User:Phinbart/sandbox7

Sore loser laws

Sore loser laws are a type of statute within a state that prohibits, or provides substantial difficulty for, someone who has contested the primary of a political party and lost to subsequently run in the general election, such as a candidate of a third-party or as an independent.^:10:14 All states bar three are deemed to have some form of significant sore loser law.^:596

Many have accused sore loser laws of being imposed to the benefit of the major parties (namely, the Democrats and the Republicans), to protect their "primacy". They have been criticised for their abilities to engender and entrench "major-party rule and prevent dissent", being designed to preclude candidates whose lose a party primary from being able to run for the same office as a candidate for another party or as an independent, to "mount a second attempt" for the office. As a result, they are said to "promote party discipline" by ensuring those unsuccessful in the primary cannot run against the party's nominee in the general election and attempt to cost them victory, therefore "protect[ing] the major parties' prerogatives" by ensuring "divisive primary splits" do not continue into the general election. Consequently, they have fielded criticism for reinforcing the dominance of the two-party system and, by presenting themselves as a "barrier to third-party and independent challenges", limiting the options of voters. However, they have been defended for their ability to "eliminate fringe candidates".

Background, and types of sore loser law

Sore loser laws by state as of 2018

  Sore loser laws do not exist in these states

  Sore loser laws do exist in these states, via direct and specific legislation banning third-party/independent candidacies for primary losers

  Sore loser laws do exist in these states, via limitations on cross-filing

  No data/not a state

Sore loser laws by date of their adoption

  Before 1930

  1930s and 1940s

  1950s and 1960s

  1970s

  1980s

  1990s

  21st century

  No sore loser laws

  No data/not a state

Said to in some states accompany already existing burdens on ballot access",, all but three states have some form of a sore loser law, "the language and severity of which vary"; they enforce either sore loser statutes or early filing deadlines that accomplish the same purpose", and "can take the form of outright statutory prohibitions, provisions that require non-major-party candidates to file to run for the general election prior to the date on which the primary is held [known as cross-filing limitations], or other limitations."^:596 For instance, some just block third-party efforts, while "others apply to independent or even write-in candidacies". Gillespie wrote that "[w]hatever its form and wording, the practical effect of sore loser policy is to banish from the general election candidates seeking to run for an office for which earlier in the year they tried but failed to win the nomination of a political party."

Summary

While some states have specific and explicit sore loser laws, other states deploy their equivalence through other legislation:

• Fifteen states "specifically disqualif[y] any candidate who has lost a party primary from running in the general election for the same office."
• Twenty-five other states "achieve the same result by effectively prohibiting any primary candidate from running in more than one state primary or running as an independent candidate. That is, 40 or 50 states made winning their party's primary election the exclusive route to the general election ballot for primary candidates."
• Five states "opened this door only slightly wider by allowing candidates to cross-file as an independent candidate in addition to a party primary, or to file for more than one primary, but their deadlines required candidates to cross-file well before the elections such that their dual affiliations would be known to the primary electorate.
• "In two other states with nonpartisan primaries only the top two vote-getters proceed to the general election, effectively eliminating sore loser opportunities. In sum, only three states allowed primary losers subsequently to file to appear on the general election ballot as another party's nominee or as an independent."^:457

There are different types of sore loser law:

• Direct —- "expressly bars a candidate who failed to win the nomination from running in the general election."^:313
• Via limitations on cross-filing —- candidates being prohibited from "running in more than one primary, or running in a primary and as an independent candidate, in the same election cycle"^:313
  • Burden, Jones and Kang (2014) said that cross-filing limitations are "largely administrative in nature", and necessitate candidates to be a member of a party in order to run in their primary, sets filing deadlines "well in advance of the primaries for all candidates", or requires independent candidates to have no affiliation with any party for "a certain period of time in advance of the election".^:313-314 As a result, candidates need "to choose at the outset of the election cycle one party primary or an independent candidacy as the sole path to the general election ballot".^:314

Sore-loser laws by state

There exists a dispute within research into sore loser laws. Richard Winger claimed, in 2015, there were no sore loser laws in Arizona, Delaware, New York, Oklahoma, and West Virginia, while researchers Michael Kang and Barry Burden stated in 2018 - with Bradley Jones, also in 2014 - that only the states of Connecticut, Iowa and New York have no sore loser laws. The following table is based on research papers published by the latter.

Sore-loser laws by state^:305

State	Sore-loser laws?	Method	Adopted	Relevant/specific law/statute/legislation
Alabama	Yes	Via cross-filing laws	1977	[?]
Alaska	Yes	Via cross-filing laws	1980	Sec. 15.25.105.
Arizona	Yes	Via cross-filing laws	1970	[?]
Arkansas	Yes	Specific law prohibiting	1955	Arkansas Code § 7-7-204
California	Yes	Via cross-filing laws	1917	Storer v. Brown (1974)
		Non-partisan primaries
Colorado	Yes	Specific law prohibiting	1963	C.R.S. 1-4-105
Connecticut	No	No sore-loser laws
Delaware	Yes	Via cross-filing laws	1978	[?]
Florida	Yes	Via cross-filing laws	1970	99.021 99.061
Georgia	Yes	Via cross-filing laws	1983	[?]
Hawaii	Yes	Via cross-filing laws	1967	[?]
Idaho	Yes	Specific law prohibiting	1976	34-704
Illinois	Yes	Via cross-filing laws	1989	[?]
Indiana	Yes	Specific law prohibiting	1967	Indiana Code Title 3. Elections § 3-8-1-5.5
Iowa	No	No sore-loser laws
Kansas	Yes	Via cross-filing laws	1989	[?]
Kentucky	Yes	Specific law prohibiting	1920	118.345
Louisiana	Yes	Non-partisan primaries	1978	[?]
Maine	Yes	Via cross-filing laws	1973	[?]
Maryland	Yes	Specific law prohibiting	1957	§5–706
Massachusetts	Yes	Via cross-filing laws	1976	[?]
Michigan	Yes	Via cross-filing laws	1988	[?]
Minnesota	Yes	Via cross-filing laws	1981	[?]
Mississippi	Yes	Via cross-filing laws	1906	[?]
Missouri	Yes	Via cross-filing laws	1977	[?]
Montana	Yes	Via cross-filing laws	1991	[?]
Nebraska	Yes	Specific law prohibiting	1994	32-605
Nevada	Yes	Via cross-filing laws	1963	[?]
New Hampshire	Yes	Via cross-filing laws	1981	[?]
New Jersey	Yes	Specific law prohibiting	1915	N.J. Stat Ann. § 19:13-8.1
New Mexico	Yes	Specific law prohibiting	1939	[?]
New York	No	No sore-loser laws
North Carolina	Yes	Via cross-filing laws	1967	[?]
North Dakota	Yes	Specific law prohibiting	1975	16.1-13-06
Ohio	Yes	Via cross-filing laws	1929	[?]
Oklahoma	Yes	Via cross-filing laws	1987	[?]
Oregon	Yes	Specific law prohibiting	1939	249.048
Pennsylvania	Yes	Via cross-filing laws	1937	[?]
Rhode Island	Yes	Via cross-filing laws	1981	[?]
South Carolina	Yes	Specific law prohibiting	1950	SECTION 7-11-10
South Dakota	Yes	Specific law prohibiting	1977	Codified Law 12-7-5
Tennessee	Yes	Via cross-filing laws	1975	[?]
Texas	Yes	Specific law prohibiting	1985	Sec. 172.027. Sec. 172.086.
Utah	Yes	Via cross-filing laws	1994	20A-9-201. 20A-9-501.
Vermont	Yes	Via cross-filing laws	2010	[?]
Virginia	Yes	Specific law prohibiting	1932
Washington	Yes	Non-partisan primaries	2004	RCW 29A.24.311
West Virginia	Yes	Via cross-filing laws	1919	[?]
Wisconsin	Yes	Via cross-filing laws	1977	[?]
Wyoming	Yes	Via cross-filing laws	1973	WY Stat § 22-5-302 (2014)

Explanations and motivations

Despite accusations that sore loser laws are designed to reinforce the supremacy of the two major parties, Burden, Jones and Kang (2014) say that while cross-filing limitations "have basically the same practical effect as true sore loser laws", they anticipate the "legislative motivation for their adoption" are different to, or more nuanced, than a "narrow desire to tighten the party bases' control over nominations". They use the example of Vermont, the latest state to adopt a form of sore loser laws, in the form of cross-filing limitations, moved the state-designated dates for party primary elections, and the deadlines by which independents must declare their candidacies, earlier in the year, primarily in order to comply with the requirement within the federal MOVE Act that general election ballots must be printed at least 45 days before the general election. As a result, they say it "made it impossible for a primary loser to mount a sore loser campaign subsequently as an independent"; one local editorial suggested Vermont seemed to have adopted sore-loser laws "perhaps inadvertently".^:314

Connecticut Senator Joe Lieberman, a Democrat, was able to run as a third-party candidate in the 2006 Senate election, after collecting enough signatures by the deadline; this was the day after his party's primary,^:15 in which he was defeated by a "more liberal insurgent", Ned Lamont.^:303 Stricter sore loser laws in Connecticut would have precluded Lieberman from running at all, and the rewarding of the insurgent, however antagonism within the Democratic Party to the war in Iraq - which Lieberman supported - meant that Lamont's nomination was, perversely and in effect, simultaneously protecting the party's "ideological brand".

