“Sore Loser” laws are really sore winner laws

I noted earlier that Gary Johnson will be leaving the Republican primary and instead seek the Libertarian nomination. There is, potentially, one major obstacle in his way, noted at the very end of the Politico piece I quoted:

Libertarians, who were on the ballot in 45 states, are aiming to be on the ballot in all 50 for 2012. One problem Johnson could face is so called “sore loser” laws that will keep him from appearing as a third party candidate next November because he’s already on the GOP primary ballots in Florida, Georgia, Massachusetts, Michigan and Missouri.

This invariably brings up the question, “What is a ‘sore-loser’ law?”

The short answer: a most detestable and rank piece of undemocratic filth, which has no place in our country.

The long answer: a sore-loser law is a law the prevents someone who either lost a primary or later quit a primary from running as either a minor party candidate or as an independent candidate.

As you can imagine, this goes a long way towards keeping out alternative voices in American elections. And you have to ask yourself: what is the point? Why do we need a law prohibiting people from exercising their right to run for office? Here’s how politicians would say it, when Charlie Crist ran from the GOP to run as an independent for Senate in 2010:

“The issue is whether Florida law regarding candidates who change political parties while running for office is unambiguous and expansive enough to promote the state’s interests in political stability and maintaining integrity in the various routes to the ballot,” said a report released this month by the committee. “After careful review, some changes appear worthy of consideration.”

As they say, “the state’s interests in political stability and maintaining integrity in the various routes to the ballot.”. Since “political stability,” in the sense of restricting the number of candidates for an office, is not a legitimate function of the state, and since the “integrity” of the “various routes to the ballot” are in no way harmed by running as an independent, you know what this really means:

Politicians want to ban any competition.

“Sore-loser” laws are really just another way that politicians squelch democracy and free speech and work against the public’s interests. They serve no one but the incumbent, who doesn’t have to worry about annoying certain constituencies or being too radical. Michael S. Kang, from the Emory University School of Law, argues that these laws should be repealed precisely because they are making the parties too polarized:

Fourth, as a consequence, repealing sore loser laws would give centrist candidates new leverage within their parties and induce ideological compromise toward the political center as a result. Party polarization occurs because the party voters with more extreme ideological preferences control their party primaries and elect more extreme candidates as the major party nominees. Party voters screen out more moderate candidates, who have no recourse under sore loser laws other than to become more ideologically extreme in pursuit of primary success. In the absence of a sore loser law, however, party dissenters can threaten a sore loser run that should worry the party’s nominees about splitting the base during the general election. As a result, a repeal of sore loser laws should encourage party leaders and party nominees to reach effective compromises with important dissenting elements within the party to stave off these threats. If they do not, then moderate candidates who cannot survive the primary are free to challenge the major party nominees from the political center in the general election.


This Article thus connects sore loser laws to a theory of democratic contestation that I have introduced in earlier work. A theory of democratic contestation takes as its core democratic value the basic competitive process among leaders to present the mass public with meaningful choices about what they want from government and the way they think about politics.6 This competitive process can be undercut by sore loser laws that allow the major parties to control candidates’ ability to reach the wider public through restriction of the general election ballot. Sore loser laws not only allow the parties to deny attractive candidates and choices access to the general election, but just as importantly, they also give critical leverage to entrenched party leaders and voters who can enforce party orthodoxy on dissenters in what should otherwise be competitive, active democratic contestation within the major parties. This Article therefore applies a theory of democratic contestation to the fundamental institutions of American democracy—its major political parties.

In other words, because the parties won’t allow more moderate or idiosyncratic candidates who participate in their primaries to later participate in the general, they’ve become more and more radical and extreme, which makes governing next to impossible. And it robs voters’ choice.

It’s a lot like gerrymandering, though it doesn’t receive nearly any of the outrage.

Richard Winger of Ballot Access News has previously noted, however, that Sore Loser Laws Don’t Generally Apply to Presidential Candidates, so Johnson might not have to worry about this. That article, however, was written back in 2007, and laws have undoubtably changed since then. I’m not an expert on ballot access regulations, so I can’t tell you if it will matter in this case. But one thing it doesn’t matter is whether or not they should stay: they shouldn’t.

In this country, the first in the Western world to truly embrace democracy, to have laws that prevent citizens from running on the ballot is a disgrace. To have laws that say people who lose primaries can’t run as independents is absolutely childish. I’m sure some would characterize opponents of these laws just like that—“Now now, you had your turn, and you didn’t win, so just be a good little boy and sit down”—but we’re not talking about the elementary school playground here. We’re talking about the government of the United States.

It’s time we put these laws to rest. It’s time we reopen democracy to all. That’s the only way we’re going to clean this swamp.

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