Democracy in Action – Sore Loser Laws

Let’s assume you are a moderate Republican running for Congress in a state with a very powerful Tea Party bloc that has tremendous sway in the GOP primary. You are a popular figure, have held state office for years, and you believe that in a general election, your right of center moderate stance is a clear winner. But to win the relevant primary to get where you want to go, you also know that ultra-conservatives, far-right-of-center constituencies (that Tea Party bloc) literally require you to adopt a stance where you have to promise to vote to shut the government down unless you get massive budget cuts in everything from education to infrastructure, that your position on Christian religious values (notwithstanding the First Amendment) must be that they trump any attempts to keep that faith out of political rule and that gay rights are against your most basic principles.

But you are a Republican and have been all your life. You don’t believe in half that stuff. You are fiscally conservative but willing to compromise, socially right of center but understand social values are changing to support more human rights and generally that Americans need to work together from both side of the aisle. So knowing that you have widespread support from voters in both parties, you spread your Republican wings and risk the primary. Right wing SuperPacs point to your willingness to compromise on legislation as a weakness, and the Tea Party throws all of its money and support to it ultra-conservative primary opponent. You lose that primary to that Tea Party player. In the end, you decide that you would trounce that GOP opponent and probably any Democrat willing to risk the effort in the general election, so you file to run as an independent.

In 44 states, you probably cannot. They go by the general name of “sore loser” laws, but what they effectively say is that once you’ve lost a primary or comparable process, you are banned from moving on into the next, usually a general, election. These statutes are not all alike. Some just deal with primaries, while others stop folks in states where nominating conventions set the candidates. As bad as gerrymandering is, where the majority incumbents at the state legislature define the shape and constituency composition of legislative and Congressional districts to deny those in the opposing party a chance of winning anything, sore loser laws seem an even greater incursion on democratic free choice.

Mickey Edwards, writing for the January 23^rd New York Times, provides some hard examples of how this legal structure has impacted recent elections: “In the 2012 Republican Senate primary in Texas, David Dewhurst, the relatively moderate lieutenant governor, won 46 percent of the vote, while the Tea Party favorite Ted Cruz, running an aggressively conservative campaign, won only 33 percent. In the primary runoff, Mr. Cruz beat Mr. Dewhurst — but with just 630,000 Republican votes, in a state of 26 million people.

“Why didn’t the popular Mr. Dewhurst, a proven vote-getter, simply challenge Mr. Cruz in the general election, when all Texans could vote? Under Texas’ sore loser law, once Mr. Dewhurst lost the primary, he was no longer eligible to have his name on the ballot in November. Given that Texas is virtually a one-party state, Mr. Cruz’s relatively small vote total, combined with the sore-loser law, was all he needed to go to Washington and then orchestrate a shutdown of the federal government.

“And Mr. Cruz’s victory was a model of pure democracy compared to what happened in Utah two years earlier… There, Republicans begin the nominating process with a convention of party activists. In the first round of voting for a Senate nominee, in 2010, the incumbent, Robert Bennett, finished third, about a hundred votes behind a conservative activist, Mike Lee. The top three finishers then went to a second round; again, Mr. Bennett came in third, this time trailing Mr. Lee by 320 votes. Mr. Bennett was eliminated and was not eligible to participate in the subsequent runoff primary, which Mr. Lee won.

“There were a mere 3,500 people at this convention. Mr. Bennett would almost certainly have won a vote in which all Utah voters had been able to participate: the state’s sore-loser law meant that 320 party activists effectively made a decision on behalf of the three million people of Utah.” As Americans, right, left or center, we should be ashamed of all of these “methods” to keep in total power one constituency, with one point of view, with vastly more power than that actual constituency would reflect across the entire relevant population.

Gerrymandering, out-of-control, unaccountable and anonymously-supported SuperPacs (with massive spending increases following Citizens United, a 2010 Supreme Court ruling that represents one of the worst decisions in that Court’s history) and sore loser laws tell the world that the United States is a nation ruled by special interests and powerful political machines at the expense of what best for the nation as a whole and what serves the vast majority of Americans, while protecting the rights of minorities. Is that the America you want to continue?

I’m Peter Dekom, and if we don’t rail at injustice, then we are the enablers of a system of government that every day looks less and less like a true democracy.