Burden, Jones and Kang (2014) say that the majority party in a given state could enact sore-loser laws in order to "maintain the purity of their ideological brand and to punish insurgents", and if so motivated, would be more likely to implement such laws through "express sore loser prohibitions rather than incidentally through administrative cross-filing limitations", finding that cross-filing limitations are motivated more by "the independent need for standardization and predictability regarding filing deadlines and election dates."^:314 The "largely unintentional means" through which cross-filing limitations prevent sore-loser candidacies provides greater evidence for how sore-loser laws contribute to, and further, political polarisation.^:314

However, they admit party polarization is "undoubtedly the result of multiple forces", with some factors having greater effects "more in particular eras than others", and that sore-loser laws "cannot explain polarization in the nineteenth century, but in the modern era they appear to contribute to the gulf between the parties."^:320 They make clear they are not making the point that sore-loser laws are responsible "for the general increase in polarization over the last few decades", but their research demonstrates that "their effect is about the same in each election over this time period", and "their increasing prevalence means that the effect materializes in a larger number of states and districts than it once did."^:321

They also suggest sore-loser laws impact on the type of candidates that enter a race, and also the politics those who do adopt; with potential candidates of a major party aware that they will be unable to challenge it and its candidate in the general election if they fail to win its primary, "[e]ven with uncompetitive primary elections" the laws encourage candidates to "take somewhat more extreme positions to prevent serious nomination challenges."^:321

Impact

Effect on political polarisation

As aforementioned, areas of research have suggested, and found, that sore loser laws contribute in part to the growing polarisation taking place in the United States, with regards to how such laws impact on party primaries and their ability to benefit candidates that are less moderate in achieving the party's nomination for candidate at a general election, specifically at the congressional level.

In summary, Kang and Burden (2018) found that "restrictions on sore loser candidates contributed to party polarization in Congress and state legislatures", to the extent that "candidates under sore loser restrictions were more ideologically extreme, particularly so for Republicans, such that the gap between Republican and Democratic candidates was about 10 percent greater in states with sore loser laws."^:457 They quote Burden, Jones and Kang (2014), which found "sore loser laws have a demonstrable impact on growing polarisation", and that "a nontrivial portion of the ideological gap between the Democrats and Republicans can be attributed" to them; they do not argue the laws are directly responsible for the "recent increases in congressional party polarization", but that "their effects are relatively constant across time, thus contributing an additional amount of polarization on top of more general trends in polarization," and "as sore loser laws have become more common over time, their cumulative effect has grown because they now affect a larger number of states and districts".^:300 They explain this further, summarising that sore-loser laws "contribute to partisan polarization in addition to the general increase in polarization evident across all states" and caveating with a clarification that they "do not conclude that the rise in polarization is due to sore loser laws", but as "they have become more common in recent years, their cumulative effect on polarization has increased because it is multiplied through a larger number of states and districts."^:317

Impact on primaries and nominations of candidates

Kang and Burden (2018) have suggested that sore loser laws contribute to "insurgent and nontraditional candidates fac[ing] more pressure to run for a major party nomination than as an independent or third-party candidate in the general election", which they state helps reinforce the "two-party system" while potentially reducing competition.^:456 Burden, Jones and Kang (2014) asserted that the laws "help ensure that the party primary election is a winner-take-all affair", by preventing candidates who have lost in the primary instead launching an independent or third-party bid using and expanding upon what they have built up in their primary campaigns and sucking away support and votes from certain parts and wings of the party (potentially voters who are less supportive of the candidate nominated) that would otherwise have automatically gone towards the primary winner in the general election. As a result, sore loser laws dismantle "one of the most potent threats of losing primary candidates", that being the risk of "splitting the party in the general election", therefore "strengthen[ing] the party at the expense of the individual politician";^:301 while both parties and their candidates wish to win office, "the collective needs of the former are sometimes at odds with the individual desires of the latter",^:319 with parties "prefer[ring] to have control over the nomination process because it provides order, maintains ownership of their brands, and selects candidates more acceptable to the ideological base", while candidates "in contrast, prefer the freedom to pursue a political career as they wish, either within the party structure or outside of it".^:319-320

A campaign billboard for Harriet Hageman, who successfully challenged incumbent Liz Cheney for the Republican nomination for representative for Wyoming. Cheney, a senior House Republican and erstwhile bastion of core party and conservative principles, had been censured by her state's Republican party after becoming critical of Donald Trump, while Hageman was vocally pro-Trump. This was seen as evidence of the party and its base prioritising loyalty to Trump over ideology in evaluating candidates; Cheney's replacement as House Republican leader was supportive of Trump, but her voting record less aligned in comparison. Cheney's low favourability amongst Republicans but high among Democrats saw her campaign encourage voters registered as Democratic and Independent to switch to Republican to vote for her in the primary.

It is also contended that sore loser laws also contribute to party polarization, and that together with the ballot access laws that "encourage candidates to seek a party's nomination as a means to office", they hurt the chances of more moderate candidates in party primaries in which candidates who are more akin to the fringes than the centre-ground of parties are more successful, due to the ideological make-up of primary voters - such as moderates having difficulty in primaries "decided by conservative Republicans or liberal Democrats" in areas of the United States that are more ideologically away from the centre.^:457 Burden, Jones and Kang (2014) argue that with the "power over candidates provided by sore loser laws, the party base has greater ability to pressure candidates to toe the party's ideological line",^:301 with "nominations [being] organized by activists and interest group leaders who desire the most extreme nominee they can get past the general election voter", and that "[w]hen the party bases are polarized—that is, the median primary voters are located to the left and right of the general election median voter—they seek more ideologically extreme nominees in line with their own more ideologically extreme preferences".^:301-302 Consequently, this has meant that moderates - or those considered so relatively speaking to their parties nationally, state-wide, or more locally - have to adopt policies and views that are more 'extreme' to succeed, and "nominees who emerge in a system where sore losers are banned will be more ideologically polarized than those who run in a system where sore losers are permitted."^:457

Dave Tarr and Bob Benenson, in Elections A to Z, noted how sore-loser laws were challenged on their "contributing to ever more polarized political parties", because of their "integral" nature to party primary contests meaning they "have the potential to filter out candidates with moderate political stances that might appeal to the wider public in a general election contest", and since the mid-1990s have enabled primaries to have "often became vehicles for the most dedicated, and often most liberal or most conservative, elements in a party", with moderate incumbents in both major political parties ousted in primaries. They say that "the increasingly polarized political environment by 2011 reinforced the ability of the most extreme advocates of both parties to place significant roadblocks to centrist candidates in general elections and later when serving in office".^:597

The Reform Elections Now group released a white paper in March 2020, authored by Peter J. Siris, used Burden, Jones and Kang (2014)'s research to attribute this to how "[w]ith few competitive districts, nominations are run by parties who want to control uncertainties, ward off competitors, and select ideologically appealing nominees". They say that with sore loser laws, "candidates tend to shift towards the base of their parties, because they know if they lose the primary, their political career can be over", and that should those candidates be elected, "they will vote in ways that appease the bases of their parties, because they are scared of being 'primaried' by a candidate that appeals more strongly to that base".^:1

The researchers summarise that the laws "enhance the party bases' ability to produce greater legislative polarization in at least two ways":

1. That "by removing any subsequent reentry options for candidates, they place greater pressure on primary candidates to cater to the polarized preferences of the party bases", meaning "[i]deologically extreme candidates are advantaged, while moderate candidates less aligned with their respective party base's preferences must become more ideologically extreme to remain competitive, or they may simply be discouraged from running at all"
2. That "the mere threat of an electoral challenge is often sufficient motivation for the frontrunner to adopt more extreme positions as a preemptive measure". They quote McCarty, Poole, and Rosenthal (2009), who commented that "[p]oliticians who do not pander [to their base] may face primary challenges by ideologically purer candidates".^:302

As a result, candidates who have lost primaries may choose to launch a write-in campaign instead; these are not prohibited by sore loser laws, "since it is up to voters to write in the name of their preferred candidate". There are obstacles that need taking into account, however; "significant coordination problems inherent to running write-in campaigns", such as how "[v]oters need to be educated about the write-in process and need to be willing to spend the extra time in the voting booth to write in the name of their preferred candidate" and "write-in candidates, even those who are well known, may be unable to raise funds or hire sufficient staff to support their efforts.

Pertinent examples

There are multiple examples here. Some of the most prominent are those that occurred during the peak of the Tea Party movement in the early 2010s, when multiple establishment Republicans were defeated in primaries by more conservative candidates, and fought back by refusing to support the victorious candidate or launching third-party or independent runs (in ways that did not breach sore loser laws).

Alexander Burns of POLITICO wrote that "[t]aken together, all of those episodes only heighten activists' distrust of veteran lawmakers – and anything that smacks of political entitlement". Matt Kibbe, the president of the Tea-Party aligned Freedom Works group, said "tea party activists get involved in Republican primaries, play by the rules, and then the Republican establishment candidate proves that he was never a loyal Republican in the first place and goes rogue. That's frustrating, but it's part of the process of disciplining the Republican establishment", and that "what you're seeing in the Republican primaries amounts to a hostile takeover of the Republican Party – and I mean that in the technical sense of replacing a failed management and tired ideas."

