Outside the Beltway

Ohio Secretary Of State: Trump Can’t Run As An Independent In Ohio

Ohio's Secretary of State is already precluding the possibility that Donald Trump could get on the ballot as an independent in the Buckeye State.

Doug Mataconis · Tuesday, December 15, 2015 · 11 comments

Ohio’s Republican Secretary of State has already put up a major roadblock to any threat Donald Trump may make to run as an independent in the General Election:

COLUMBUS, Ohio—Donald Trump filed Friday to run as a Republican presidential candidate in Ohio, meaning that he now cannot run as an independent in the state next year, according to Secretary of State Jon Husted’s office.

However, an elections law expert questioned that assertion, pointing to a U.S. Supreme Court case upholding the right of an independent presidential candidate to appear on the Ohio ballot.

Trump has repeatedly said he might run as an independent or third-party candidate if he’s not treated “fairly” by the Republican establishment.

But under the Ohio Revised Code and case law, any independent presidential candidate running in the state must first disaffiliate with any political party “in good faith.”

“Since Donald Trump has filed a declaration of candidacy with our office as a Republican, has filed with Federal Election Commission as a Republican candidate and voluntarily took part in the Republican presidential debates, the first of which was held in Ohio, there is no way for Mr. Trump to disaffiliate from the Republican Party ‘in good faith’ during this election cycle,” said Husted spokesman Joshua Eck in an email.

However, Dan Tokaji, an Ohio State University law professor specializing in election law, said Husted’s interpretation of the law is contradicted by a 1983 U.S. Supreme Court ruling on a case from Ohio.

In that case, Republican-turned-independent presidential candidate John Anderson was blocked from the 1980 Ohio general election ballot because he missed a statutory deadline to register as an independent candidate. The Supreme Court ruled 5-4 that Ohio’s early filing deadline was unconstitutional.

Husted’s office would keep Trump from running as an independent for a slightly different reason, “but it seems to me it’s the same principle” as the Anderson case, Tokaji said.

Eck disputed Tokaji’s conclusions, saying the Anderson case has “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.

The issue that Husted brings up is one that I’ve mentioned before in discussions about Trump’s repeated threats over the course of the past several months, most recently in November and notwithstanding the fact that he had signed a pledge in which he promised to support the eventual Republican nominee and not run as an independent should he be the nominee. Specifically, that is the issue of so-called “sore loser” laws that prevent a candidate from running as an independent candidate in the event that they have also run as candidate for the same office in a contested party primary. There are laws of this type on the ballot on 46 out of the 50 states, with the only exceptions to the rule being Iowa, Vermont, Connecticut, and New York. While the provisions of the law vary from state to state, the basic provisions state that a candidate who is on the ballot for a primary, and most certainly one who is actually on the ballot and campaigning at the time of the primary, will be barred from running as an independent candidate if they don’t win the nomination. This is one reason why Lisa Murkowski, who lost the 2010 Republican Senate Primary to Joe Miller, was unable to get on the ballot as an Independent and instead had to take the unusual step of launching a rare, and ultimately successful, write-in campaign to retain her seat. In many states, there are steps that a candidate can take to end their candidacy and get off of the ballot in a primary race in time to get around the provisions of the sore loser law, but there are generally very strict deadlines regarding how that can be done. Gary Johnson, who was briefly a candidate for the Republican nomination in 2012 before dropping out of the race, found this out in Michigan when his campaign was unable to get him off the primary ballot in time and, as a result, was unable to get him on the ballot as the Libertarian Party nominee. When Johnson sued to try to get on the General Election ballot, a Federal District Court Judge held that the sore loser law prevented Johnson from getting on the ballot notwithstanding the fact that he had effectively ended his campaign for the Republican nomination well before the time that Michigan voters actually voted in their 2012 primary.

The comments from Hulsted’s office, while not necessarily binding because there may be some way for Trump to get around Ohio’s sore loser law by getting off the ballot before the primary or taking some other step not mentioned here, is an example of an issue that Trump would face in nearly every other state in the country at this point, and most certainly in the ones where he has already qualified to be on the primary ballot. It’s also worth noting that Hulsted is a Republican who is supporting Ohio Governor John Kasich, so his office’s comments here should probably be taken in that context. Nonetheless, as election law expert Rick Hasen noted back in August, sore loser laws are just one of the roadblocks a Trump independent bid would face at this point. Others include the fact that the mere act of getting on the ballot as an independent candidate is quite difficult, in many states it’s more difficult than qualifying as the representative of a recognized political party. Election law attorneys have argued in the past that many of these roadblocks are potentially unconstitutional, but even if they are right in some or many cases, making those challenges would prove quite costly and would divert time and energy from campaigning for any independent bid. Most importantly, though, running as an independent would require Trump or any other candidate to invest far more money in an on the ground campaign than Trump has seemed willing to do. For all of these reasons, Trump’s threats to run as an independent if he isn’t “treated fairly” ring hollow. Of course, for the past five months, Trump has defied the experts so perhaps he’d actually be willing to put the resources an independent bid would require on the table. In any case, he’s likely to keep everyone guessing about it, and the media and political pundits will continue guessing about it.