“Why Sore Loser Laws Can’t Be Applied to Presidential Candidates”

Richard Winger at Smerconish:

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….

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