• Arizona: In 2010, incumbent Senator John McCain sought re-election to the Senate, and was opposed in the Republican primary by J. D. Hayworth, a more right-wing, Tea Party candidate, a situation that forced him to tack right on several issues; Arizona's sore loser laws would have meant that had McCain lost the primary, he would have been unable to run in the election as an independent or as a third-party candidate.^:302
• Alaska: The same year, incumbent Senator Lisa Murkowski, who has a record of bipartisanship, was successfully primaried by Joe Miller - "a lightly regarded challenger who had the energetic backing of Tea Party conservatives". Her loss was seen as an upset, and attributed to her having "overlooked the strength of voter discontent represented by the Tea Party movement and did not take the challenge seriously",^:15 "and as a result did not get deeply involved in the primary race".^:597 Murkowski did not support Miller's candidacy after his win - labelled at the time "as the latest outrage in an ongoing struggle between establishment Republicans and the GOP's activist base"; it was considered that "[f]or conservative activists, portrayed throughout the cycle as a disruptive force within the GOP, the episode revives a familiar complaint: That it's actually establishment pols who have consistently undermined efforts to unify the GOP after primary voters have spoken." While Alaska's sore loser laws prevented her from running as an independent or third-party candidate, they did not prevent her from launching a write-in campaign that proved successful.^{:15, 597} Murkowski's campaign infrastructure "remained mostly in place after the primary", which along with grassroots support "helped the campaign target its message". Republican furore at Murkowski's actions, particularly from its Tea Party wing, was contrasted by Ken Rudin of NPR, who wrote that Christine O'Donnell did the same thing in the 2006 election for Senator for Delaware.
• Florida: Incumbent Governor Charlie Crist ran for the Republican nomination in that year's election for the state's Senator, but dropped out days before the filing deadline as he believed he would not succeed in obtaining the nomination and his chances of becoming Senator would be greater in three-party contest. He "renounced his party affiliation and declared himself an independent", and during the campaign accused the Republican candidate Rubio and the Democratic candidate Meek of both representing the extremes of their party, but said if he won the election he would caucus with the Democrats in the Senate. He came second in the November election. Reportedly, Democratic voters were conflicted on whether to vote for him or the official party nominee, splitting opposition to the Republican candidate.
  • In response to this, a report by the Florida Senate Ethics and Election Committee called for a 'sore-loser statute' that would "prohibit party-affiliated candidates who lose a primary from re-entering the race as in independent", and also "recommended making it tougher for political candidates to switch or leave parties in mid-campaign". The committee suggested "candidates be registered with a party - or to be a declared independent - one year before they must qualify for the office they seek", and "[s]ince the qualification deadline for federal offices typically is about six months before the November general election, candidates would be locked into party or "non-party" status about 18 months before the final election, "effectively preventing last-minute party-switching for personal political gain."" At the time, Florida law said that "candidates can change their party status up to six months before a general election"; Crist did not "officially change" his party affiliation from Republican to 'no party' until twelve days after he was able to qualify to run as an independent, and the switch allowed Crist to "bypass the August primary and be placed directly on the [November] general election ballot, angering many of his former Republican supporters and contributors". The committee report was nonbinding.
• Delaware: In the Republican primary for the 2010 election for Delaware Senator, moderate candidate Mike Castle was defeated by Tea Party-aligned candidate Christine O'Donnell, in a "low-turnout primary". Reform Elections Now's Peter J. Siris argued that if sore loser laws not been in place, Castle would have been able to run as a third-party candidate or an independent, and that polls demonstrated Castle's greater strength than the Democratic candidate, Chris Coons, both if he had been nominated as a Republican and as an independent in a three-way race; Coons eventually won the election.^:1-2 O'Donnell's defeat was attributed to "questions about her educational credentials, her ignorance of the Constitution and her [reputed] fondness for witchcraft." After O'Donnell's poor performance, there was considerable discussion within Republican circles regarding whether the party had lost a sure Senate seat by nominating her instead of Castle. Party pragmatists said that this had happened, and pointed to other races in Nevada and Colorado where Tea Party-favored candidates had lost races against Democratic rivals. Party purists dismissed this concern, and said that running candidates who supported fundamentally conservative values was always worthwhile. For her own part, O'Donnell criticized divisions within the Delaware Republican Party following her primary win and said the consequent lack of support had led to her defeat.
• Virginia: In 2014, then-House Majority Leader Eric Cantor was defeated in the Republican primary for Virginia's 7th congressional district, where he was the incumbent, by Dave Brat, who was Tea Party-aligned. National media attributed the loss to being seen as insufficiently conservative, having worked with the Obama administration and congressional Democrats on immigration policy (a record of having done this therefore became a significant concern to other Republicans who had yet to face a primacy at the time); local media, however, supposedly painted a more nuanced picture.
  • Cantor running as an independent was suggested, with a reasonable chance of winning due to "Republicans enjoy[ing] a sizable numerical advantage" over Democrats in the district at the time - an independent candidacy forcing Republican voters "to make a choice about which faction of the party they preferred—the right-wing faction or the establishment faction", and benefitting from a higher, more moderate turnout in the general election compared to the primary - but Virginia's sore loser law would have ruled this out. A possible write-in campaign would not have been precluded, but, despite immediate speculation, Cantor "concluded quickly that he would not mount" one.
  • Cantor's primary loss was also of great significance elsewhere: resigning early as House Majority Leader, his defeat fomented a "struggle for power between the conservative and establishment wings of the Republican Party" on Capitol Hill. It is also possible it influenced the outcome of remaining Republican primaries, giving hope for Tea Party activists and enthusiasts, after "several high-profile defeats in intraparty contests [that] spring", that they could "put the establishment on notice that the long-running struggle inside the party" will continue into future elections. There were also reports the loss would spur on local Tea Party groups "to confront the national tea party organizations"; at the time, disputes were emerging between grassroots and national Tea Party organisations over the latter's endorsements conflicting with the preferences of the former.
  • It was also deemed to have potentially "galvanized establishment Republicans and perhaps some Democrats in places like Mississippi", where, in the Republican Senate primary the week before, incumbent Republican Senator Cochran did not achieve enough votes to avoid a run-off with a Tea Party-backed candidate. Between the primary and the runoff, Cochran "made deliberate overtures toward minority and union voters, who typically cast ballots in the Democratic primary", because "under Mississippi law, any voter that did not vote in the Democratic primary ... was eligible to vote in the Republican primary runoff". CBS News noted that both candidates were "conservatives by just about any objective measure, but the race served as a proxy fight between tea party-aligned, anti-establishment conservatives and traditional conservatives."

There are also notable examples within the Democrats wherein moderate incumbents have lost primaries to more liberal/progressive candidates:

• The race for Senator for Connecticut in 2006 — sore loser laws are not in place in Connecticut ("but [the state] makes it difficult for a primary loser to switch to an independent or third-party candidacy" and "[a] candidate wishing to do so must file sufficient petition signatures and meet other ballot qualifications by the close of business on the day after the primary"^:596) and it was commented that where such laws are not in effect, they fail to contribute to the "partisan polarization" resulting from "preventing moderate candidates rejected by the party base from getting elected as sore losers", as "primary candidates who displayed insufficient ideological extremeness can still slip past the party veto and get elected subsequently as an independent or minor party nominee", despite "the disadvantage they face during the primary election."^:302
  • Three-term Democratic Senator Joe Lieberman was defeated in the party's primary by a relatively unknown,^:596 "more liberal insurgent", Ned Lamont. He succeeded by campaigning on Lieberman's moderate policy positions and support for the Iraq war,^:303 which had angered liberal activists within the Democratic Party. Believing his chances of victory in the primary were fading, Lieberman announced he would "collect signatures in advance of the primary and would run as an independent if he were denied the Democratic nomination"^:15 - because "the one-day separation between the primary and the independent candidate filing deadline"^:596 meant "he would have no time to launch a petition drive for an independent candidacy if he waited for the primary result" and so "no time to launch a petition drive for an independent candidacy". It was believed this decision "further alienated Democratic loyalists" and "contributed to his narrow primary defeat",^:15 yet it "enabled him to comfortably meet the filing requirements to run on a third-party line".^:596
  • Lieberman submitted enough signatures the day after his primary defeat to appear on the general election ballot, as the Connecticut for Lieberman party nominee.^:303 Connecticut's lack of sore loser laws meant Lieberman could run as a third-party candidate, believing his "moderate credentials and name recognition would win a three-way race".^:303 Despite the perceived risk of this causing a 'spoiler effect' by which Lamont and Lieberman split the Democratic vote, allowing the Republican candidate to win with a greater plurality of the vote, the unpopularity of the Republican candidate, Alan Schlesinger, meant much Republican support and endorsements went to Lieberman.
  • Lieberman won, "[t]o the dismay of progressive Democrats", with "the centrist candidate [...] defeating both the more liberal Lamont and the more conservative Republican challenger",^:303 but, as he promised, continued to caucus with the Democrats in the Senate, allowing them to take control of the body following the 2006 elections.^:597 Burden, Jones and Kang (2014) posited that had a sore loser law existed in the state "to block Lieberman's minor party candidacy", it would have contributed to "increased polarization by preventing the election of one of the most conservative Democrats and likely replaced him with a more liberal one."^:303
  • The aftermath was that the then-Secretary of State, Democrat Susan Bysiewicz, proposed to the state's legislature a new law that would outlaw anyone who had lost a primary from then becoming an independent candidate.
• Growing influence of progressivism within the Democratic Party: particularly in New York, a state in which sore loser laws do not exist, but where the threat of moderate candidates being ousted by more left-wing candidates has been demonstrable and led to third-party runs by moderates (see #Elections in New York and 'fusion')

