[EL] hoping to stimulate discussion about "sore loser" laws and pres primaries

[Richard Winger]

The recent decision of a US District Court in Michigan, saying the state's sore loser law can be used to keep Gary Johnson off the ballot, is wrong in so many ways, I want to test my ideas and hope others will comment.

The decision was wrong for many reasons:

1. Precedent.  Michigan's "sore loser" law was passed in 1955 and has never been amended.  John B. Anderson was permitted to run in Michigan's presidential primary in 1980 and he still was put on the ballot as a minor party nominee in November.  The state and the judge try to get around this by saying that there was no statutory procedure for independent candidates in Michigan in 1980, but that is both irrelevant and untrue.  It is untrue because there was a judically-created procedure in Michigan for independent candidates, creating by a US District Court in McCarthy v Austin and used by McCarthy in 1976 and by Gus Hall in 1980.

2. State interest.  Michigan claims its state interest is stability, yet Michigan lets independent presidential candidates on the November ballot even if they have run in a presidential primary, so how sincere can this so-called interest be?  Also they can qualify as declared write-in candidates in November even if they ran in the presidential primary.

3. The U.S. Constitution mandates that states are electing presidential electors in the first week in November.  Presidential candidates aren't officially elected until December when they receive electoral votes.  Presidential candidates aren't actual candidates in popular elections, for voting purposes, in November; their names appear on the November ballot as labels for competing slates of electors.

4. Tradition and history.  No state in history, until Michigan 2012, had ever kept a minor party presidential nominee off a general election ballot on grounds that the candidate had run in a presidential primary of a different party.  Presidential candidates who ran in presidential primaries and still appeared on the November ballot as nominees of another party include Theodore Roosevelt, Robert La Follette, David Duke, and especially John Anderson (who appeared on the November ballot in 1980 in all states, and who had run in presidential primaries in 22 places, and who was generally an independent candidate but in some states he was a minor party nominee).

5. Practicality. It is impractical for any state to enforce a sore loser law in a presidential election because the disadvantaged minor party can simply find someone with the same name as the presidential candidate to be its official candidate.  This doesn't work for other public office, but it works for the presidential election because the true candidates are the presidential elector candidates.  The state tricked the Michigan Libertarian Party, so as not to make this possible this year, but a state can't pull the same trick in the future because the party will be aware of the trick.  The trick is that although the party submitted the name of an alternate Gary Johnson back in June, the state simply refused to respond as to whether it would print the name of the alternate on the ballot in case Governor Johnson was on the ballot.  Finally, on September 7, the state for the first time said it would also refuse to print the alternate.  Then he sued
 and the court said the lawsuit was too late.  In the future, a party can simply find and certify the alternate only.  That will happen if the decision in this case can't be reversed.

6. Statutory construction.  If the 1955 sore loser law had really been intended to apply to presidential primaries, then the law should be fleshed out to say what happens to the vice-presidential candidate.  Why can't his name be on the ballot?  He isn't a sore loser.  In 1968 the California November ballot carried the vice-presidential candidate of the Peace & Freedom Party but no presidential candidate, but counted votes for the vice-presidential candidate and the slate of electors.  Many states that elect Governor and Lt. Governor jointly in the general election ballot have printed a candidate for one office but left the other blank, including Wisconsin in 2010.

Michigan didn't have a presidential primary back in 1955, so of course the Michigan law didn't cover all that.

All of U.S. history, and even world history, would be different if states in 1912 had tried to impose "sore loser" laws and had barred Theodore Roosevelt from running.  

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147
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