With the 2020 Democratic primaries underway, the role played by the early states (particularly Iowa and New Hampshire) is again under scrutiny. Let's suppose that in 2028, one of the parties decides to give another state a chance to go first. New Hampshire's Secretary of State looks at the state's election laws, and notes that they require him/her to hold their presidential primary at least 7 days before any other state's primary:

The presidential primary election shall be held on the second Tuesday in March or on a date selected by the secretary of state which is 7 days or more immediately preceding the date on which any other state shall hold a similar election, whichever is earlier, of each year when a president of the United States is to be elected or the year previous. ... The purpose of this section is to protect the tradition of the New Hampshire first-in-the-nation presidential primary.

So New Hampshire holds its primaries first anyway. The party's national committee decides to play hardball, and says that the New Hampshire delegates will not be seated at the national convention if New Hampshire jumps the queue. (This was done to Democratic delegates from Florida & Michigan in 2008, for example, after those states held an earlier primary than the Democratic National Committee wanted them to.)

What happens next? Are there any legal theories under which the state of New Hampshire could sue to enforce the seating of their delegates at the national convention? Would such an action need to happen at the state level (in New Hampshire), in federal court, or somewhere else entirely? Or are political parties private organizations who can make their own rules about who they allow to vote at their conventions?

Ignore, for the sake of this question, the political aspects of whether any party would be willing to play hardball with the state of New Hampshire over this issue. Feel free to bluntly correct any misconceptions implicit in this question.

  • 1
    What if another state passes the same law? The end of politics in America?
    – DJohnM
    Feb 12, 2020 at 3:02
  • Reminds me of a Tank McNamara comic in which two NBA players both had contracts requiring them to be paid at least one dollar more than any other player in the league. The lawyer for one team said, "This means you'll be bankrupt by noon."
    – EvilSnack
    Mar 29, 2022 at 17:09
  • This is no longer a hypothetical. The DNC decided to hold the first primary in South Carolina.
    – Barmar
    Oct 25, 2023 at 21:20
  • And as a result, NH decided not to put Biden on their primary ballot.
    – Barmar
    Oct 25, 2023 at 21:30

2 Answers 2



This question has never been squarely resolved by case law. An analysis would look to the U.S. Constitution (the pertinent parts of which are restated below) and case law under it, to determine if Congress has the authority to enact such a law or not including whether laws currently on the books affect it.

Caucuses and primaries are used by political parties as part of their process for determining their Presidential nominees, and the only constitutional acknowledgement that they exist, or are subject to federal regulation is in the 24th Amendment. Political parties also have a 1st Amendment freedom of association interest in choosing their nominees as they see fit, subject to reasonable regulation in an area of law that is not well spelled out in case law.

On the the other hand, caucuses and primaries are government regulated, mostly at the state level, because their results have an officially recognized role in Presidential elections under state laws regulating elections for Presidential electors, and primaries are generally conducted at state expense by state and local government officials, rather than by political parties acting autonomously. And, states have wide expressly granted discretion regarding how they conduct Presidential elector elections subject to the authority of Congress to prohibit various kinds of discrimination in the conduct of elections and to set the date of Presidential elections (a right that Congress has chosen not to strictly enforce allowing early voting, for example).

New Hampshire does have the authority to say what a political party must do to have its nominee recognized on its general election Presidential ballot, and when it will conduct its state primaries. But, it does not necessarily have the power to determine whether or to what extent a national political party will consider the results of that primary in the process of selecting its nominee for President. The Democratic party, for example, would probably be within its rights to award no delegates to its national convention based upon New Hampshire's primary election participants based upon the New Hampshire primary election, and to instead award New Hampshire delegates solely as "superdelegates" who serve ex-officio, or based solely upon an entirely privately funded and operated Presidential caucus it held in New Hampshire at a date of its choosing.

The flip side is that New Hampshire might be within its rights, probably, to decline to put a Democratic party national convention chosen nominee on its Presidential elector ballots, a retaliation, although arguably that would deny the rights of its citizens to vote in the Presidential election over which the federal government has more regulatory authority.

