Presidential candidates Donald Trump and Ben Carson are currently two top contenders for the Republican nomination. Trump remains the leader with 35.6 percent of the polls, while Carson was in second but recently slid into fourth place behind Ted Cruz and Marco Rubio. Their popularity, however, stems from their outsider status as neither has held elected office before.
Their recent entry into Republican politics has caused some to question their party loyalty--and rightfully so. Both candidates have declared that they would consider running as an independent if they did not win the nomination, or were "not treated fairly" by the Republican establishment. However, increasingly, people are beginning to ask, is that even possible?
In December, after Donald Trump officially filed as a candidate in the state of Ohio, Secretary of State Jon Husted said that Trump cannot officially run as an independent in that state anymore. According to Ohio Revised code, independent candidates need to disaffiliate with a political party in good faith before running as an independent, which Trump's filing and participation in debates within the state preclude him from doing.
Ohio's law is not unique. Across the country, most states have some form of "sore loser law" which dictates that the loser in a primary election cannot then run as an independent in the general. Some states achieve this effect without an official law on the books, but by requiring simultaneous registration dates for the primary and general election so candidates cannot change their affiliation after the results are in.
Connecticut, Vermont, New York, and Iowa are the only four states in the country without either simultaneous registration or sore loser laws on their books.The laws derive from the two major parties worrying about potential spoiler scenarios, which has grown in scope as parties have continued to polarize in the last few decades. In fact, the ubiquity of these laws across the country is a fairly
recent phenomenon. In 1985, only about half of U.S. states had some sort of sore loser law.
Connecticut, which does not have a sore loser law, saw the effects first hand in 2006. In the state's Senate election that year, Joe Lieberman lost the Democratic primary against Ned Lamont. Lieberman, who had been the incumbent, then decided to run as an independent. Since Connecticut is unique in allowing this scenario, Lieberman was able to triumph and enter the Senate again as an independent, this time unrestricted by party loyalty.
Parties fear this scenario because it reduces their power over elections, but sore loser laws deprive voters of a broader array of choices in a democratic election.
Scholars, like Michael Kang, a law professor at Emory University, argue that these sore loser laws are in fact detrimental to full democratic participation. The laws tend to discourage the development of third party politics in American politics by granting automatic access to major party politicians while requiring third parties and independent candidates to demonstrate substantial outside public support before being able to run.
For most candidates, this creates significant incentive to attempt major party affiliation as a first course of ballot access, deterring a third party bid. However, these laws then serve to bar a potential alternative avenue if the first one fails.
Kang makes a serious case for repealing sore loser laws in order to give alternative candidates new leverage within their party. He believes that without the strictures to discourage third party campaigns, the result would be to promote less polarization and more compromise toward a political center in both primary and general elections.
If the 2016 presidential election has demonstrated anything, it is that polarization is a major problem within the United States. To some degree, the parties seem to be appealing to almost two different countries.
On Vox's The Weeds political podcast, they argue that there are often trillion-dollar differences between the party's policy proposals without any suggestions for solutions in between. What this demonstrates is the need for more moderate candidates and strictures that allow for moderation to exist. Repealing sore loser laws might be a first step.
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