Josh Goodman is a former staff writer for GOVERNING..E-mail: email@example.com
Until now, one common reading of the 2008 Republican veepstakes is that John McCain really wanted to pick Joe Lieberman, but feared a social conservative backlash that would have roiled the Republican convention and deprived the Arizona senator of his base in November.
Now, we have a new explanation. Some states have "sore loser" laws that prevent candidates from switching parties at the last minute to gain a spot on the ballot. As Politico reports, A.B. Culvahouse, who vetted vice-presidential candidates for McCain, says those laws tripped up Lieberman:"Five states have sore loser statutes ... [making] it very difficult for someone who's not a member of the Republican Party to become the vice presidential nominee if they only switch parties to become a Republican shortly before the convention,' Culvahouse said in public remarks at the Republican National Lawyers Association annual meeting aired on C-SPAN.
In a discussion of Ron Paul, Richard Winger explained in 2007 why these laws probably wouldn't apply to presidential candidates:In Texas, unfortunately, in 1996 the Constitution Party filed a lawsuit against Texas to get a ruling that the "sore loser" law doesn't apply to president. The federal judge who got the case, James Nowlin, refused to enjoin Texas' interpretation that the "sore loser" law does apply to president. The denial of injunctive relief is reported as US Taxpayers Party v Garza, 924 F Supp 71 (1996).
However, the opinion does not discuss the fact that the true candidates in November are running for presidential elector, not president. A presidential candidate's name is not listed on the November ballot in his or her role as a candidate. Instead, the name is an identifier for specific slates of candidates for presidential elector.
Since Congress has repeatedly recognized that presidential electors may vote for anyone who holds the constitutional qualifications to be president (by always counting the votes for so-called "faithless electors", except in 1872 when some electors voted for Horace Greeley even though he was deceased), it seems plain that no state can tell a slate of presidential electors that they cannot label themselves with the name of anyone they intend to vote for. Furthermore, the U.S. Supreme Court said in Anderson v Celebrezze that a single state has a lesser state interest in blocking a presidential candidate from its ballot than from blocking candidates for other office. Since the overwhelming majority of states permit "sore loser" presidential candidates, it is likely that a court in the future would not uphold Texas' interpretation.
While McCain embraced the idea that Palin was a risky pick, he apparently wasn't willing to risk the legal battles that would have accompanied the selection of Lieberman -- even though he likely would have won in court.
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