Replacing Ney on Ballot

Just as it is a mistake to assume that the rules governing the replacement of Tom DeLay on the ballot in Texas were the same rules governing the replacement of Robert Torricelli on the ballot in New Jersey, it is a mistake to equate either of these with the rules for replacing Ohio's Bob Ney, who has announced he will not seek reelection to the House. Each of these rules are set by the state, not by the federal government, even though these are all races for seats in the U.S. House or Senate.

Ed Still noted some of the applicable rules for replacing a withdrawing a U.S. Senate candidate. Now comes word that Ney's handpicked replacement, State Senator Joy Padgett, may not be eligible to be appointed in his place. Washington Wire, via Political Wire, reports:

State Sen. Joy Padgett, Ney’s hand-picked successor for his seat, could fall under a little-known provision of Ohio election law, dubbed the “sore loser” provision. It prevents a candidate who loses in one primary from running in another during the same election cycle. Earlier this year, Padgett was the primary running mate of gubernatorial hopeful James Petro, who lost to the ticket of Ken Blackwell and his running mate, Ohio State Rep. Tom Raga.

Even if Padgett succeeds in getting her name on the new primary ballot, the controversy could invite other Republicans to jump into the unexpected race. James Harris, who lost to Ney in the Republican primary in May, said he's considering running again, although the sore loser provision may apply to him, too.

The relevant provision appears to be Ohio Revised Code section 3513.052(B):

(B) The secretary of state or a board of elections shall not accept for filing a declaration of candidacy and petition, a declaration of intent to be a write-in candidate, or a nominating petition of a person seeking to become a candidate if that person, for the same election, has already filed a declaration of candidacy, a declaration of intent to be a write-in candidate, or a nominating petition, or has become a candidate through party nomination at a primary election or by the filling of a vacancy under section 3513.30 or 3513.31 of the Revised Code for:

(1) Any federal, state, or county office, if the declaration of candidacy, declaration of intent to be a write-in candidate, or nominating petition is for a state or county office...

"FEC May Exempt Issue Ads"

Roll Call offers this report (paid subscription required). My earlier coverage is here.

End of the Line in Tom DeLay Ballot Case

As I predicted, further appeals in the Tom DeLay ballot case were not successful. Lyle Denniston reports that Justice Scalia denied a motion for an emergency stay in the Tom DeLay case, and that Texas Republican Party lawyer Jim Bopp does not plan a further appeal to the full court.

This means that Republicans have essentially two options: (1) have DeLay rescind his ineffective withdrawal and run for office, perhaps pledging to resign if elected triggering a special election. (2) let DeLay withdraw, and run a write-in campaign for another Republican candidate. As I noted on July 9: "Even though the district is a Republican one, it will be hard for Republicans to mount a successful write-in campaign, especially if legal proceedings drag out for a while before the party unites behind a write-in candidate and explains to voters how to cast a write-in ballot."

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-0019
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rick.hasen@lls.edu
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