This is the fourth in a series of posts about my forthcoming article, Scrutinizing Federal Electoral Qualifications, 90 Indiana Law Journal (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.
Senator Rand Paul may want to run for President of the United States in 2016. But he is also very likely interested in running for the United States Senate in 2016, too--just in case the president thing doesn't work out for him. But his home state of Kentucky has a law that prohibits him from running for both offices at the same time--a law of some difficulty for the potential Paul campaign. Is it constitutional?
Drawing upon my earlier analyses, the answer is yes--because it is a condition on running for president, and not a condition on running for Senate.
Kentucky cannot add to the qualifications to candidates for office in the Senate. That much is obvious from the Supreme Court's decision in U.S. Term Limits v. Thornton. It could not condition running for Senate on refusing to run for president.
One might argue that this is merely a ballot access rule. After all, Mr. Paul could not run for the Senate unless he filed paperwork, or obtained a certain number of signatures to get on the ballot or won a qualifying primary election, or something like that. The line occasionally blurs. "Sore loser" laws--laws that prohibit candidates who lose a primary election from running for federal office in the general election--have been held as permissible regulations, not additional qualifications. "Resign to run" statutes--laws that require a state official to resign office before running for federal office--have been upheld as restrictions on conditions on state offices, not as additional qualifications for federal office. Perhaps it's the case that the state has a more permissive regulatory interest in making sure someone is not running for two offices when he can only fill one. But that's a nuanced claim, and one that, I think, would take time before I felt comfortable settling on one side.
But the other side is different--a condition on running for President might be that one cannot also be on the ballot for the Senate.
Under the Constitution, the state legislature may direct the "manner" of selecting presidential electors. It may select electors itself, or it may permit the people to vote. But, perhaps, it may cabin the discretion of the people in how they vote--perhaps by excluding certain candidates it does not wish the people to vote for. Akhil Amar, for instance, in his book America's Unwritten Constitution, posits that prior to the Nineteenth Amendment, which guaranteed women the right to vote, states could have excluded women from running for the office of president--but that the "unwritten" Nineteenth Amendment now would prohibit.
It might be, then, that U.S. Term Limits does not extend to presidential candidates. Indeed, the state is only selecting the manner of appointing presidential electors; how those presidential electors act is another level of review. It might simply prohibit a candidate's name from being listed on the ballot, but, in the case of presidential elections, the final decision is left with the presidential electors. And Kentucky has no law (that I found) that would require electors to vote for the named candidates. In a sense, then, the candidates names on the ballot are mere proxies for a slate of presidential electors and, perhaps, the state legislatures possess the latitude to decide how to condition the appearance of candidates of the ballot.
The best possible defenses of the law, then, are that it is a reasonable ballot access provision, not a "qualification"; and, further, even in the event it is something closer to a "qualification," it is within the discretion of the legislature to decide the manner of the selection of presidential electors, and that may include cabining the discretion of the voters with a requirement that a candidate for President cannot be listed for another office.
But, it's a heavily gray area without obvious answers. We'll see if the Kentucky legislature arises at a novel solution to avoid a judicial intervention into this political thicket.