Former Congressman Mickey Edwards has this op-ed in the New York Times, condemning “sore loser” laws. “Sore loser” is actually a term that has come to represent any election law that keeps an otherwise qualified candidate off the general election ballot because he or she was too closely associated with a qualified political party. The term includes not only candidates who run in a partisan primary and lose; it also includes candidates who want to be independent candidates in November but can’t be because they were registered as a member of a qualified party in the recent past; and it also includes laws that force all candidates for a particular office to file on the same deadline, and forces them to choose whether to run in a partisan primary or to file as an independent for the November election.

Last year, the U.S. Supreme Court refused to hear a Michigan Libertarian Party appeal against Michigan’s “sore loser” law as applied to presidential primaries. If the Edwards op-ed had run in the New York Times a few months earlier, conceivably that might have helped persuade the Court to hear the case.

On January 23, the Tenth Circuit overturned a Colorado campaign finance law that lets contributors give $400 to a candidate for the legislature who is nominated in a primary, but only $200 to a candidate who is nominated in a minor party convention, or with the independent candidate petition procedure, or who is a write-in candidate. The decision is Riddle v Hickenlooper, 13-1108, and is written by Judge Robert Bacharach, an Obama appointee, and co-signed by Judge Neil Gorsuch, a Bush Jr. appointee, and Bobby Baldock, a Reagan appointee. UPDATE: here is a newspaper story about the decision.

The decision overturns the U.S. District Court decision, which had upheld the law. Although all three Tenth Circuit judges agree, Judge Gorsuch wrote separately to discuss the appropriate level of scrutiny. The basis for the decision is equal protection. It is very rare for minor parties, independent candidates, and their supporters, to win a constitutional election law case on equal protection grounds; most laws striking down ballot access restrictions and other laws that injure minor parties and independents are won on First Amendment grounds.

The decision equivocates on whether the law is subject to strict scrutiny, or intermediate scrutiny, but concludes that the law is unconstitutional under either standard. The panel’s decision says, “Here the state of Colorado has created different contribution limits for candidates running against each other, and these differences have little to do with fighting corruption.” The concurrence says, “The only reason I can imagine for Colorado’s challenged contributory scheme is a bald desire to help major party candidates at the expense of minor party candidates…A state cannot adopt contribution limits that so clearly discriminate against minority voices in the political process without some ‘compelling’ or ‘closely drawn’ purpose – and Colorado has articulated none.”

Lowell Weicker, a former Republican U.S. Senator from Connecticut, and a former Governor elected on the “A Connecticut Party” line, has urged the Republican Party to again let independents vote in its primaries.

The Connecticut Republican Party won a lawsuit in the U.S. Supreme Court in 1986, to force the state to let independents vote in the Republican Party’s primary. That decision, Tashjian v Republican Party of Connecticut, was a landmark victory for First Amendment rights for political parties. Ironically, a few years after winning the lawsuit, the Republican Party went back to excluding independents from voting in its primaries. See this story about Weicker’s recent remarks.

Connecticut Democrats have never allowed independents to vote in their primaries. The state didn’t even have primaries until the 1950’s; previously party meetings chose all party nominees.