Will Republicans be able to replace Ney in Ohio

COLUMBUS, OHIO – While election officials are examining whether Rep. Bob Ney’s (R-Ohio) hand-picked successor is eligible to run for his seat in the fall, ...

In Ohio, party officials are able to replace a candidate who withdraws ... except, when it's the Republicans trying to name a replacement candidate, and the Democrats are looking for some way to steal the election.

In a piece written by Jackie Kucinich, whom I suppose is the wife of Dennis Kucinich, the extreme left-wing Congressman from Ohio, the Republican replacement candidate state Senator Joy Padgett is described as "hand-picked" by Congressman Ney, when her status as a replacement candidate is to be decided by party officials whose tenure is independent of Ney.

Her so-called disqualification is a "sore-loser" provision in the Ohio election law, which says that a loser in the primary cannot subsequently run in the general. (Padgett had been a candidate for Lt. Gov. in the primary, on the ticket that lost.) It is not clear how this provision applies to being a candidate in the primary for one office, who then runs in the general for another office. Past application of the law has been to candidates in the primary who lost, who attempted subsequently to run in the general as an independent.

Regardless of the interpretation of this law for state offices, it is patently clear that it establishes an unconstitutional qualification for Congress (as, e.g., state laws requiring residency prior to election day).

I expect the state elections board, consisting of two Republicans, two Democrats and the Secretary of State (Ken Blackwell) to put Padgett on the ballot, citing both that the law wasn't intended to apply to candidates for offices in the general not the ones they lost in the primary; and, that the statute is unconstitutional as applied to federal offices. Then, I expect the Democrats to appeal the administrative decision, and to seek an emergency injunction to prevent the people of Ohio from having the right to vote.

If Ney resigns now, there will have to be a new primary.

If he waits there is a certain time frame in which the Republican Party selects his replacement on the ballot, likely intended to handle the case where there isn't enough time to hold a primary but there is enough time to change the ballots.

She wasn't in the primary for this race, nor is she trying to run as an independent, she would be seeking the party nomination. I don't see how the sore loser clause could be construed to apply.

Ohio politics isn't a subject that is getting much honest coverage.

An article I read about this yesterday basically accused Blackwell of stalling setting up a primary to replace Ney on the ticket, even though Ney hasn't filed to drop out of the race yet.

I don't see the point in the sore loser clause, but I also don't see how it is unconstitutional.

US Constitution, Article I, Section 2:

Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

The constitution explicitly authorizes the States to have their own qualifications and processes for electing US congressmen. They however must use the same qualifications that are used for the largest branch of the state legislature.

Those qualifications cannot contradict the requirements in the constitution, but they can add restrictions on top of them and to my knowledge every state does.

There are two levels of analysis here. One considers state law. In general, the intent of sore loser laws is to prevent exactly what Lieberman is doing in Connecticut; i.e., running as an independent for the same office for which he ran in the primary. O.K., but what about Ohio? And, just to keep this simple, let's talk about state offices in Ohio, so as to preclude the qualifications issue. According to the following blog, the Ohio sore loser provision would prevent Padgett from filing from another office (with some exceptions), but doesn't prevent party officials from naming her as a replacement candidate:

http://www.chrisgeidner.com/blog/archive/005521.html

The other level of analysis concerns the federal constitution. The U.S. Supreme Court has ruled, in the U.S. Term Limits case, that the state cannot use ballot access to ADD to the qualifications of candidates for Congress. This year, we find that this means that states are precluded from predicting residency on election day in determining eligibility, in determining ballot status. I don't know if the Court, or other courts, have ruled on the sore loser rule except to say this: Sore loser rules serve a legitimate state interest of a "winnowing process," and, so, are allowable. BUT ... just because something is allowable doesn't mean it's constitutional. We may be dealing with a conflict implicit in the law that now may have to be resolved.