Outcome of not seeking major party nomination

Burden, Jones and Kang (2014) comment that moderate candidates do "have the option of exiting their party from the outset and forgoing the primary process altogether", but that is "materially different from running as a sore loser only after losing the primary election", concluding that the "value of a major party nomination and the ballot line that comes with it is so great that only in the rarest cases would a serious candidate forgo the chance from the outset". They attribute this to the increased difficulty and cost for a candidate "running outside the major parties" to "secur[e] a position on the general election ballot", due to the "guaranteed access to the November ballots, and thus credibility" associated with being a candidate for a major party, combined with a "brand label that brings with it a loyal group of party supporters that vote reflexively for the party nominee."^:304

However, they argue there are disadvantages to not engaging with the party machine and mechanisms; "running as an independent from the outset, without trying to win the party nomination, conveys a different political meaning than abandoning the party later as a sore loser after trying to win the nomination", as the "sore loser candidate" has demonstrated the effort they have made, at first, to "work within the party and change its direction for the better". A defeat in a primary "signals to the candidate, as well as like-minded supporters, that they should feel justified in pursuing outside options and challenge the party in the general election", as opposed to a candidate that "abandons the party from the outset and runs as an independent candidate", who could be "seen as disloyal for not first trying to change the party from within", and as a result the candidate is "less likely to draw away the same level of support in the end from party activists, campaign financiers, and voters than if the candidate first runs in the party primary before departing."^:304

Other criticism and examples

In an op-ed by Mickey Edwards, former Oklahoma congressman and vice-president of Aspen Institute, in The New York Times in January 2014, he cited Burden, Jones and Kang, who "found that in states with sore-loser laws, congressional candidates were more ideologically distant from one another — that is, more polarized — than in states without them. That may well be a sufficient reason for reformers to seek the repeal of sore-loser laws," as they "deprive voters of a full array of choices", and accuses them of being "arguably even more insidious than partisan redistricting, which affects House races but not Senate ones". He said that this betrays American democracy, and part of its "restoration" is by "giving voters the fullest range of choices when it comes to selecting their leaders", as under sore-loser laws, "the real loser is the voters". Edwards outlined that part of expanding the choice of voters would include open primaries, in which candidates from all parties stand and would likely lead to an increased chance of moderate candidates winning elections. In his white paper, Siris concluded that "[m]ost people focusing on reforming elections look at open primaries, ranked choice voting, ending gerrymandering, and increasing voter access", but "tend to ignore" sore loser laws, and also concurred with the "[e]vidence suggests that the [s]ore [l]oser laws have a critical impact on increasing the polarization of American politics."^:3

As well as citing the example of the 2010 Senate election in Delaware, both Siris and Edwards argue, though without concrete evidence, that sore loser laws interfered in the Republican Party primaries for the following races:

• Utah, 2010: The Republican convention to choose the party's candidate in the 2010 United States Senate election in Utah — that being able to run in a primary or as an independent would have benefitted the incumbent Senator Robert Bennett in 2010, who was eliminated in the second round of voting of the convention.^:2 Edwards spoke of how "[t]here were a mere 3,500 people at this convention", and "Bennett would almost certainly have won a vote in which all Utah voters had been able to participate: the state's sore-loser law meant that 320 party activists effectively made a decision on behalf of the three million people of Utah."
• Texas, 2012: The Republican primary for the 2012 United States Senate election in Texas — that the more moderate candidate, then-lieutenant governor David Dewhurst, could have won had he been able to run as a third-party or independent candidate against the Democratic candidate and the Republican candidate Ted Cruz. In the first round of voting, Dewhurst came out substantially ahead of the more conservative Cruz, but Cruz won marginally in the primary runoff. Edwards argued Texas being "virtually a one-party state" contributed to this, and that "extremists" were less likely to win in the general election in states not dominated by one party "as Texas and Utah are", citing Delaware in 2010. He also spoke of the comparison, and large gap, between turnout for the primary and the size of state's count of eligible voters in the general election.

There are also cases of the Republicans trying to replace a candidate the party had officially confirmed through their winning a primary, and encountering sore loser laws in the process:

• Alabama, 2017: After Republicans nominated Roy Moore for the special election for Alabama Senator, historical allegations of sexual assault of a minor were reported; Moore refused to renounce the nomination, and Republicans reportedly considered a write-in campaign to try and get a different Republican elected. Names suggested were Luther Strange, the 'establishment pick' whom Moore had defeated in a primary run-off - and as Alabama's sore loser laws do not apply to write-ins, "a candidate who lost a primary [...] could still run as a write-in, though not on an official party ticket" - and Jeff Sessions, who had held the seat prior to his becoming Attorney General, which led to the special election. Alabama's Secretary of State sent out guidance on how to cast a write-in vote "due to a large number of requests"; comparisons were made with Murkowski's successful effort in 2010, but a similar effort in Alabama was deemed "probably futile", as "[a]t best, write-in candidates would likely split the Republican vote." Edward B. Foley, director of election law at the Moritz College of Law, commented "a write-in becomes much more plausible when new revelations or "late-breaking information" does damage to the "conventional" candidate — in this case, the person on the top of the party ticket", as happened with the official Republican candidate Joe Miller in the 2010 Alaska race.
  • It was reported "reluctance to run" was an obstacle in getting a write-in effort off the ground; the only Republican write-in candidate, Lee Busby, was said to lack "the campaign infrastructure and broader name recognition". Candice Nelson, American University's government department chair, said "any write-in campaign needs to figure out exactly which voters are up for grabs"; consequently, "[i]n this case, Republicans likely to vote in a special election who have abandoned Moore or can be persuaded to do so. That has to be done quickly and accurately; otherwise, it's wasted effort." Democrat Doug Jones narrowly won the election, such a win in a deeply conservative state attributed to the allegations against Moore, with Republicans not launching any major write-in campaign against Moore.

• Ohio's 18th congressional district, 2006: Incumbent Republican representative Bob Ney had extensively denied any wrongdoing in an "influence peddling" scandal, but in August 2006 suddenly renounced the nomination to stand in the general election as the Republican candidate he won in May, quit the race and announced he would resign his seat. Ney and others recommended the Ohio Republican Party-backed State Senator Joy Padgett replace him on the ballot. Democrats "protested that Padgett's nomination would violate the state's sore loser law, as she had run for and lost the Republican nomination for lieutenant governor in the May primary", but "state officials ruled that the bid for the other office was not relevant to the congressional race". Nevertheless, the "damage done to Republican interests in the district by Ney, who pleaded guilty to corruption charges in the midst of the campaign, and by Padgett's image as an ally of Ney enabled Democrat Zack Space to win a landslide victory" against Padgett in November.^:597

Congressional reports

A congressional report, published in mid-2006, judged that "reasonable 'ballot access' procedures" were "found generally to be within the state's purview to 'regulate election procedures' to serve the state interest of "protecting the integrity and regularity of the election process". Additionally, "when found to be within the state's administrative authority over election procedures, were not deemed to be impermissible "additional qualifications" for federal office, even though they may create certain procedural hurdles or requirements which a candidate must overcome [in order] to be placed on the ballot."^:8

The report also quoted the Supreme Court's "distinction between permissible, procedural “ballot access” regulations by the states, such as the “sore loser” laws and the requirements for independents or new party candidates to demonstrate some level of support (such as a certain number of signatures on a petition) to appear on a ballot, as opposed to prohibited “additional qualification” requirements added by the states was explained by the Supreme Court in U.S. Term Limits, Inc. v. Thornton (1995):^:8

The provisions at issue in Storer and our other Elections Clause cases were thus constitutional because they regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position. They served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress. And they did not involve measures that exclude candidates from the ballot without reference to the candidate's support in the electoral process.

