New York real estate developer Donald Trump would have to mount a vigorous legal challenge to run as an independent candidate in Ohio should Republicans deny him the party’s presidential nomination this summer at their national convention Cleveland.
Although Trump currently has more delegates than Republican presidential candidates Ted Cruz, Marco Rubio, and John Kasich, the New York billionaire has been coy at times on whether he would support the GOP nominee if it were not him.
At a debate this month in Michigan he said he would back the nominee, but last August on NBC’s Today Show he said he did not “want to do the independent thing, but I do keep it and it is leverage.”
Trump and Kasich, the governor of Ohio, are engaged in a close race to win Tuesday’s Ohio Republican presidential primary. Yet even if Trump carries Ohio and its 66 delegates, that does not guarantee he would emerge with the 1,237 delegates he needs to be nominated on the first ballot.
But two Ohio election laws would make it difficult for Trump to launch an independent bid after the convention. Both laws create legal obstacles for third-party candidates who have either run in the primary or been affiliated with a political party, as Trump has been.
“Under current law, he can’t do it,” said Matt Borges, chairman of the Ohio Republican Party and a Kasich ally. “Now that doesn’t mean he couldn’t go to federal court and get this law struck down. You never know with federal judges.”
Some election experts are not as definitive. Richard Winger, editor of Ballot Access News in San Francisco, pointed out that an Ohio state court of appeals in 1992 allowed Lyndon LaRouche to run as an independent presidential candidate in Ohio even though he had competed in the state’s Democratic primary earlier that year.
“I think he has a good argument,” Winger said of Trump. “I think it’s 50-50” that Trump could prevail in court.
Trump’s reference to leverage was clearly aimed as a threat to Republican officials in Ohio and across the country. An independent candidacy by Trump would likely siphon off votes from the eventual Republican nominee, much the same way in 1992 when Texas billionaire Ross Perot’s third-party candidacy appeared to hurt the re-election chances of Republican President George H.W. Bush.
Former Democratic congressman Dennis Eckart of Cleveland said former Secretary of State Hillary Clinton “wins easily” if she is the Democratic nominee and Trump runs as an independent.
At stake are two Ohio election laws. The first is known as the “sore-loser” law, which prohibits a candidate who loses a primary from then running as an independent in the November election, with former Ohio Democratic Party Chairman James Ruvolo saying “party primaries mean nothing if there isn’t a sore-loser law.”
The second law requires anyone wishing to run as an independent presidential candidate to file no later than August before the November election. To qualify as an independent, the candidate must claim “not to be affiliated with a political party.”
It would be nearly impossible for Trump to prove he is not affiliated with a political party because he has taken part in Republican debates and GOP primaries. And secondly, by trying to run as an independent, he might violate the sore-loser law.
The Ohio Supreme Court has at least twice upheld the sore-loser law, including in 2014 when it rejected an effort by a Democratic judicial candidate from Ashtabula to file for one judicial seat after losing in the primary for a separate seat.
The second law dealing with party affiliation was upheld in 2006 by the 6th U.S. Circuit Court of Appeals. The federal appeals panel ruled that Charles Morrison of Central Ohio could not run as an independent after losing a Republican congressional primary to then-Rep. Deborah Pryce, R-Upper Arlington.
The court concluded that Morrison not only registered as a Republican and ran in a Republican primary, he also declared himself as a Republican in papers he filed with the Federal Election Commission.
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