As to these sore loser rules, the Democrats have used them time and again to deny people the right to vote. Most recently, in Pennsylvania, they kept Ralph Nader off the ballot because - can you believe it??? - he couldn't an an "independent" in Pennsylvania, since he was a "Reform Party" candidate in at least one other state. Going back a few years, the Democrats tried to keep Pat Buchanan off the ballot in Texas on similar trumped up reasoning. At some point, our judges are going to say that the right to vote is a fundamental right, and cannot be abridged by hyper-technical reading of state election law. But, this - among other things - is what getting 60 votes in the Senate is all about.

I agree with everything you say except - and maybe I'm just clarifying here - that states can add to the qualifications found in the Constitution.

States are allowed by the Constitution to administer federal elections; e.g., the time, manner and place of elections (except where as the Congress may dictate such things). This allows some discretion, e.g., how many signatures are needed by independent candidates to get onto the ballot. BUT, the Supreme Court has made it clear that the state cannot use ballot access to add to the qualifications.

While I'm on the subject, courts have ruled that sore loser laws are allowable because they serve a legitimate state interest in a "winnowing process." As you point out, this is makes some sense. BUT, in this case, a sore loser law is being used to "winnow" the field of candidates down to one, the Democrat, just like in Cuba and Iran. This would pervert the election, and so cannot be allowed.

The Ohio sore loser law may be Constitutional when applied to state offices, however, when not buttressed by the legimiate state interest in a winnowing process, I'd be careful about this. Arbitrary restrictions on ballot access may interfere with the fundamental right to vote.

With regard to federal offices, were it only to deny losers in primaries from filing for the same office in the general as independents, it would certainly be Constitutional; this is in keeping with the 1973 decision you cite.

The U.S. Term Limits case (a later decision) made clear that ballot restrictions cannot have the effect of altering or adding to the qualifications for office.

Now, Padgett was not winnowed out by the primary for this federal office; she was winnowed out by the primary for Lt. Governor. For this reason alone, the reasoning of the decision you cite doesn't apply. Let's say that a state held its primaries for state offices in May and its primaries for federal offices in September. By reason of U.S. Term Limits, it would unconstitutional to debar losers in the May (state) primaries from filing for the September (federal) primaries.

(Were it the other way around, and the federal primaries held first and the state primaries later, I think a state law debarring losers in the federal primaries from entering the state primaries would be problematic, but for reasons other than the qualifications clause.)

Furthermore, Padgett is not filing as an independent candidate, but is being considered as a replacement candidate. I venture to say that losers in primaries cannot be disqualified as replacement candidates in federal elections, since the winnowing process would not be obviated.

States are allowed by the Constitution to administer federal elections; e.g., the time, manner and place of elections (except where as the Congress may dictate such things). This allows some discretion, e.g., how many signatures are needed by independent candidates to get onto the ballot. BUT, the Supreme Court has made it clear that the state cannot use ballot access to add to the qualifications.

Well, I just looked at the Ohio revised code and the only thing I saw that implemented a sore loser clause was the requirement to file as an independent candidate by the deadline of one day before the primary election.

http://onlinedocs.andersonpublishing.com/oh/lpExt.dll/PORC/18c69/19067/19126/1914a?f=templates&fn=document-frame.htm&2.0#JD_3513257

I didn't see any explicit sore loser clause, nor do I see why there would need to be one since the deadline for filing as an independent is before the primary election.

However, if such a provision existed it would not show preference to one potential candidate over another. All candidates would have the same opportunities to run for office, it would just be a requirement on when they must declare for what office they are running and if they wish to seek the nomination of a particular political party.

While I'm on the subject, courts have ruled that sore loser laws are allowable because they serve a legitimate state interest in a "winnowing process." As you point out, this is makes some sense. BUT, in this case, a sore loser law is being used to "winnow" the field of candidates down to one, the Democrat, just like in Cuba and Iran. This would pervert the election, and so cannot be allowed.

No it wouldn't. She is not the only person the Republican Party has to choose from if they have to replace Ney on the ballot. If she is somehow barred from being a candidate, the republican party can replace him with someone else.

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