— ^:8

History of litigation and arguments over constitutionality

Alongside the challenges to sore loser laws on the grounds that they contribute to "ever more polarised political parties", they have been on the basis of disputed constitutionality.^:597 Opponents have argued that sore loser laws constitute a violation of the Constitution, and have launched court challenges on those grounds. Tarr and Benenson wrote that "[a]lthough sore loser laws have been challenged as an unconstitutional denial of ballot access, the U.S. Supreme Court has upheld them as a fair and reasonable way to limit the length of election battles while still giving the voters a sufficient choice of candidates".^:597

Early litigation

The 2006 congressional report explained that litigation in federal courts regarding sore loser laws mostly returned results that were in their favour, calling them "a species of 'ballot access' provisions that help states maintain the integrity of the nominating and election process", by "preventing 'interparty raiding,' carrying 'intraparty feuds' into the general election, 'unrestrained factionalism,' ballot clutter, and voter confusion.^:10-11

It also provided notable examples of 20th century legislation that dealt with sore loser forms in their nascence and infancy:

• 1902: In Minnesota, a statutory scheme that prevented a candidate who was unsuccessful in their party's primary for a congressional office from being able to run as an independent in the race, and print their name on the ballot as such, was upheld. It had faced "a challenge that it created an additional qualification to office, as long as the candidate could run in a write-in campaign."^:10
• 1934: The Nebraska Supreme Court ruled that a candidate who was successful in their party's primary for the governorship election candidacy "could not by petition have his name printed on the general election ballot even for another office, that of United States Senator, since the statutory scheme preventing those defeated at the primary from being on the ballot in the general election did not create an additional qualification for congressional office."^:10
• 1942: The North Dakota Supreme Court ruled, in "the only case found voiding a 'sore loser' law's application to a congressional candidate", that "the state statute was inapplicable to congressional candidates on the basis that it impermissibly created an additional qualification for congressional office."^:10

Storer v. Brown (1974)

In 1974, Tom Storer challenged California's sore loser law, which "banned ballot access in the general election for independent candidates who either voted in the preceding primary election or were registered with a political party within the year preceding the primary election." Litigation initially began when two congressional candidates - namely, Storer and Laurence H. Frommhagen - "challenged the law's disaffiliation requirement". Both had been unable to appear on the ballot as independents and run as a congressional candidate that way; a "three-judge federal district court panel ruled that California's election code served a “sufficiently important state interest.”

In Storer v. Brown, 415 U.S. 724 (1974), the Supreme Court upheld the statute/"state election regulation", by a 6–3 vote. Justice Byron R. White, writing for the six-member majority that upheld the disaffiliation provision as applied to Storer and Frommhagen", said that while states could not "impose unnecessary and severely restrictive barriers on independents", they were able to "protect the integrity of the ballot" by necessitating independent candidates to "demonstrate substantial support before being placed on the ballot". White also wrote that the "disaffiliation requirement also protected the integrity of the ballot by ensuring that primary losers were not able to use the general election to continue a political fight they had already lost." Writing for the three members in dissent, Justice William Brennan Jr., argued that the statute "placed enormous burdens on independent candidates and their supporters, because the primary was just five months before the general election, which would require any major-party candidate seeking to run as an independent to make that choice a full seventeen months before the general election" - something he described as an "impossible burden", because "one would not know who the major parties' nominees would be or what issues would be on the agenda that far out."

Prior to 1959, California allowed candidates to cross-file, i.e. run, in the primaries of parties other than their own, and this was seen as "as a dilution of the parties' distinctive identities".^:597 The repeal of such cross-filing, the Court argued, made the primary "not merely a warm-up for the general election, but an integral part of the entire election process."^:598

The Court upheld California's sore loser law "as being harmony with" the aim of the state for political parties to use primaries to "settle their internal differences and limit the ballot to primary winners and qualified independents", and the Court said that "besides giving the people "understandable choices", this system should give the general election winner "sufficient support to govern effectively.""^:597 As well, the Court found "California's statute furthered the state's compelling interest in political stability and did not violate the First Amendment freedom of candidates to associate with the party of their choosing". Simultaneously, the Court upheld a related "disaffiliation" law that made candidates in the state unable to run as independents if they "had been registered with a party less than a year before the primary". Both actions were said to have "strengthened the parties' role in winnowing out candidates" an and avoiding the dangers of what the Court called 'unrestrained factionalism'".^:597

Kyle L. Kreider wrote that "Storer v. Brown is one of many ballot access cases from the Burger and Rehnquist Courts that upheld a state's regulatory regime as applied to independents and minor parties. The two major political parties, with Supreme Court approval, have made it increasingly difficult for independents to obtain ballot access and, if successful, to stay on the ballot for future elections."

Williams v. Tucker (1974)

A three-judge federal district court "upheld the provisions of the Pennsylvania election code which worked to require a candidate to choose between a primary nomination or an independent petition route to the general election, and which barred both state and federal candidates who lost in the primary election from running again in the general election as independent candidates." In serving the judgement, the court "relied significantly on the Supreme Court decision and reasoning in Storer v. Brown, in justifying certain state regulations on the nomination, ballot, and general election procedures", and found that the laws in question, "which have the combined effect of preventing a candidate defeated in the primary from obtaining a position on the general election ballot as the candidate of a political body, do not for this reason violate the first amendment or the equal protection clause of the fourteenth amendment."^:10-11

Anderson v. Celebrezze (1983)

Further information: Anderson v. Celebrezze

A debate among Republican primary candidates in March 1980. Anderson, who withdrew from the primaries six weeks after this debate, is sat at the far right of the image.

In 1980, Illinois representative John Anderson was seeing the Republican Party presidential nomination. Failing to breakthrough in early primaries to Ronald Reagan, who would eventually become the party's nominee, led to Anderson effectively dropping out of the race.^:598 He then announced in April he would run for the presidency as an independent candidate instead; in order to do so, and "appear on the ballot as an independent", he "had to file petitions of candidacy in all 50 states". Owing to a "variety of state law requirements", such as early filing deadlines in some states,^:598 or having to achieve a "minimum threshold of signatures from supporters in order to appear on the ballot" in others, "[i]n some circumstances, he encountered resistance."

For instance, in May 1980, Anderson brought in a suit in Ohio - which had rules on early filing deadlines that had "threatened to keep Anderson off the November ballot".^:598 Anderson supporters "sought to file nominating petitions to get him on the ballot" in the state, where "election officials refused, pointing to a state law requiring independent candidates for president to file their petitions in March in order to appear on the ballot in November." Anderson, in his suit, was "challenging Ohio's early deadline as an unconstitutional restriction on independent candidates".^:598 Anderson "successfully challenged the early filing deadline in federal district court, contending that it violated his and his supporters' First Amendment freedom of association rights". In the end, Anderson was able to appear on the ballot in every state as he had demonstrated attempts to "remove his name from the primary ballot in some states before the primary was held."^:598

In 1982, a federal appeals court reversed the decision in Ohio made by the district court there, "contending that the law was not unreasonable", but the Supreme Court - in Anderson et al. v. Celebrezze, the state having appealed - later "reversed the appeals court, striking down the Ohio law and ruling in favor of Anderson.", having "ruled that early filing deadlines for independents put them at a disadvantage and deny a choice to voters not satisfied with the candidates put forth by existing political parties." This ruling "seemed to contradict the Court's earlier decision in Storer, but "the Court said Ohio's early deadline approach was more burdensome to independents than California's sore loser approach."^:598

In Anderson v. Celebrezze, 460 U.S. 780 (1983), "the Supreme Court struck down on First Amendment grounds a state law that imposed early filing requirements for an independent presidential candidate who wished to appear on the general election ballot". The Supreme Court said that the "early filing deadline violated [the] First Amendment".

• "Writing for the Court, Justice John Paul Stevens asserted that in order to determine the constitutionality of the Ohio law, one had to weigh the character and magnitude of the injury to Anderson and his supporters’ First and Fourteenth Amendments rights against the interests asserted by the state in justifying the burden imposed by its law."
• "In this case, the First Amendment right of freedom of association of Anderson and his supporters had to be weighed against the state’s purported interest in early filing, which was to give its voters a sufficient period of time to consider the candidates before voting. Because the burdens of the state’s interest were so severe, and because the law also had an impact on the national presidential election process, the Court found the early filing deadline unconstitutional."

David Shultz of The First Amendment Encyclopedia wrote that the "[e]arly filing dates and signature requirements created hurdle[s] to independent candidate[s]." Supposedly, a result of the Anderson decision was that "the Court created a test making it easier for candidates to secure ballot access when running for office," and "led to the repeal of many state laws hindering ballot access for third parties and third-party candidates or to their being declared unconstitutional". The "ruling made it easier for subsequent third-party or independent candidates, such as Ross Perot in 1992 and 1996, to appear on the presidential ballot."

2018 litigation tabled by Constitution Party state affiliates

• North Carolina: In August 2018, a federal judge sided with the North Carolina affiliate of the Constitution Party in agreeing that the retroactive application of the state's sore loser law was unconstitutional, as applied to the newly formed party.

• West Virginia: In the 2018 United States Senate election in West Virginia, Don Blankenship did not succeed in the Republican primary for the party's candidate, and following the primary loss changed his registration to the Constitution Party and filed to run in the general election as the candidate for the party. The sore loser law meant that the West Virginia Secretary of State, Mac Warner, denied his application. In State ex rel. Blankenship v. Warner, both Blankenship and the Constitution Party petitioned West Virginia's Supreme Court of Appeals for a writ of mandamus to force the Secretary of State to add Blankenship to the general election ballot; the petition involved "both a statutory challenge to the Secretary of State's denial of his application and a constitutional challenge to the sore loser law". The court denied the writ on the same day as the case was argued, with the Supreme Court of Appeals "unanimously agree[ing] with the Secretary of State and the West Virginia Republican Party, which had intervened in the case, on every issue that it decided." The "court held that the plain language of West Virginia’s statute disallowed Mr. Blankenship's sore loser campaign", and "that the sore loser statute was constitutional under both the U.S. and West Virginia constitutions".

2019 mayoral election of Lorain, Ohio

City hall of Lorain, Ohio in 2022.

