[EL] Ohio's sore loser law // state laws relating to "faithless" electors

Wed Mar 23 10:01:15 PDT 2016

The people who would definitely have a treasure trove of information about faithless elector laws would be the National Conference of Commissioners on Uniform State Laws (NCCUSL).  They studied the topic extensively and eventually endorsed a “Uniform Faithful Presidential Electors Act.” Their recommended state law has been considered by a number of state legislatures (and passed by some).  

Dr. John R. Koza, Chair
National Popular Vote
Box 1441
Los Altos Hills, California 94023 USA
Phone: 650-941-0336
Fax: 650-941-9430
Email: john at johnkoza.com
URL: www.johnkoza.com
URL: www.NationalPopularVote.com

-----Original Message-----
From: Goldfeder, Jerry H. [mailto:jgoldfeder at stroock.com] 
Sent: Wednesday, March 23, 2016 6:26 AM
To: 'Richard Winger'; Rick Hasen; Jon Sherman
Cc: law-election at UCI.edu
Subject: Re: [EL] Ohio's sore loser law

Is there published a compilation of state laws relating to electors/"faithless" electors?

Jerry H. Goldfeder
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
212-806-5857
917-680-3132
jgoldfeder at stroock.com
www.stroock.com/people/jgoldfeder

Please consider the environment before printing this email

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Richard Winger
Sent: Monday, March 14, 2016 5:59 PM
To: Rick Hasen; Jon Sherman
Cc: law-election at UCI.edu
Subject: Re: [EL] Ohio's sore loser law

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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