[EL] Ohio's sore loser law

Mon Mar 14 14:59:15 PDT 2016

Sore loser laws for president can't be enforced because the true candidates in November are presidential elector candidates, and they aren't sore losers.  And the Ohio law that says independents can't have been associated with a party (which is different than a sore loser law) would be no problem because Trump or whoever could just choose presidential elector candidates who were true independents.

The state court said Ohio's presidential primary doesn't really elect delegates because after the primary is over, the delegates still aren't elected, just the apportionment of how many delegates each presidential candidate deserves.  That objection can't be made to November elections for presidential elector candidates.  They really are elected in November.

Another reason the Ohio sore loser and indp disaffiliation laws can't be enforced for president is that they add to the constitutional qualifications for federal office.  I know Storer v Brown rejected that theory in 1974, but that was before 1995, when the US Supreme Cort said for the first time states can't add to the qualifications.  Back in 1974 that wasn't settled.  Furthermore since the 1995 US Term Limits decision, the 9th, 10th, 5th, and 2nd circuits have ruled that candidates for congress can't be kept off the ballot because they aren't registered voters or because they don't live in the state.  Residency is only as of election day, not before.

A third reason sore loser and prior disaffiliation laws can't realistically work for president is that the excluded candidate, say Donald Trump, is always free to put Donald Trump, Jr on the ballot as an independent.  Then Jr & Sr Trump and their electors could tell the public that if those electors are elected, they would really vote for Trump Sr.  Those electors might be subject to a fine, but the state can't tell them whom to vote for in December in the electoral college.

North Carolina and Montana laws say an elector who violates his or pledge is deemed to have resigned, and will be replaced by the remaining electors.  But if the entire slate votes different than what they had pledged, there is no one to replace them.  Anyway Ohio has no such law.

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147

--------------------------------------------
On Mon, 3/14/16, Jon Sherman <jsherman at fairelectionsnetwork.com> wrote:

 Subject: Re: [EL] Ohio's sore loser law
 To: "Rick Hasen" <rhasen at law.uci.edu>
 Cc: "law-election at UCI.edu" <law-election at uci.edu>
 Date: Monday, March 14, 2016, 10:15 AM

 Without commenting on
 the 17 year-old voter primary voter case, I did think I
 should note that Ohio's current sore loser statute
 clearly includes presidential primary candidates. I'm
 not sure when it was amended but I don't think
 there's any question that it would keep Donald Trump off
 the ballot as an independent candidate. See Ohio
 Rev. Code Ann. § 3513.04: 
 No person who seeks party nomination for an
 office or position at a primary election by declaration of
 candidacy or by declaration of intent to be a write-in
 candidate and no person who is a first choice for
 president of candidates seeking election as delegates and
 alternates to the national conventions of the different
 major political parties who are chosen by direct vote of the
 electors as provided in this chapter shall be permitted
 to become a candidate by nominating petition, including a
 nominating petition filed undersection 3517.012 of the
 Revised Code, by declaration of intent to be a write-in
 candidate, or by filling a vacancy under section 3513.31 of
 the Revised Code at the following general election for any
 office other than the office of member of the state board of
 education, office of member of a city, local, or exempted
 village board of education, office of member of a governing
 board of an educational service center, or office of
 township trustee.
 I take it the statute used to only reference a
 "declaration of candidacy" (prompting
 Richard's argument) but the statute appears to have been
 changed. 
 On Wed, Mar 9, 2016 at
 12:06 PM, Rick Hasen <rhasen at law.uci.edu>
 wrote:

           “Sanders
 lawsuit: Ohio official
               changed law to block 17-year-olds from
 voting”

           Posted
 on March
 9,
                 2016 7:35 am by Rick
 Hasen

         CNN:

             Bernie
               Sanders’ campaign on Tuesday sued Ohio
 Secretary of State
               Jon Husted, accusing the Republican of quietly
 changing a
               law in an effort to block 17-year-olds from
 voting in the
               state’s presidential primary next week.

           Husted,
             however, insisted that there had been no change
 in the law.

         You
           can read the complaint here.
         Richard
 Winger:

           The
             Secretary of State believes that the law does
 not apply to
             presidential primaries, because presidential
 primaries are
             really elections for Delegate to national
 conventions.
             However, the Secretary’s stance on this
 contradicts what he
             has told the press about whether the Ohio sore
 loser law and
             the Ohio law on affiliation of independent
 candidates apply
             to presidential primaries.

         Posted
 in campaigns, voting

 -- 
 Jon ShermanCounsel
 Fair Elections Legal
 Network*
 1825 K Street NW, Suite 450Washington, D.C. 20006
 Phone: (202) 248-5346jsherman at fairelectionsnetwork.com
 www.fairelectionsnetwork.com

 *The contents of this email should not be
 construed as legal advice.

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