Emory University Law Professor Michael Kang has a guest blog post at ElectionLawBlog, suggesting that it would be good policy to ease ballot access laws for the general election, and also to repeal “sore loser” laws.
Kang says that if it is true that party polarization is a problem in the United States, that problem can be eased if moderates are free to get on the general election ballot directly, even if they lose a party primary. His examples from 2010 are Lisa Murkowski and Charlie Crist. Even though Crist did not get elected as an independent, Kang says his presence in the U.S. Senate race caused the Republican nominee to moderate some of his stands. And Murkowski probably has won, even though she had to do it the hard way, via a write-in campaign.
Kang does not mention the legal argument against “sore loser” laws, for Congressional elections, but that argument is powerful. “Sore loser” laws, for Congress, are utterly inconsistent with the U.S. Supreme Court’s opinion U.S. Term Limits v Thornton, the decision that struck down state term limits laws for congressional elections. The term limits decision said that states cannot keep candidates off the ballot, for Congress, just because they have some personal characteristic other than age, citizenship and residency on election day. Yet state “sore loser” laws do keep such candidates off the November ballot. Back when the U.S. Supreme Court upheld “sore loser” laws, in 1974, the Court had not yet decided whether states are free to add to the qualifications to get on the ballot for Congress. The term limits decision was released in 1995. The logic of the 1995 decision overrides the 1974 decision, but the Court did not acknowledge that and has not wrestled with the contradiction since then.
In early 2011, Professor Kang’s scholarly article about “sore loser” laws will appear in Georgetown Law Journal.
Kang?
I voted for Kodos!
(I wonder how often professor Kang has to hear this joke…)
Election law regarding ballot access in Watergate era rulings such as this sore loser issue as well as Rosario v Rockefeller will not be satisfactorly resolved until “Barry” Obama is exposed as not being a natural born citizen of the United States, and that he is in fact an undocumented worker (political office holder) and perhaps not even a US citizen and ergo probably a deportable alien.
Has anyone ever challenged a State’s ballot access laws against unaffiliated congressional candidates based on the same principal shown above with the sore loser laws?
Yes, Libertarians filed lawsuits in both Illinois and Georgia, in the 1990’s, but both lost. The party asked for US Supreme Court review in both cases, but the Court declined.
It is amazing how things that make sense don’t either “apply” or are ignored when speaking of ballot access and alternative parties/candidates. Do you think that it would be unwise to use that argument now?
US Term Limits v Thornton said that candidates for Congress could not be forced to run as write-in candidates. It has always been understood that receiving more votes was the ultimate qualification for being elected to Congress. I think Burdick v Takushi is more relevant to the issue of write-in candidates.
Top 2 Open Primaries eliminate any justification for sore losers. A loser in a partisan primary can argue that though they were disfavored by a particular segment of the electorate, they might have been favored by the entire electorate. Partisan primaries deny many voters the right to cast an effective vote. Government funds are expended to promote the interests of private entities.
Which is one reason I’m opposed to publicly funded Primaries. I say let the Parties choose how to nominate their candidates in the first place, and if they choose to use a public Primary to nominate their candidates by that the Party (because like you said it is a private entity) should pay for all costs of that Primary, not taxpayers.
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Trying to make sense of the SCOTUS party hacks in ballot access cases is a waste of time —
since they screwed up Williams v. Rhodes in 1968 by NOT bringing up
Separate is NOT equal.
Brown v. Bd of Ed 1954.
— now 42 years of SCOTUS idiocy in ballot access cases — due to lots of MORON lawyers trying to be cute and outwit the SCOTUS party hacks.
#6
No. There will just be a different kind of sore loser. Instead theere will be those who could have won a partisan primary in their own party and prevailed in the general election against the other party’s nominee, but because of a large number of candidates in their own party and cross over voting from the other party, they lost the one party parmary under top-two.
This same “sore loser” could then go on and win the general election, if allowed, against the “top-two.”
#10 By definition, there is no cross-over voting in a Top 2 Open Primary. The two candidates that advance are chosen by the electorate as a whole, as is the ultimate winner in the general election.
