Back in August, USA Today reported on a wee little problem Donald Trump would encounter if he decided to give up on his bid to win the Republican nomination and attempt to run as an independent or third-party candidate instead.
Ohio is one of several states that have “sore loser” rules prohibiting a candidate from appearing on the ballot as an independent or third-party candidate after they have previously declared themselves a candidate in another party.
Ohio Secretary of State Jon Husted, a Republican, has concluded that since Trump has filed with the Federal Election Commission to pursue the Republican nomination and “voluntarily participated” in the Republican presidential debate in the state of Ohio, he has “chosen a party for this election cycle” and declared himself “as a Republican in the state of Ohio,” said Husted spokesman Joshua Eck.
Mark that down as the first major hurdle Trump would face in trying to mount a 50-state campaign for president as an independent.
Most states have sore loser laws, but almost all of those laws only apply to congressional elections or can be circumvented with smart election attorneys. In truth, Trump could get around most of these laws (including probably Ohio’s) by carefully choosing between filing as an independent or as the nominee of an actual or newly created third party. One thing Trump has is the money to hire the armies of attorneys and petition canvassers that he would need to get on all 51 (or very nearly all 51) ballots.
It would be a messy process, though. In Ohio, Trump is now precluded from using a petition drive to get on the ballot as an independent but could still appear as the nominee of a third party, whereas in Michigan he is precluded from appearing as a third party candidate but could still use a citizen petition drive to get on the ballot as an independent.
It sounds to me like Trump will need to devote a lot of attention and massive amounts of resources to making sure his team doesn’t screw up and wind up failing to get him on the ballot in any states. He’ll probably have to create his own third party because that would be much simpler than winning the nomination of a bunch of pre-existing third parties. But this third party would be useless to him in some states, and Michigan is pretty important state with a lot of electoral votes. All of this will have to be done with a careful eye to the various filing deadlines in each state. If he goes this route, it will be a HUUUGE undertaking, and he’ll have a chance to show us his self-professed managerial skills.
If he wants to do this all concurrently with a straightforward campaign for the Republican nomination, it’s going to cause no end of controversy and consternation. He’ll pay a price for his naked disloyalty to the GOP.
But he can do it.
If he really wants to and he has half the leadership skills he claims to possess, he can definitely pull this off.
What he can’t do is wait until he is somehow denied the nomination at the Cleveland convention to make up his mind. If he wants to hedge his bets and (perhaps more important to him) maintain the credible threat that he’ll bolt the party if he is treated unfairly, he’ll need to get on the ballot access stuff immediately.
And that means that we won’t have any surprises from him. Come convention time, everyone will know if he is in position to run a credible independent candidacy or not. If he hasn’t done this up-front legwork, he can still run as a spoiler by appearing on the ballot in some states, but he won’t have any chance of actually emerging with a majority of the Electoral College delegates.
At Salon, Paul Blest argues that Trump wouldn’t be denied the Republican nomination even if he showed up in Cleveland with a mere plurality of the votes because it would tear the party apart and Trump would just launch an independent bid. It’s a bit more complicated than that. The GOP is already torn apart, first of all, and secondly, Trump won’t necessarily be in position at that late point to credibly run an independent bid.
If Trump has any hope of winning the nomination on a second or third ballot at the convention, he’ll need his independent run to be ready to go and as serious as a heart attack. Otherwise, Trump is going to need to win that first ballot, and that means he’s going to need to win an outright majority of the delegates.
That seems unlikely, but we’ll just have to see, won’t we?
