Recently, the press has considered the idea that Donald Trump, if denied the Republican presidential nomination in 2024, would likely run as an independent or minor party candidate in the general election. Trump has not said he would do that, but the speculation doesn’t die down.
The spring 2023 Harvard Journal of Law & Public Policy has an article, “How State ‘Sore-Loser’ Laws Make it Impossible for Trump to Run a Successful Third-Party Campaign If He Loses the Republican Primary.” The authors are four attorneys in Holtzman Vogel Baran Torchinsky & Josefiak. The article concludes that 28 states would bar Trump from the general election ballot if he had run in that state’s presidential primary and yet did not become the Republican presidential nominee. The 28 states, the authors say, are Alabama, Arizona, Arkansas, Colorado, Georgia, Illinois, Kansas, Louisiana, Maine, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin.
The article has factual mistakes, but Alabama, Michigan, Pennsylvania, and Texas courts have indeed said that states can bar presidential candidates from the general election if they had run in the major party presidential primaries and then failed to gain that major party’s nomination. The first, a Texas decision filed in 1996, did not involve declaratory relief, but only denial of injunctive relief. The other three, filed in 2012 and 2016, did include declaratory relief.
Those decisions are (1) De La Fuente v Merrill, 214 F.Supp.3d 1241 (m.d. Alabama 2016); (2) Libertarian Party of Michigan v Johnson, 905 F Supp 2d 751 (e.d. Michigan 2012); (3) De La Fuente v Cortes, 751 Fed.Appx. 269 (Pennsylvania, 3rd circuit, 2018) (4) National Committee of the U.S. Taxpayers Party v Garza, 924 F.Supp.71 (w.d. Texas 1996).
However, it is also true that no state had ever barred a presidential candidate from the general election ballot, on “sore loser” grounds, until 2012, even though “sore loser” laws had existed for over a century. Before 2012, 34 states had printed “sore losers” on their presidential general election ballots, setting precedents that the laws don’t apply to presidential candidates. It should strike anyone that it is peculiar that past practice should suddenly count for nothing when the law is applied.
Types of “Sore Loser” Laws
The Harvard Journal article says four types of law would bar Trump: (1) explicit sore loser laws; (2) laws that require candidates to file simultaneously for a primary or the general election, and they must choose one or the other; (3) laws that require a minor party or independent candidate not to have been affiliated with a major party; (4) laws that set a deadline for filing as an independent that are so early, no one yet knows who will win a major party nomination.
The Harvard Journal article incorrectly states that disaffiliation requirements would bar Trump. Every court that has ever considered a disaffiliation law in connection with a presidential candidate has concluded that such laws cannot bar presidential candidates. There are three such decisions:
Arizona: the State Supreme Court ruled in Clayton v West, 489 P.2d 394 (2021) that Kanye West was not disqualified from being an independent presidential candidate because of his Republican registration. It reversed the lower court. West still didn’t get on the ballot, but only because his presidential elector candidates had not filed a “Statement of Intent” before the petition started.
Idaho: a state trial court ruled in Democratic Party of Idaho v Denney, cv01-20-14470, Ada Co., 2020, that Kanye West was not disqualified from being an independent presidential candidate because of his Republican registration.
Pennsylvania: the State Supreme Court ruled in In re Nader, 858 A 2d 1167 (2004) that Ralph Nader and his vice-presidential running mate, Peter Camejo, could not be barred from the ballot just because Camejo was a registered Green. Also, they could not be barred just because Nader-Camejo were the nominees of the Reform Party in a few states, but were independent candidates in Pennsylvania.
The Harvard Journal article does not mention any of these decisions.
The Harvard Journal article says Trump would be barred in Kansas and Ohio because the independent deadline is too early. But the Kansas and Ohio deadlines for independent candidates are both in August. If states had a petition deadline so early as to interfere with Trump, such laws would be unconstitutional under Anderson v Celebrezze.
Simultaneous Filing Problems
The article says that Trump would be barred from the ballot in some states because those states require a candidate who files to choose the method they will use. But this ignores the fact that no state requires the presidential nominee of a qualified party to file any sort of document after being nominated. When a qualified party nominates someone for president, they get on the November ballot because the state party submits a list of presidential elector candidates to the state elections office and announces to whom these electors are pledged. The presidential candidate does not sign or file any documents. The only exception is Pennsylvania, where the nominee is expected to choose candidates for presidential elector, but that exception is not Germaine.
