[EL] sore-loser laws for Congress

Mon Nov 12 15:13:38 PST 2012

I feel sore-loser laws are unconstitutional, as a result of US Term Limits v Thornton, 514 US 779 (1995).  I agree with Lillie Coney.  I also think sore-loser laws are unwise.

In Storer v Brown, Justice Byron White, the author, wrote footnote 16 saying "of course" sore loser laws don't violate Article One, but he didn't really explain why they aren't unconstitutional.  Storer v Brown came out in 1974, before the US Supreme Court had even decided whether states can add to the qualifications for Congress.  So he was premature to even express himself in 1974.

White's very short footnote 16 was insulting to Joseph Remcho and Paul Halvonik, who devoted half their brief to arguing the point about Article One.  For Justice White to dismiss one of their biggest arguments with a very short footnote, at the very end of the opinion, was not respectful.

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147

--- On Mon, 11/12/12, Lillie Coney <coney at lillieconey.net> wrote:

From: Lillie Coney <coney at lillieconey.net>
Subject: Re: [EL] Reps got more popular votes for US House in 1996 than Dems
To: "David A. Holtzman" <David at HoltzmanLaw.com>
Cc: richardwinger at yahoo.com, law-election at uci.edu
Date: Monday, November 12, 2012, 2:43 PM

Allowing candidates who are not successful in primaries or caucuses on the General election ballot may have a silver lining if they have stronger electability prospects. In any case, this approachcould limit competition and encourage third party efforts. For some time the thought of successful Independent Federal candidate seemed far fetched, but now there are Independents in the Senate.
The other thought is this approach might shift the focus of dollars and energy to the primary level. The primary caucus process is wherecandidates with little in resources may find an opportunity to entercompetition for elected office. The question about primary and caucuselections are managed by each political party. The parties will need to think about how they would like to manage the issue of unsuccessfulprimary or caucus candidates joining the ballot in the general electionsas independents.
I do not see how one party can ban someone from a general electionballot who meets the requirements established by a state. Evenif a state passes a law that bans a candidate that ran in an unsuccessful political party primary or caucus election I do not see how they could dothis without a legal challenge being a huge chance of being successful.  The person running would not be running under the party standard that is challenging their presence on the ballot. Would a challenge be seen as limiting political speech? Is there a right to run for elected office--has this been established by previous court decision? 
Lillie
On Nov 12, 2012, at 4:01 PM, David A. Holtzman wrote:

    So Richard,

      What’s your position now on holding just *part* of an election
      before November?

      Say, a primary in September?  Constitutional?  Legal?

      Say, a primary in June?  Constitutional?  Legal?

      With primary losers barred from the ballot (even as write-ins) in
      November?    Constitutional?  Legal?

      With write-ins allowed only in the primary, not in November?    Constitutional?  Legal?

        - dah

    On 11/12/2012 12:30 PM, Richard Winger
      wrote:

            The Clerk of the US
              House of Representatives data for 1996 doesn't include the
              September 21, 1996 election results for US House in
              Louisiana.  That is why the Clerk's chart shows Democrats
              got more popular votes than the Republicans nationwide,
              because the Clerk's data only has the Louisiana returns
              that took place in November, which was only 2 districts.

              The US Supreme Court ruled in 1997 in Foster v Love that
              Louisiana was breaking the federal law by holding its
              congressional elections in September.  So, the US Supreme
              Court agreed with my approach, that the Louisiana election
              in September was an election, and therefore it is rational
              for me to have included the September results in those 5
              districts.

              Rhodes Cook agrees with me.  See America Votes 1996 (vol.
              22), page 4.  His compilation of the national US House
              vote for 1996 by party is:  Republican 43,902,303;
              Democratic 43,626,470.

              Richard Winger

              415-922-9779

              PO Box 470296, San Francisco Ca 94147

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    -- 

      David
        A. Holtzman, M.P.H., J.D.

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