Sore Loser Laws Don’t Generally Apply to Presidential Candidates

On January 11, Congressman Ron Paul filed incorporation papers to create a presidential exploratory committee. This allows him to raise money for a campaign to seek the Republican Party’s presidential nomination. He has not yet actually announced that he will seek that nomination, but it seems likely that he will.

Paul describes himself as a lifelong Libertarian who has been elected to Congress as a Republican. He was the only Republican member of the U.S. House to vote against Dept. of Defense appropriations for fiscal year 2007, and he is strongly opposed to U.S. policy in Iraq.

If Paul fails to win the Republican presidential nomination, he could then seek the Libertarian nomination (which he would be virtually certain to obtain) and run in November as the Libertarian nominee. John Anderson established the precedent in most states that “sore loser” laws do not apply to presidential candidates. John Anderson ran in two-thirds of the 1980 Republican presidential primaries, and he also won a place on the November 1980 ballots as an independent candidate in all 50 states. In some of the states in which Anderson happened not to run in the 1980 Republican presidential primary, there is still a precedent that “sore loser” laws don’t apply to president, because others set such precedents. These include Lyndon LaRouche (who ran in Democratic primaries and then as an independent in 1984, 1988 and 1992) and David Duke (who ran in Democratic presidential primaries in 1988 and then ran in November 1988 as the Populist Party nominee).

Only four states maintain that their “sore loser” laws apply to president: South Dakota, Mississippi, Ohio and Texas. After LaRouche won in court against Ohio in 1992, Ohio amended its “sore loser” law in 1993 to specifically apply to presidential candidates. No precedents have been set in Mississippi or South Dakota. In Texas, unfortunately, in 1996 the Constitution Party filed a lawsuit against Texas to get a ruling that the “sore loser” law doesn’t apply to president. The federal judge who got the case, James Nowlin, refused to enjoin Texas’ interpretation that the “sore loser” law does apply to president. The denial of injunctive relief is reported as US Taxpayers Party v Garza, 924 F Supp 71 (1996).

However, the opinion does not discuss the fact that the true candidates in November are running for presidential elector, not president. A presidential candidate’s name is not listed on the November ballot in his or her role as a candidate. Instead, the name is an identifier for specific slates of candidates for presidential elector.

Since Congress has repeatedly recognized that presidential electors may vote for anyone who holds the constitutional qualifications to be president (by always counting the votes for so-called “faithless electors”, except in 1872 when some electors voted for Horace Greeley even though he was deceased), it seems plain that no state can tell a slate of presidential electors that they cannot label themselves with the name of anyone they intend to vote for. Furthermore, the U.S. Supreme Court said in Anderson v Celebrezze that a single state has a lesser state interest in blocking a presidential candidate from its ballot than from blocking candidates for other office. Since the overwhelming majority of states permit “sore loser” presidential candidates, it is likely that a court in the future would not uphold Texas’ interpretation.

And, if it did, the Texas Libertarian electors could always say that they are pledged to Ron Paul, Jr., the Congressman’s son. Then, if they were actually elected, they could vote for Ron Paul, Sr., notwithstanding their ruse.


Sore Loser Laws Don’t Generally Apply to Presidential Candidates — 14 Comments

  1. Despite repeated oaths, blood oaths, that I would NEVER vote Republican, or Democrat, I think now I might actually get active in local Republican organizations, just to help the Ron Paul candidacy.
    Though it seems to be true that no member of Congress, past or present, stands any chance at all of Heaven, Ron Paul at least will get a very comfortable, air conditioned, even honored, place in the other venue.
    Ron Paul, seriously, is a man to respect, to admire, even to campaign for.

  2. Ron Paul may also seek the Constitution Party nomination if he does not get the Republican nomination. He is the one person that I can think of that could get both nomination and possibly the nominations of other conservative minor parties. If he can unify some of these parties he can be a major force in the election. Paul may actually have an easier time getting the Constitution Party nomination than the Libertarian. He was a speaker at the founding convention of the Constitution Party (then the US Taxpayer Party) and is a featured speaker at many Constitution Party state events through out the country.

  3. A long-time vote-resister (for lack of a better term), I will strongly support Ron Paul’s bid for the presidency!

    What this country needs, obviously, is strict adherence to the constitution and bill of rights, and President Paul will ensure that it happens!

  4. Some people have said that if the hon. Dr. Paul doesn’t get the GOP nod (and the odds are slim to none), it might work for him to run as a CP/LP unity candidate. He could run on one ballot line in some states and on the other in other places. I think this is legal. I know out-and-out fusion isn’t, but I think that would be.

  5. I believe that in some states, including Ohio, presidential electors are required by law to vote for the candidate to whom they are pledged. Is there any case law on the federal constitutionality of laws that require electors to vote as pledged?

  6. Ron Paul, along with Aaron Russo and low-carb advocate Dr. Atkins, founded a “Constitution Party” some time around 1994.
    It sounded very libertarian but, for whatever reasons, did not last very long.
    Does anybody have better memories of that?
    Dr. Paul is one of the very few national political figures who seems genuinely guided by a belief system.

  7. It’s just an exploratory committee, not a commitment to run from Dr. Paul. Still great news though.

    I wonder if he would run for pres and reelection in Congress at the same time.

  8. 1) Good point on the State laws mandating electors to vote for who they pledged too. However, I would think that whatever legal trouble they would face back in their home state, Congress would accept their vote on the national level. Otherwise, Congress would have to wait months for the results of the state court case to see how they would need to apply the vote.
    2) Geez, I think I actually hope he doesn’t get the Republican nod. This could be the best thing to happen to the third parties since Ross Perot.

  9. With regard to Texas running Ron Paul, Jr., all electoral college delegates are required to vote for whomever they are pledge to, but only on the first ballot. If no candidate gets a majority on the first ballot, all EC delegates are free to vote for whomever they wish on the second ballot.

    Should Ron Paul run as an independent after losing the primary, with his son running as a proxy candidate in Texas and other “sore loser” states, and should he or his son actually win any delegates, the delegates could serve as tie-breakers in the second ballot.

    However, unless he and his son got a majority of EC delegates, tie-breaking is the most he could hope for. The R’s and D’s would surely broker a deal with one another before they would consider Ron Paul.

    Note: They don’t have to choose someone who was on the ballot. They could legally settle on someone who was totally a middle of the road candidate with little party loyalty, like Liebermann.

    I don’t see this as the issue, though. Ron Paul will drive the debate in the Republican Primary, and if he loses and accepts the LP nomination, he would drive the debate in the general election as well.


  10. I’m just clarifying Michael Morrison’s comment (#6). It was not Ron Paul who formed the party with the others. It was Howard Phillips.

  11. There is no “second ballot’ in the electoral college. If no Presidential candidate gets a majority, the House elects the Pres., with each state delegation casting one vote. It’s in the Twelth Amendment.

  12. Can you believe it. Ron Paul just raised another $6 Million dollars and I feel actually has a shot at the Republican Nomination.

    Also awesome….his grassroots is getting the assistance of the Libritarian Party via access to their system and NH lists purchased for Ron Paul supporters to call.

    A great time to get involved!

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