from Ballot Access News
(where there is a great discussion with 20 comments going on this topic)
Emory University Law Professor Michael Kang has a guest blog post at ElectionLawBlog, suggesting that it would be good policy to ease ballot access laws for the general election, and also to repeal “sore loser” laws.
Kang says that if it is true that party polarization is a problem in the United States, that problem can be eased if moderates are free to get on the general election ballot directly, even if they lose a party primary. His examples from 2010 are Lisa Murkowski and Charlie Crist. Even though Crist did not get elected as an independent, Kang says his presence in the U.S. Senate race caused the Republican nominee to moderate some of his stands. And Murkowski probably has won, even though she had to do it the hard way, via a write-in campaign.
Kang does not mention the legal argument against “sore loser” laws, for Congressional elections, but that argument is powerful. “Sore loser” laws, for Congress, are utterly inconsistent with the U.S. Supreme Court’s opinion U.S. Term Limits v Thornton, the decision that struck down state term limits laws for congressional elections. The term limits decision said that states cannot keep candidates off the ballot, for Congress, just because they have some personal characteristic other than age, citizenship and residency on election day. Yet state “sore loser” laws do keep such candidates off the November ballot. Back when the U.S. Supreme Court upheld “sore loser” laws, in 1974, the Court had not yet decided whether states are free to add to the qualifications to get on the ballot for Congress. The term limits decision was released in 1995. The logic of the 1995 decision overrides the 1974 decision, but the Court did not acknowledge that and has not wrestled with the contradiction since then.
In early 2011, Professor Kang’s scholarly article about “sore loser” laws will appear in Georgetown Law Journal.