caucuses should remain. It would require not just to adjust Iowa, but to think about how New Hampshire and other states might react.

It has been deeply difficult for parties to get out of the traditional path-dependent practices of previous years. But this is a moment of leverage—never let a serious crisis go to waste.

And it’s worth reflecting on the leverage exerted by the Democratic Party in 2008. Then, Michigan and Florida attempted to defy party rules by holding early primaries. The Democratic Party rule said that delegates selected in this process would receive zero weight at the nominating convention. Very late in the process, they negotiated a half weighted process. Once Barack Obama was the apparent nominee despite losing Michigan and Florida, they were given full weight.

So, Michigan and Florida bucked the party’s rules—and, I think, in many sense, lost, only to “win” when it no longer mattered. And neither has attempted to buck party rules since.

I wonder if rules changes ahead of 2024 have this moment of leverage for the parties in the face of tradition or existing state rules. Maybe. There are many moving parties and vested interests, so time will tell how the aftermath of Iowa shakes out. But it will, I think, be primarily driven by a strong party desire and a strong willingness to adhere to whatever codification of that desire occurs. Whether that happens is an open question.