Ohio's sore loser statute "bars a candidate who has sought one seat on the ballot from being appointed to another seat when a vacancy occurs, whether or not they were successful in their initial race", and "prohibits individuals who have run on the primary in other positions from being appointed to fill the vacancy".

In 2019, controversy erupted over the primary and candidate selection for the mayoral election of the town of Lorain, Ohio. Mayor Chase Ritenauer resigned days after winning an uncontested primary for what would have been a third term, and five of the six Democratic candidates who sought to be appointed (by the city's Democratic Central Committee) to the November general election ballot in Riteanuer's place were prohibited by the sore loser laws, as they had run for different offices in the May primaries,, with the sixth later stepping down from contention after disapproving of the "circus" that had been created around the issue. The statute was interpreted by Assistant Lorain County Prosecutor Gerald Innes, and later upheld by an opinion by the Secretary of State in mid-July 2019. Attorney Jack Bradley, who was not among the initial six candidates, was the only remaining candidate left to be appointed to the ballot in Ritenauer's vacancy by a vote in June 9, 2019 among Lorain's Democratic Central Committee. Interim Mayor Joe Koziura was appointed by the same meeting of the committee to complete Ritenauer's unexpired term through December 31, 2019, but was deemed ineligible to contest the November mayoral election as he did not succeed in the May primary.

Legal action

Attorney Gerald Phillips engaged in various, extensive legal action in order to counter the disqualifications. He opined that the law had been interpreted incorrectly, and in late July 2019, he filed a protest against the county's Board of Elections, arguing Jack Bradley's selection had been done through "'an abuse of discretion, unlawful, illegal and invalid acts and activities' via a violation of election laws, fraud and conflicts of interest". Through this protest, he also made an allegation that Anthony Giardini, chairman of the county's Democratic Party, had committed fraud against the Central Committee, and conflicts of interest existed among Giardini, Adams and Gerald Innes, the Assistant Lorain County Prosecutor and counsel for the Board of Elections "whose opinion on the statute differed from Phillips'". Phillips claimed that the candidates who were successful in other primary elections were "illegally excluded from consideration, rendering the entire nomination process null and void", and made a request for Bradley to be "barred from appearing on the November ballot."

Prior to Bradley's selection, he produced an opinion in which he proposed that the disqualified candidates could seek the appointment "under a different interpretation of the Ohio Revised Code", via a memorandum he issued that argued the 'sore loser statute' "only covers unsuccessful partisan primary candidates and did not cover partisan members who were not running as independent candidates"; consequently, in "his opinion, the statute does not apply to successful primary candidates and applying it to them would be unconstitutional". However, this would mean said candidates would have to withdraw from their candidacies for other offices/positions they had won the right in primaries to contest on behalf of the Democratic party in the general election in order to seek being appointed mayor, as law prohibits a person from running for two political offices at the same time, and this posed a risk because "[i]f that person did not secure the appointment as mayor, they would lose their original seat as well," under the same section of the Ohio Revised Code Phillips is challenging here. Reactions among the candidates were mixed, with some expressing their interests regardless while others ruling this out. He "later issued a supplemental opinion clarifying successful primary candidates only had to withdraw ahead of the filing deadline, not before the appointment meeting".

However, at the time it was noted that "if Phillips' opinion moved forward into litigation, a successful lawsuit could make all five who were deemed ineligible ahead of June 9 vote eligible for the appointment", but "Giardini said if Phillips chose to file a suit, he was doubtful it could be resolved before July 15 — the deadline for the committee to appoint someone to fill Ritenauer's vacancy on the ballot."

Resolving legislation tabled

One of the disqualified candidates, Democratic member of the Lorain Council Mary Springowski, "contacted [Nathan] Manning and other representatives about how the law was applied". In October 2019, Republican state Senator Nathan Manning, who represents Lorain, introduced legislation to counter the debacle, which aimed to "remove language prohibiting those who appeared on a primary ballot from being appointed to fill a vacancy on the ballot". Manning had aimed to "have the fix in place by the next primary election." Manning said that he had contacted the original sponsor of the bill, Bill Seitz, and "said that section of the original law was meant to bar someone from running for the same position as an independent, write-in or third-party candidate"; "[a]s his introduced legislation stands, Manning said in the example of Ritenauer's departure, if the former mayor had had a challenger in the primary, he didn't see why the primary opponent couldn't be appointed."

In December 2019, former state representative Dan Ramos and Springowski submitted testimony in support of Manning's bill, which, if it became law, would allow "primary candidates to be able to be appointed to a vacant slot on the ballot", but "still would bar losing candidates from running for the same seat as an independent or write-in for the same seat". At the time, the bill was moving to its third hearing, but it was "unlikely it would be in place by the March primary, as it takes 90 days from when a law is signed by the governor to go into effect unless passed with an emergency clause". The bill was first introduced in this assembly with six hearings and no opponents, but was not voted out of committee before the end of the session in December 2020. In February 2021, during the next assembly, Nathan Manning re-introduced the bill, and in January 2022, the Ohio Senate Committee on Local Government and Elections voted unanimously to "favourably report" the bill. It then passed a vote in the Ohio Senate unanimously in February 2022, although two Senators were absent. As of January 2023, it has yet to become law, having been referred to the Ohio House Government Oversight committee in March 2022, and a new assembly having began since.

Other recent cases

• 1996: In Patriot Party v. Allegheny City Dept. of Elections, 95 F.3d 253, 265 (3rd Cir. 1996); the court "found that the state prohibition on cross-party nominations by small parties was not a 'sore loser' law, and did not narrowly promote a sufficient interest to overcome constitutional objections of burdening First and Fourteenth Amendment rights of free association."^:10
• 1998: In January 1998, Ohio's supreme court ruled that the state's sore loser law applied to the nonpartisan elections to Ohio's Board of Education, and that a candidate who had "run in a partisan primary for the previous May were ineligible to run in November for a seat on the board". The Court upheld the sore loser law as preventing "intraparty conflicts, voter confusion, and candidacies prompted by short-range goals."^:598
• July 2006: A district court ruled that former Representative Tom DeLay, who had won the Republican primary nomination for the House of Representatives election in Texas's 22nd congressional district, "could not have his name substituted on the general election ballot by the Republican party even if Mr. DeLay had changed his legal residence and voluntarily withdrew from the race." This decision was later upheld in an appeal, by the United States Court of Appeals, and "a request to stay the opinion was denied by Justice Scalia" of the Supreme Court.^:3?
• August 2006: In an opposite result from that in Texas, in Ohio, Representative Robert Ney, who had won the Republican party nomination for his congressional seat that May, announced his withdrawal from the race on August 14, 2006. The Ohio Republican Party was allowed to hold a 'special primary' to nominate a different candidate for the November election. It was mentioned, however, that "some questions had surfaced as to whether one of the candidates would be eligible to run in the primary and general election because of Ohio's 'sore loser' law".^:3?

Specific cases and applicability at state level

Elections in New York and 'fusion'

Further information: Electoral fusion § United States, and Electoral fusion § New York

An example of 'fusion' in New York. The party make-up of Rochester City Council in 2021, with Democratic candidates in blue and candidates who have run on a joint Democratic-Working Families party line in blue and purple.

New York state is one of three states with no sore loser laws. The state's peculiarity has been, in part, attributed to the state's unique 'fusion' tickets, in which candidates can be nominated by and run on tickets with multiple parties, through 'cross-endorsement'. Under cross-endorsement, a "cross-endorsed candidate's name appears on the line of every party whose nomination the candidate received, and the candidate's vote tallies from the ballot lines are summed and totaled". Consequently, many of New York's third-parties run identical candidates as their ideologically-akin major party; Republican candidates are often cross-endorsed and appear on the ballot beside the Conservative Party, and Democratic candidates by the Working Families Party.

For example, research into the 1974 and 1978 cycles found that there were eight cases of candidates losing the nomination they had initially sought and running as a candidate for a different party:

• Five failed in the Democratic primary then ran as Liberal Party candidates in the general election.
• Two failed to acquire the Republican nomination then ran as Conservative Party candidates in the general election.
• One ran for both Conservative and Republican nominations and then ran as a Conservative in the general election.

Researchers Kang and Burden, citing Scarrow (1986), commented that "[t]hese particular combinations reflect the uniqueness of political parties in New York that have been shaped in party by the availability of usage of "fusion" tickets, in which multiple parties endorse the same candidate".^:459

A campaign button for the presidential campaign of independent candidate John Anderson in 1980, in which he was endorsed by, and thus also ran on the line of, the Liberal Party in New York. The Liberal Party had previously endorsed the then-incumbent President, Jimmy Carter, in 1976.

