Trump’s Threat of a Third-Party Run Is Undercut by ‘Sore Loser’ Laws

Ryan Teague Beckwith
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(Bloomberg) -- Donald Trump hates losing so much that he has suggested he will mount a third-party campaign if he doesn’t win the Republican presidential nomination.

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But he can’t win that way either, thanks to “sore loser” laws in six states he would need to return to the White House.

Michigan, Ohio, Pennsylvania and Texas, as well as Arkansas and Alabama, have laws that bar a candidate defeated in a major-party primary from running as an independent or on a third-party ticket in the general election. That would put Trump at the general-election starting gate with a deficit of 91 electoral votes of the 270 required to capture the White House.

Trump has flirted since 2016 with running for president on a third-party ticket or as an independent if he loses the GOP nomination. Republican National Committee Chair Ronna McDaniel said she hopes to require candidates to sign a pledge to support the GOP nominee as a requirement to participate in primary debates, a similar tactic the RNC used to try to box in Trump in 2016.

But any pledge would not be binding. Sore-loser laws would keep Trump’s name from even appearing on the ballot, although voters could still write him in.

A third major candidate on a presidential ballot poses problems for the Republican or Democratic parties, which dominate US politics, by splitting the votes of similarly minded candidates and handing victory to the opposite candidate, something that has happened a handful of times since the 19th century.

Presidential candidates who ran as independents or on a third-party ticket after losing a major-party primary include former President Theodore Roosevelt — also making an attempt to return to office four years after leaving the White House — in 1912, US Representative John Anderson in 1980 and former New Mexico Governor Gary Johnson in 2012. They all lost.

Asked about the risk of an independent run splitting the GOP vote, a Trump campaign spokesperson stated simply that he would win the Republican primary.

Trump declined to commit to an RNC pledge to back the presidential nominee, telling reporters during the Conservative Political Action Conference on Saturday he’d have to think about it because there are “people I wouldn’t be very happy about endorsing.”

Trump is generally ahead or roughly tied in early polls with Florida Governor Ron DeSantis, who has not yet announced if he will run. Former UN Ambassador Nikki Haley, who launched her campaign in mid-February, and other potential contenders remain in single digits.

In a recent survey by Republican pollster Whit Ayres for The Bulwark, an anti-Trump conservative news outlet, 28% of Republican primary voters said they would back Trump if he ran as an independent in a three-way race with DeSantis and President Joe Biden.

That’s the exact situation that sore-loser laws were designed to prevent. Some simply set early deadlines for filing, which makes it hard for candidates to launch such a campaign only after losing a party nomination, to strict bans on appearing on the ballot at all.

The laws aren’t always clear on whether they apply to presidential candidates.

“These laws have not really been scrutinized or tested because there hasn’t been a significant case like this since John Anderson” in 1980, said Barry Burden, a political science professor at the University of Wisconsin-Madison. “My guess is if Trump tried this move, there’d be a lot of litigation.”

Mark Brown, a law professor at Capital University who has worked on cases involving the laws, said that if Trump mounts a credible third-party candidacy “all bets are off.”

Even in states without strict bans, he said getting on the ballot would be a massive undertaking, and Republican officials like secretaries of state and attorneys general wouldn’t be inclined to give Trump the benefit of the doubt.

“It’s a draining process,” he said. “I know Trump’s wealthy, but it costs a lot of money to navigate, even without the legal challenges which are sure to come.”

Still, Trump wouldn’t have to be a viable candidate to have an effect on the race. In 2000, third-party candidate Ralph Nader was only on the ballot in 43 states, but his share of the vote was larger than the margin of victory for George W. Bush in Florida and New Hampshire. A win in either state would have made Democratic nominee Al Gore president.

Theresa Amato, Nader’s campaign manager in 2000 and 2004, said tracking election laws in 50 states and the District of Columbia was a massive undertaking for the campaign, lining up everything from volunteer signature gatherers to election law attorneys and presidential electors. The campaign had to put together its own manual on getting on the ballot.

“It’s a huge logistical undertaking, and no candidate should underestimate it,” she said.

--With assistance from Mark Niquette.

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