Furthermore, 39 states have a procedure by which an unqualified party can qualify (by petition, registration drive, or showing a level of organization) before it has chosen any candidates. A Trump party could qualify without any filing by Trump himself.
Explicit Sore Loser Laws
That leaves only explicit sore-loser laws. Many states have sore-loser laws that ban the “loser” of a primary from the general election ballot. Those laws obviously don’t apply to presidential candidates because no candidate “loses” their party’s nomination by losing a single presidential primary.
The article acknowledges this point, which the Sixth Circuit had made in Anderson v Mills, 664 F 2d 600 (1981, Kentucky). That decision had kept independent candidate John Anderson on the Kentucky ballot in 1980, even though Anderson had run in the Republican presidential primary in Kentucky. The Sixth Circuit said the “loser” reference makes it obvious the sore loser law was not meant to apply to the president.
The four court decisions that interpreted sore-loser laws to apply to presidential candidates are contradicted by a decision of the Ohio State Appeals Court, Brown v Taft, Tenth District, 92AP-1267, Sep. 18, 1992. That decision allowed Lyndon LaRouche to appear as an independent in November even though he had run that year in Ohio’s Democratic primary. It says, “At the general election, the voters do not directly elect a president. Instead, the voters elect electors to the electoral college, who in turn cast votes for a presidential candidate…Applying this analysis to the present set of facts, the fact that Lyndon H. LaRouche, Jr., allowed himself to be the first choice of candidates for delegate to the Democratic National Convention does not mean that he sought party nomination by the declaration of candidacy for purposes of R.C. 3513.04.” The article does not mention this decision.
Three of the four decisions that did interpret the sore-loser laws restrictively are flawed:
The Texas decision filed by the U.S. Taxpayers Party in 1996 is flawed because the party sought an advisory opinion from the court instead of presenting an actual case or controversy. The judge should not have adjudicated it. The U.S. Taxpayers Party said it wanted to nominate Pat Buchanan, but Buchanan had already rebuffed the party’s desire to nominate him. Even if the decision had gone the other way, it would have made no difference in the Texas 1996 election. Federal courts are not permitted to issue advisory opinions.
The Michigan case lost by the Libertarian Party in 2012 is also flawed because when the U.S. District Court issued its opinion on September 7, it said that John B. Anderson had not been on the ballot in the 1980 Republican presidential primary in Michigan and, therefore the Libertarian Party had no precedent to depend on.
The judge was factually mistaken because Anderson had appeared on the 1980 Michigan Republican presidential primary and had still been allowed to appear on the November ballot as the nominee of his Anderson Coalition Party. Three days later, the judge issued an amended decision, acknowledging his mistake, but he wrote that “The Court did not in any way rely” on the incorrect fact. He then said that the Anderson precedent was not important because Michigan in 1980 had no procedure for an independent presidential candidate to get on the ballot. But that wasn’t accurate either. In 1976 a three-judge U.S. District Court created an independent procedure in McCarthy v Austin, 423 F.Supp. 990 (w.d.), and in 1980 another U.S. District Court created an even easier independent procedure for Michigan in Hall v Austin, 495 F.Supp.782 (e.d.).
The decision lost by Rocky De La Fuente in 2016 in Alabama is flawed because the U.S. District Court Judge refused to give any weight to the fact that the same law had already been construed in 1992 not to apply to presidential candidates. In 1992 Alabama had put Lyndon LaRouche on the November ballot as an independent even though he had run in the 1992 Alabama Democratic primary. The judge in the 2016 case said, “The Secretary of State has not offered any justification for Mr. LaRouche’s inclusion on the ballot, other than the fact that it happened ‘a long time ago and under a different Secretary of State.’ ”
When a law is ambiguous, but it has been construed already, it violates every canon of justice to set it aside on the basis that the past construction was “a long time ago” and the decision had been made by a different government employee.
Furthermore, Alabama didn’t have a presidential primary until 1980, so the fact that there had only been one favorable precedent should have been placed in context.
Chances are, if Alabama had had presidential primaries in 1912, Theodore Roosevelt would have set another precedent that the sore-loser law doesn’t apply. In 1912 no state had kept Roosevelt off the general election ballot as the Progressive nominee, even though he had run in all the Republican presidential primaries.