Often, however, a third party may decide not to cross-endorse the candidate nominated by a major party; for instance, the Conservative Party has precedent in fielding their own candidates should they believe the Republican candidate to be "too liberal or is at odds with nonnegotiable Conservative policy positions". As well as this, there have been occasions whereby candidates who have been nominated or endorsed by one party remain on the ballot, should they fail to achieve the nomination of either the Republican or Democratic parties and thus run on multiple party lines:

• In 1998, Republican Betsy McCaughey, then New York's lieutenant governor, switched her party affiliation to Democratic and entered the state's Democratic primary for governor after the then-Governor George Pataki dropped her from his ticket for that year's gubernatorial election. She did not obtain the Democratic nomination, and ran in the general election on the Liberal Party line - having received that party's endorsement prior to the primary - receiving 1.7% of the vote. Eli Lehrer of centre-right think-tank R Street said "this happened despite universal name recognition and a strong initial infusion of campaign cash from a wealthy husband".
• In 2018, 10-term Democratic congressman Joe Crowley for New York's 14th congressional district was defeated in the primary by Alexandria Ocasio-Cortez. Prior to the primary, he had been endorsed by the Working Families Party, with the intention of running on the Democratic-WFP line as in his previous elections, and consequently "secured" his place on the ballot with the party, his name remaining despite his Democratic primary loss and his attempts to have it removed. It was claimed that due to the election law, Crowley would have to "formally move out of the state, die, be convicted of a crime or agree to switch his nomination to another office – presumably down the ballot into a race he had no intention of contesting – in order to vacate his current place". Nevertheless, Ocasio-Cortez's camp accused Crowley of not doing enough to try and remove his name from the ballot, with each side criticising the other for supposedly making false accusations on the matter, with the WFP even endorsing Ocasio-Cortez after the primary election and trying to encourage Crowley to move his residence out-of-state. He was unsuccessful in the general election against her and the Republican candidate, Anthony Pappas, running on the Working Families Party-Women's Equality Party line, having decided not to actively campaign.
• A similar eventuality occurred in 2020, both in the same race - Michelle Caruso-Cabrera ran in the Democratic primary against Ocasio-Cortez and lost, and subsequently launched an unsuccessful run as the candidate for the Serve America Movement party in the general election. - but also in the race for the 57th district in New York's State Assembly elections. The incumbent, Walter T. Mosley, lost the Democratic primary to Phara Souffrant Forrest - a more progressive candidate backed by Ocasio-Cortez, and the Democratic Socialists of America group she is part of. The Working Families' Party endorsement of Mosley prior to the primary meant that he appeared on the general election ballot running on the WFP party line, which he lost by a substantial margin, but the unique situation meant that he recorded a higher share of the vote as the WFP's candidate versus the previous elections he had been endorsed by the party (in which he had run on a Democratic-WFP fusion ticket).

Voting mechanisms by which parties have more than one candidate

Several states have introduced voting systems that differ in some respects to the standardised first-past-the-post that, to an extent, eliminate the impact of sore loser laws. Both nonpartisan party primaries and alternate voting systems such as ranked-choice voting allow for parties to have multiple candidates in an election.

Nonpartisan primaries

In his 2014 op-ed, Mickey Edwards wrote that in California, Louisiana and Washington, "the primary election is open to candidates of any party, and the top two finishers advance to the general election, so parties cannot use election law to winnow the field. Advocates of open primaries argue that letting all voters choose among all the candidates, regardless of party, forces candidates to make a broader appeal, resulting in more moderate or centrist candidates."

In the 2024 United States Senate elections in California, in which there were three major Democratic candidates in the primaries, some pundits suggested a run-off between a Democrat and a Republican in November would be preferable to a run-off between two Democratic candidates - a possibility if at least two Democratic candidates both achieved higher vote counts than the top-scoring Republican (a scenario for which there is precedent). The reasoning was that, given California is widely perceived as a safe Democratic state and any Democrat who wins the jungle primary will inevitably win, a Democrat-Republican run-off would mean funds that would have been spent in a Democrat-Democrat run-off - to, for example; decide which wing of the party controlled the seat, or engender a race in a battle for influence with different major donors' preference of different candidates - could instead be used elsewhere in the nation to fund Democratic candidates in races that were closer, with the California Senate race effectively over.

Alternate voting systems

See also: Ranked-choice voting in the United States § Use at state and federal levels

Ranked-choice voting has been introduced in the states of Maine and Alaska. Similarly to nonpartisan party primaries, all candidates for an office stand in the same primary, with the top four candidates able to stand in the general election. Write-ins were permitted in the general election.

In the 2022 Senate election in Alaska, there were two major Republican candidates - the incumbent Senator Lisa Murkowski and Kelly Tshibaka; the other two candidates in the top four were Democrat Patricia Chesbro and Republican Buzz Kelley (who later withdrew, but not in enough time to be removed from the ballot). Tshibaka's candidacy had been endorsed by Donald Trump and the state's Republican Party, after Murkowski had been censured by the state party for her criticism of Trump. After transfer votes from the eliminated candidates, Murkowski won the election against second-placed Tshibaka. In the year's two House elections in the state, Democrat Mary Peltola was victorious in both, coming out top over two Republican candidates, even after the elimination of the third-placed Republican and the attribution of second-ranked vote choices by his voters.

In November 2024, Alaskans will vote on a ballot measure regarding whether to appeal RCV in the state.

Applicability to presidential candidates

Does a state's sore loser law apply to presidential candidates, per claims of different researchers?

State	Applies to presidential candidates?
	Kang & Burden	Winger
Alabama	Yes	No
Alaska	No	No
Arizona	Yes	No
Arkansas	Yes	No
California	No	No
Colorado	Yes	No
Connecticut	No S-L laws	No
Delaware	No	No
Florida	No	No
Georgia	Yes	No
Hawaii	Yes	No
Idaho	Yes	No
Illinois	Yes	No
Indiana	No	No
Iowa	No sore-loser laws
Kansas	Yes	No
Kentucky	Yes	No
Louisiana	Yes	No
Maine	No	No
Maryland	No	No
Massachusetts	Yes	No
Michigan	Yes	No
Minnesota	No	No
Mississippi	Yes	No
Missouri	Yes	No
Montana	Unclear	No
Nebraska	No	No
Nevada	No	No
New Hampshire	Yes	No
New Jersey	No	No
New Mexico	No	No
New York	No sore-loser laws
North Carolina	Yes	No
North Dakota	No	No
Ohio	Yes	No
Oklahoma	Yes	No
Oregon	Yes	No
Pennsylvania	Yes	No
Rhode Island	Unclear	No
South Carolina	Yes	No
South Dakota	Yes	Yes
Tennessee	Yes	No
Texas	Yes	Yes
Utah	No	No
Vermont	No	No
Virginia	No	No
Washington	No	No
West Virginia	Yes	No
Wisconsin	Yes	No
Wyoming	No	No

How sore-loser laws apply to presidential elections and candidates are less clear than as how they apply to congressional elections.

2016 presidential election

Donald Trump potentially endeavouring to become an independent candidate in the 2016 presidential election should he have not achieved the Republican Party nomination for presidential candidate was briefly contended over late 2015 and early 2016. Andrew Prokop of Vox said, in August 2015, that "Donald Trump's musings about running for president as a third-party or independent candidate have struck fear into the hearts of many Republicans, since he could well split the conservative vote and throw the election to the Democratic nominee", but that would be provided he was not "blocked from even appearing on the ballot" by sore loser laws, which "would block a Trump third-party bid if he runs in the primaries and loses". Prokop suggested "if Republicans pass similar measures in other swing states, the damage from a third-party or independent Trump candidacy could be contained" - "a sort of nuclear option that the party could take in a last-ditch effort to stop Trump from tanking their presidential chances."

Meanwhile, Michael Kang, who has repeatedly researched sore loser laws albeit more at a congressional level, commented that compared to congressional elections that the "laws for presidential elections are sometimes different" and "always in the less restrictive direction", and "[e]ven some states with outright prohibitions on sore loser candidates for Congress or other offices have an exemption for presidential candidates". He concluded that, "so, applied to Trump's case, there's a lot less in the way of an independent run for a president than there would be for Congress or most other offices."

However, the editor of Ballot Access News Richard Winger said the different wording by each state meant it was "not as cut and dry as 47 states disallowing the move". It was reported at the time that Michigan would ban Trump from a third-party run, but Winger contested that the law did not prevent an independent run. Mark Brown, Capital University Law School chair and an attorney who has argued legal cases challenging sore loser laws, commented it was the opposite in Ohio; Winger added that "the Ohio law specifically prohibits a sore-loser candidate from appearing as a minor candidate by petition, but minor party bids are typically nominations".

The effects of Trump entertaining an independent run were explored in numerous states:

Ohio

Andrew Prokop of Vox, in August 2015, emphasised Ohio in his article regarding how Trump's efforts could be precluded by sore loser laws, as a "hugely important swing state" wherein sore loser laws apply to presidential candidates.

Under the Ohio Revised Code and case law, presidential candidates must disaffiliate with political parties they may be a part of "in good faith" should they choose to run as an independent. A spokesman for Ohio Secretary of State Jon Husted, in response to comments by Trump that he may run as an independent or third-party candidate if he feels he is not being "treated fairly" by the Republican Party, said that because Trump filed paperwork with the Federal Election Commission "to pursue the Republican nomination" and "voluntarily participated" in the Ohio Republican presidential debate, he has "chosen a party for this election cycle" and declared himself "as a Republican in the state of Ohio", and so there would be "no way" for Trump to disaffiliate from the Republican Party 'in good faith' during this election cycle" and he had "already disqualified himself from running as a third-party or independent candidate there"; Vox's Prokop said this was a "stronger interpretation than several other states, where you have to actually appear on the ballot to lose your third-party option". Prokop suggested that in theory, "Trump could skip the Ohio primary or file for the ballot but withdraw" - after which he would "surely contest Husted's interpretation of the law in court" - but that the option of a write-in candidacy is a non-starter anyway, as Ohio law outlines that "write-in votes will only be counted if they're for people who have filed a declaration of intent to be a write-in candidate, which the sore loser law prevents Trump from doing."

