On August 7, the Third Circuit upheld the Pennsylvania government’s position that presidential candidates who run in presidential primaries cannot then appear on the general election ballot as an independent candidate. De La Fuente v Cortes, 17-3778. The eleven-page opinion is marked “Not precedential” and will not be reported.

In 2016, Rocky De La Fuente appeared on the ballot in Pennsylvania’s Democratic presidential primary, and he also petitioned to be on the November ballot as an independent. Even though no one challenged his independent petition, the state elections office on its own motion disqualified him, because he had run in the presidential primary.

There had never been a precedent in Pennsylvania on this point. Although John Anderson ran in twenty Republican presidential primaries in 1980, and then appeared as an independent on the ballot in all states, he didn’t appear on the ballot in the Republican presidential primary ballot in Pennsylvania (although his write-ins in that primary were counted and the results published).

The Third Circuit decision is extremely brief. It simply says that the U.S. Supreme Court had upheld “sore loser” laws in Storer v Brown in 1974. It didn’t acknowledge that Storer did not deal with a presidential candidate. The Third Circuit decision did not mention any of the reasons why “sore loser” laws shouldn’t be interpreted as applying to presidential primaries. Those reasons are: (1) the true candidates in November are presidential elector candidates, not the candidate himself; (2) no one ever loses a party presidential nomination in any one presidential primary.

The decision also upholds the Pennsylvania law that won’t let an out-of-state resident circulate a primary petition, on the theory that freedom of association means that if the Democratic and Republican Parties (the only parties that ever have primaries in Pennsylvania) don’t want out-of-state circulators, they can prohibit them. The record in this case tried to show that the Democratic and Republican Parties actually have no policy on this matter, and did not intervene in the case, but that evidence didn’t get into the record.

The panel did not permit any oral argument. The decision is by Judge Marjorie Rendell, a Clinton appointee; and is signed by Judge Patty Shwartz, an Obama appointee, and Richard Nygaard, a Reagan appointee.