Why Sore Loser Laws Cannot be Applied to Presidential Elections
There are two reasons why sore loser laws cannot constitutionally be applied to presidential candidates. One of them was expressed by the Ohio State Court of Appeals decision Brown v Taft, quoted above.
(1) The true candidates in presidential general elections are the candidates for presidential elector. Article Two makes this clear.
If this were not true, the election outcomes of 2000 and 2016 would have violated the Fourteenth Amendment. In 2016, Hillary Clinton received 65,853,510 votes, and Donald Trump received 62,984,824 votes. And in 2000, Al gore got 50,992,335 votes, and George Bush got 50,455,156. The U.S. Supreme Court said in Gray v Sanders, 372 U.S. 368 (1963), “’ We the people’ under the Constitution visualizes no preferred class of voters, but equality among those who meet the basic qualifications…The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one person, one vote.”
Gray v Sanders struck down a Georgia law for primaries that made it possible for the person who got the most popular votes to fail still to get the nomination. It is the essence of equal treatment for voters that the candidate who receives the most votes must be declared the winner over a candidate who got fewer votes.
The outcome that Donald Trump, not Hillary Clinton, won the election would be incomprehensible if the true candidates had been Trump and Clinton. But they weren’t. The voters of each state were electing presidential elector candidates for their own particular state.
People who argue that the presidential candidates are the true candidates in November, instead of the candidates for presidential elector, have a duty to explain how the results of the 2016 and 2000 elections are consistent with the Constitution.
In 2020, the U.S. Supreme Court issued a unanimous opinion in Chiafalo v Washington, a case over whether states could punish disobedient presidential electors. The opening paragraph says, “Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each state appoints based on the popular returns. Those few ‘electors’ then choose the President.”
The four decisions interpreting sore-lower laws to apply to presidential elections did not meet their obligation to face up to Gray v Sanders. In the Michigan case, the judge wrote, “The individual whose name appears on the ballot, whether it be Gary Johnson, Barack Obama or Mitt Romney, is the only ‘candidate.” In the Alabama case, the judge quoted the Michigan decision and said the plaintiff’s point was “overly formalistic.” In the Pennsylvania and Texas cases, the decision did not even discuss the point about presidential electors being the true candidates.
(2) The U.S. Supreme Court ruled in 1995 in U.S. Term Limits v Thornton that states cannot add to the qualifications listed in the Constitution, but they can have “procedural” requirements.
A “procedural” requirement is required in order for election administrators to hold the election. Petitions for ballot access are procedural because, without them, the ballot might be cluttered with too many candidates, imperiling the administration of the election.
Disqualifying a presidential candidate because they engaged in a certain type of political behavior has no connection to an election “procedure.” When a presidential candidate seeks the nomination of a political party by running in its primaries, that is political behavior, and states cannot bar candidates for such reasons. Sore-loser laws are not needed for election administration.
Those who believe that “sore-loser” laws do apply to presidential candidates often mention Storer v Brown, 415 U.S. 724, a 1974 U.S. Supreme Court decision that upheld prior disaffiliation laws as applied to candidates for Congress. But when Storer was decided, the U.S. Supreme Court had not yet ruled that states cannot add to the constitutional qualifications listed for federal office. That only happened in 1995, so Storer is outdated. Storer did not even discuss the qualifications issue, except in a footnote at the very end of the decision, which says, “The argument is wholly without merit,” but doesn’t explain why, except to say the requirement no more establishes a congressional qualification than a petition does.
Sore-loser presidential candidates have appeared on general election ballots in the elections of 1912, 1924, 1980, 1984, 1988, 1992, 2008, 2012, 2016, and 2020. They are deeply rooted in U.S. history and include such significant figures as Theodore Roosevelt, Robert La Follette, John B. Anderson, and Ron Paul. Something is deeply wrong when political behavior that has been so well-established for so many years suddenly becomes illegal without any intervening legislative changes.
Richard Winger is an American political activist and analyst. He was born in Antioch, California, in 1943 and developed an interest in ballot access laws while still in high school. He has extensively studied the history of ballot access laws in each state since their inception. Winger has testified in approximately 500 lawsuits pertaining to ballot access laws from 1973 until the present. He graduated from UC Berkeley in 1966 with a degree in political science and has been publishing a monthly print publication, Ballot Access News, since 1985. Additionally, Winger serves on the editorial board of the Election Law Journal.