#11
Are you really that obtuse.
The fact that the cross over voting is hidden does not mean that it is not voting that otherwise would be crossover voting.
My example stands.
Your obfuscation attempt fails because no one is so stupid as to believe what you wrote.
If write ins are allowed, there will be sore loser candidates who can win in the general election after the skewed outcomes of the top-two first round of voting.
14th Amdt, Sec. 2 for the indicated offices.
How many write-ins in 1868 ???
Could someone please explain WHY some states are still able to hold run-off elections for Congress/Senate races after the National voting date that Congress set for ALL of the States a few years after the Civil War ended?
Demo Rep: I thought that in 1868, the government-printed ballot had not been introduced in the U.S. yet, so technically all votes were write-ins at the time.
#25, Public Citizen had the same thought you express, and challenged Georgia’s December run-off for congressional elections in 1992. But the US District Court and the 11th circuit both said that the failure of anyone to get 50% in November, for Georgia elections, means that the November election “failed” so the state is justified in then holding a run-off, making an analogy to a state in which the November election had to be canceled because of a huge natural disaster, like a flood or hurricane or earthquake.
# 15 Believe it or not — the party hack parties printed their own ballots — for the voters to mark an X or write-in names (when there was required good handwriting/lettering).
OFFICIAL ballots in 1888-1890 in most regimes — with the resulting UNEQUAL ballot access laws.
Way too difficult for the SCOTUS MORONS to detect — who are getting more moronic in every ballot access case since 1968.
http://en.wikipedia.org/wiki/Ballot
The WAR for the survival of the human race against the EVIL robot party hacks continues on and on.
# 14
http://uscode.house.gov/download/pls/02C1.txt
See Sec. 7 AND the first paragraph of Sec. 8.
Some party hack regimes actually require a majority winner — thus the *failure to elect* on the Sec. 7 election day — with thus the following runoff election day.
Blame the party hack gerrymander MONSTERS in the gerrymander Congress — for permitting the runoffs to happen — which would allow for TOTAL chaos if the control of either house was at risk. 218-217 U.S.A. Reps. or 50-50 Senate
P.R. App.V. ONE election day.
#14 In 1845, when Congress set the common date for appointment of presidential electors, they included a special provision for states that required a popular majority to appoint their electors.
At that time, South Carolina was the only state where the legislature appointed electors, and they traditionally did so at the end of November at the opening of their regular session. If they had to appoint on the first Tuesday after the first Monday in November, then they would have to hold a special session, or switch to some other mode of appointment such as using the popular vote.
Congress considered making a special provision for South Carolina, after all as the debate pointed out they had already done so for majority-election States. Though they ultimately made no provision for South Carolina, the majority provision was retained, and is still present. It was last used in 1848 (Massachusetts) and in 1860 (Georgia). There is no reason that the NPV folks could not provide a runoff election in their scheme.
If you read the current statute, you might interpret it to mean that States might not immediately know who had been elected, until various recounts, etc. had occurred. But the legal interpretation is that the People made their appointment on election day, even if it takes some time for it to be determined definitively who had been appointed, and the provision in statute is actually for cases where no appointment had been made, such as no elector candidate having a popular majority.
In 1872, when the uniform election date for US Representatives was first set (an effort not completed until 1960), the law had a similar provision. At that time, an election was known as a “trial” (an attempt or try to elect). If no candidate received a majority, there would be another trial (or try to elect) a month or two later. On a few occasions, no representative was ever elected, though it was not for lack of trying.
As you may know, elections at the time were by write-in, though political parties might provide ballots with mechanically printed names. So there really wasn’t a way to have a runoff, where the candidates were limited to 2, for example. If the parties and voters were stubborn, they could vote time after time, with no candidate ever getting a majority.
So generally, the use of trials dwindled. Some States allowed plurality election on a second trial, and in others the two political parties preferred not to have a way for independent or 3rd party candidates to be recognized. But it was clear congressional intent to permit States to continue to provide for runoffs or trials under their “manner” authority. Congress could it it wished, eliminate such runoffs, or for that matter require runoffs.
*election* = making a choice — at least in my friendly dictionary.
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