Evan McMullin, the ‘independent conservative’ who is being backed by a group of Republican activists and pundits opposed to the candidacy of Donald Trump, is hitting some bumps in the road in what was already a quixotic bid to become a viable Presidential candidate:
Better for America, the group that attempted to entice a #NeverTrump candidate into the presidential race by promising him mass ballot access, has folded after falling short.
“While polling continues to show that the electorate is dissatisfied with both candidates, and believes the country to be on the wrong track, the opportunity for BFA to influence this election cycle has diminished over the summer months, and BFA will therefore end its candidate recruitment and ballot access efforts,” the group explained in a statement.
Launched only after Donald Trump began winning primaries, Better for America did not even play in as many states as 2012’s star-crossed (but well-funded) Americans Elect. But while Americans Elect never found a candidate, Better for America seemed primed for one: Evan McMullin, the former House Republican policy aide now running to give anti-Trump voters a choice.
As The Washington Post’s Josh Rogin first reported, McMullin was nudged into the race after Rep. Adam Kinzinger (R-Ill.) passed on a bid. Kinzinger introduced McMullin to Bill Kristol, who introduced him to John Kingston, who had founded Better for America. It wasn’t the only connection McMullin made, but it suggested that ballot access might not be as big a hurdle as it seemed.
Without Better for America, McMullin’s hurdles are towering, and vaulting over them will require a mixture of legal luck, third-party goodwill or a sudden surge of support. As of Tuesday afternoon, he had made the ballot in four states: Colorado, Iowa, Louisiana and Utah. Each success earned McMullin national headlines.
They obscured a running debacle for his campaign. As of Tuesday, McMcMullin had missed the deadlines for ballot access in Alabama, Alaska, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Tennessee, Vermont, Washington, Wisconsin and the District of Columbia. Combined, those states offer 390 electoral votes, meaning that McMullin is at the moment mathematically eliminated from any shot at the presidency.His team did not see it that way. “We have not exhausted all of our ballot access methodologies yet,” McMullin strategist Rick Wilson said in a short interview. “We’re suing in Texas, and we’re told by legal experts that legal victory in one state could have effects in other states.”
Wilson was referring to the case against the Lone Star State’s uniquely onerous ballot rules, which require independent candidates to hand in tens of thousands of signatures by early May — and disallow any signatures from people who voted in party primaries. But McMullin was hoping for better luck than Ralph Nader, who sued the state over those requirements in 2004 and lost. A district court judge ruled that the ballot requirement was not too onerous, based on a misreading of the law. McMullin, who began his legal challenge months later than Nader, is left hoping for a more careful and generous judge.
The other “ballot access methodology” available to McMullin is support from minor parties that already have ballot access, or organizations, in states. “They’re coming out of the woodwork,” Wilson said. Obscure parties like Hawaii’s American Shopping Party and Florida’s Independent Party have time to dump their candidates and give their nominations to McMullin. In one state, Minnesota, that’s already happened — the Independence Party, which grew out of the old Reform Party, is petitioning for McMullin.
But a memo from the McMullin campaign, first reported by ABC News and then analyzed by Richard Winger, suggests that very few states can bail the campaign out. While the campaign suggested access was winnable in Delaware, Florida, Hawaii, Minnesota, New York, Oregon and South Carolina, the third parties in Delaware and New York have endorsed Trump for president. If he does not win any ballot access lawsuits, McMullin may climb back on in just three of the states where he has missed the independent deadline: Florida, Hawaii and South Carolina
To put things in perspective, so far McMullin has ballot access in states totaling 23 Electoral Votes. If he’s successful in Minnesota, where as noted above the Independence Party has agreed to give him their nomination but where he still needs to successfully petition for ballot access, and in the remaining states where it’s possible for him to get on the ballot without resorting to litigation, he would be on the ballot in states totaling 190 Electoral Votes. As for the litigation strategy, reality has taught us that these efforts to rewrite ballot access laws after the fact through the courts have generally not been successful. Typically, the Courts have ruled that the campaigns arguments regarding the difficulties that third-party and independent candidates face compared to major party candidates are barred because they were filed too late in the process and that, by waiting so long the Plaintiffs have waived their right to challenge the requirements at a later date. This was the argument that the Court that rejected the arguments of several Republican candidates who missed the ballot access requirements in Virginia for the 2012 primary based its ruling on, for example, and that ruling was upheld by the Fourth Circuit Court of Appeals. Additionally, the Courts have generally been rather deferential toward the states when it comes to ballot access laws notwithstanding the fact that those laws usually make it harder for independent and third-party candidates to get on the ballot. Finally, like ballot access drives themselves, lawsuits such as these cost money and divert the campaign from actual organizing. Given all of that, it’s not surprising that McMullin’s campaign doesn’t seem to be going much of anywhere even though he seems to have developed a strong presence on social media.
None of this should be surprising, of course. By the time the anti-Trump activists behind his bid settled on McMullin as their candidate after being turned down by established Republican politicians such as Nebraska Senator Ben Sasse among others, it was clear that far too much time had passed for a viable campaign to be launched. At best, all that McMullin can hope to do at this point is play the role of a spoiler in some red states and, along with Libertarian Party nominee Gary Johnson, garner enough votes to deny Trump a victory in states that Republicans would otherwise win easily, such as Utah. If that was the goal of the group behind McMullin, though, it’s unclear why someone inclined to support their goal shouldn’t just throw their support behind Gary Johnson, who is already on the ballot in all 50 states and polling in the high single and low double digits to the point where there is now serious talk about the possibility of including him in the Presidential debates that begin next month. That isn’t going to happen for McMullin. Indeed, it will be surprising if McMullin manages to poll higher than Jill Stein in a single national poll between now and Election Day, or if he manages to show evidence in any statewide polling in states where he has made the ballot. Perhaps things would be different if he’d started this effort much, much earlier, but that’s water under the bridge at this point. As thing stand, though, the backers of Mullin’s campaign would seem to me to have a better chance of having an impact on the race if they joined those Republicans who have endorsed the Johnson/Weld ticket. Instead, we’re getting another quixotic effort to “Stop Trump” that amounts to too little, too late.