A law professor at Ohio State University however said that Anderson v. Celebrezze (1983), which overturned a decision to block a Republican-turned-Independent presidential candidate from the ballot because "he missed a statutory deadline to register as an independent candidate", may undermine this assertion; despite admitting Husted would "keep Trump from running as an independent for a slightly different reason, 'but it seems to me it's the same principle'" as that case. The spokesman for Husted later responded to this, saying the case had "no bearing" on "whether Trump can leave the Republican Party and appear on the ballot as an independent. The spokesman pointed to two recent federal court rulings that prevented Ohio candidates from running as independents because they were affiliated with a political party. Joe Andrew, the chair of the Democratic National Committee from 1999 to 2001, said "Husted's decision may simply prove to Trump supporters that he is not being "treated fairly" — the standard Trump has set for deciding where he to run as an independent."

Tennessee

Questions were raised in 2016 regarding whether candidates who did not succeed in national primaries could run as a candidate for a different party or as an independent. Tennessee's sore-loser law, from 1975, reads that

"No candidate in a party primary election or party caucus may appear on the ballot in a general election as the nominee of a different political party or as an independent"

Tennessee Secretary of State Tre Hargett's spokesperson Adam Ghassemi, said that if "a candidate doesn't win the primary, they cannot appear on the ballot during the general election for another party or as an independent," and that sore loser laws apply to the presidential race. Donald Trump made multiple reversals over standing as an independent, initially refusing to rule it out, then signing a pledge stating he would support whoever became the Republican nominee, but in February 2016 reneged on that and "renewed his earlier threat", claiming the pledge was not binding as he felt the Republican Party had treated him unfairly at a debate in South Carolina "by packing the audience with people supporting his rivals".

However, despite the office of Hargett insisting the law applies to presidential elections, there have been previous incidences where it has not; in 1980, John Anderson when ran for president in Tennessee's Republican primary and achieved 4% of the vote, before appearing on the general election ballot as an independent and receiving 2% of the vote; and in 2012, Gary Johnson was on the state's general election ballot as a Libertarian presidential candidate after not winning the Republican nomination, and scored 1% of the vote. Hargett's office responded, explaining the latter was "an anomaly resulting from 'minor party litigation'", made by election officials "out of an abundance of caution", and that "[f]ailing to do so may have resulted in reproducing the ballot at taxpayers' expense while strict deadlines for the presidential election were imminent", while the circumstances that permitted Anderson to appear on the general election ballot as an independent were unknown (but it had previously been written in a book regarding the Anderson presidential campaign that "campaign lawyers convinced officials in Tennessee and Oregon that Anderson 'did not fall under the restriction because technically only his electors were running.'")

There was a consideration that had Trump launched an independent bid and the state of Tennessee "invoke[d] its sore loser law to deny him access to the ballot, he could sue". Richard Winger commented that sore loser laws would not apply to the presidential race as "people who cast ballots in the general election aren't voting for a candidate, they're choosing electors — members of the Electoral College — who have pledged to support that same candidate"; for instance, Tennessee's general election ballot in 2010 read, "Electors for Mitt Romney" and "Electors for Barack Obama." Winger said that this is "why it is so silly for any state to claim its sore loser law pertains to president," and that "[t]he candidates for presidential elector are the true candidates in November and in December", as they "have the power" and "get to choose our president", citing Article 2 of the US Constitution.

Despite disagreements on which states can invoke their sore loser law for presidential candidates and races, Kang and Burden (2014) concur with Winger here, saying that "[t]he primary is for allocating delegates rather than for selecting candidates directly."^:460 Kang and Burden commented this within their argument that the applicability of sore loser laws to presidential candidates can be ambiguous n the cases of candidates who have won their respective parties' nominations standing for the party nationwide, in states where they may not have won their primaries. One cited example is Oklahoma, where in 2016 Hillary Clinton and Donald Trump were their parties' candidates for the presidential election, but did not win their respective party's primaries in that state.^:460

Possible responses by Republicans

It was suggested that had Trump continued to "dangle the possibility" of running as an independent, Republican officials and governors in several swing states (namely, Florida, Wisconsin, Nevada and Wisconsin) could pass sore loser laws specifically and explicitly applying to presidential elections and candidacies. While this would draw criticism for being perceived as "blatant[ly] anti-Trump", it was argued "party elites" would still judge it to be "worth doing" because of the potential damage to the chances of a non-Trump Republican presidential run. However, it was said that such a move by the Republican Party could lead to "many Democrats to suddenly wax loquacious about how undemocratic sore loser laws are for their own partisan reasons", with Democrats (at the time holding the governorships of Virginia, Colorado, New Hampshire, and Pennsylvania) possessing "little incentive" to perform a favour for whomever the Republican presidential candidate would be. An argument was made that Republicans could "accurately make the case that in the long run", both of the parties would be helped by sore-loser laws, but "the potential short-term benefits of a Trump independent candidacy could be so great for Democrats that it would be a tough sell."

In the end, an independent Trump candidacy did not materialise, winning the 2016 Republican Party primaries, and defeating the Democratic ticket headed by Hillary Clinton in the November general election. He would serve one term before being defeated in 2020 by a Democratic ticket headed by former Senator and Vice President Joe Biden.

2024 presidential election and hypothetical independent Trump candidacy

Such fears for Republicans had been raised since the 2020 presidential election that Trump would decide to run for President again as an independent, whether or not he ran in the Republican primaries and lost or not, and consequently split more comprehensively the right-wing, and/or anti-Democratic, vote.

In March 2023, Simon Marks of the i newspaper hypothesised that Trump being defeated in the primary may not prompt him to run independently - should he be able to do so - but rather whether Trump "feel[s] slighted" by the eventual nominee. Despite this, Trump continued to hold a commanding position in polling in Republican presidential primaries for 2024, and so it was considered that these concerns may not have materialised further or lasted through into the election. However, Trump's polling fomented fears among Republicans that there could be a failure to concentrate on one non-Trump candidate, and that a wide field of other candidates could remain in the race for too long and hand Trump the win with a low plurality of the vote, as in 2016.

Trump was later declared the presumptive nominee in March 2024, with only one candidate - Nikki Haley - remaining by Super Tuesday, who withdrew from the race in the following days.

Previous presidential elections

• 2012: Gary Johnson was three minutes late to withdraw from Michigan's Republican Party primary, and was therefore on the ballot. As a result, he was denied ballot access as a Libertarian. The Libertarian Party stated that since petitioning in Michigan is by party, not by person, a Texas businessman who is also named Gary Johnson would stand in and run for president as a Libertarian in Michigan, but a U.S. District judge denied their motion.
  • Gary Johnson was certified as a write-in candidate and received 7,774 votes in Michigan in the general election that year. This predicament was once again raised as a possible roadblock to a third-party run by Donald Trump in 2016, should he have failed to achieve the Republican Party's nomination for president that year.
• 2008: Texas Representative Ron Paul did not succeed in achieving the Republican Party presidential nomination in 2008. Many supporters then attempted to "draft" him to run for President on the Libertarian Party ticket instead, but some - including his strongest 'devotees' - opined that "because of enforceable Republican Party pledges he had taken as the condition for being admitted to the primary ballot in several states – sore loser provisions in a different form – he was prohibited from accepting a third-party general election candidacy."
• 1980:
  Further information: § Anderson v. Celebrezze (1983), and Anderson v. Celebrezze
  • Illinois Representative John B. Anderson embarked on an independent candidacy for President, following his failure to obtain the Republican Party nomination. He had entered around two-thirds of the Republican presidential primaries for 1980, yet despite that was able to make it onto the ballots of all states (plus the District of Columbia) as an independent, after successful litigation.
  • J. Davids Gillespie, author of Challengers to Duopoly: Why Third Parties Matter in American Two-Party Politics, wrote, in 2012, that "[f]our states still claim that their sore loser laws apply to presidential candidates. But precedent apparently was set by Anderson's ballot-cracking success, and it unlikely that the courts would uphold a state seeking to apply sore loser law to banish a presidential candidate from its general election ballot."

References

{{{1}}}

Links to read

Accessed 12/1/23

• [1]

Accessed 17/4/24

• [2]

Accessed 19/4/24

• [3]

Retrieved 19/4/24

• [4]
• [5]
• HOW STATE “SORE-LOSER” LAWS MAKE
• [6]
• [7]
• [8]
• [9]
• [10]
• [11]
• [12]
• [13]
• [14]
• [15]
• [16]
• [17]
• [18]
• [19]
• [20]
• [21]
• [22]
• [23]
• [24]

Retrieved 28th June 2024

• [25]
• [26]
• [27]
• [28]
• [29]
• [30]
• [31]
• [32]
• [33]
• [34]
• [35]
• [36]
• [37]
• [38]
• [39]
• [40]
• [41]

Retrieved 16th August 2024

• [42]
• [43]
• [44]
• [45]
• [46]
• [47]
• [48]