The exact details of any situation leading to litigation would matter a lot, and it isn't possible to predict with any great certainty how a challenge would come out, although it is possible to articulate what provisions of the U.S. Constitution (and with more research, what court cases (maybe a dozen or two are arguably pertinent), federal statutes and state statutes) would be pertinent to the decision. It is possible to advocate for an outcome within the range of legally relevant authority, but, in practice, a negotiated compromise that would not push up against the hard constitutional limits of the constitution, relevant statutes and cases would almost surely be reached before it came to that point.

For example, while New Hampshire might arguably have the right to refuse to put the Democratic nominee on the ballot because it didn't consider the results of its first in the nation primary in choosing its nominee, I very much doubt that New Hampshire officials would actually go that far, if push came to shove.

On the other hand, if Congress passed a law stating that the District of Columbia shall hold the first in the nation primary, as it is probably expressly authorized to do under the 23rd Amendment, that federal law would probably pre-empt New Hampshire's law on the point.

Relevant Provisions Of The U.S. Constitution As Amended

Article I, Section 4 of the U.S. Constitution might be relevant. It states:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

Article I, Section 8 of the U.S. Constitution might be pertinent, it states in the pertinent part that:

The Congress shall have power . . .

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Even more directly, Article II, Section 1 which states, in part, that:

The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. . .

The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

Article VI states in the pertinent part that:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The 1st Amendment to the U.S. Constitution might apply. It states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The 10th Amendment to the U.S. Constitution might apply. It states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Sections 1, 2, and 5 of the 14th Amendment to the U.S. Constitution might apply. These sections state:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. . . .

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The 15th Amendment to the U.S. Constitution might apply. It states:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The 19th Amendment to the U.S. Constitution might apply. It states:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

The 23rd Amendment to the U.S. Constitution might apply. It states:

Section 1. The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The 24th Amendment to the U.S. Constitution, which is the only one expressly recognizing the existence of primary elections, might apply. It states:

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The 26th Amendment to the U.S. Constitution might apply. It states:

Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

Collectively, these sections of the U.S. Constitution give the federal government considerable legislative authority to regulate state elections for federal offices.

  • "An analysis would look at . . . to determine if Congress has the authority to enact such a law . . ." What law are we talking about? In the question I only see references to state law and hypothetical actions by the DNC.
    – Chuu
    Mar 13, 2023 at 21:37
  • @Chuu A hypothetical law suggested as a possibility in the question that would end NH's first in the nation primary status.
    – ohwilleke
    Mar 13, 2023 at 21:40
  • What happens if two different states impose conflicting requirements on a national organization like the DNC? How are they supposed to obey both?
    – Barmar
    Oct 25, 2023 at 21:37
  • @Barmar In the worst case scenario, the Democrats wouldn't get a candidate on the ballot in one of those states, if the state laws were found to be independently valid.
    – ohwilleke
    Oct 25, 2023 at 21:43
  • 1
    It's one of the top stories in the news today. Maybe drowned out by the House finally selecting a Speaker and Trump getting fined for violating the gag order. Example: cbsnews.com/news/biden-new-hampshire-primary-ballot
    – Barmar
    Oct 25, 2023 at 21:58

The Democratic Party is, like any political party in the US, a private organization. It's free to choose any means and set any rules it wants to select its Presidential candidates. They can have elected delegates at a national convention, they could draw lots, or leave it up to a bunch of old men in some smoky room to decide. Any attempt by a state (or the federal) government to try force the party into accepting certain delegates contrary to the party's rules would be a violation of the party's freedom of association rights.

On the other hand, primaries are public service and each state that offers them is free to set its own rules how those primaries are run, so long they don't unduly discriminate (either against parties or voters). There's nothing unreasonable about a state choosing when it holds its primaries.

Nothing is forcing the Democratic Party to participate in the New Hampshire primaries, and nothing restricts when New Hampshire can hold primaries. It's completely up to both of them, the party and the state, to come to an agreement on a date that they can both accept. If they can't then the Democratic Party has the option to use some other means to choose delegates from New Hampshire (eg. a caucus). If New Hampshire wants to run a Democratic primary anyways, there's nothing stopping them. However, there's nothing New Hampshire can do to force the party to participate or to seat delegates the state chose, not without violating the Democratic Party's right to determine its own members and its own candidates.

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