Sore Loser Laws: An Existential Threat to American Democracy

To ensure the strength of American democracy, states should repeal “sore loser” laws in order to allow more diverse representation of the values of the people in the United States government. Outlawing “sore loser” laws would prevent the Democratic and Republican parties from blocking candidates who lose their parties’ primary elections from running as a third party candidate. Allowing “loser” candidates to run as third party or independents would bring attention to a more diverse set of views, forcing major party candidates to address the specific perspectives of the losing candidates’ voters. Repealing “sore loser” laws allows for full expression of the views of minority groups within larger political parties. 

“Sore loser” laws prevent candidates from running under the umbrella of a third party after losing another party’s primary election. These laws are widespread with only three states, Iowa, New York, and Connecticut, having none. In a country with political polarization seemingly everywhere, “sore loser” laws are a bipartisan fixture, with Democratic and Republican politicians passing such laws. The Democratic and Republican parties enact these laws with the goal of preventing close primaries from splitting supporters’ votes in a general election. One example of a “sore loser” law is a statute in Title 11 of the Texas Election Code: “an individual who participated in a party primary ‘is ineligible to be an independent candidate for president or vice-president of the United States in the succeeding general election.’” The Texas law bars individuals who participate in a presidential party primary from subsequently appearing on the ballot as an independent or a candidate for another party. The Democratic and Republican parties support these laws as a way of stifling legitimate challenges to their monopoly on US elections.

Since the president is the single most powerful elected official in the United States of America, viewing sore loser laws through the lens of their effects on presidential candidates is crucial. For a candidate to have a legitimate chance of winning the presidency in the U.S., they must win the nomination of either the Republican or Democratic parties. Under current “sore loser” laws, candidates who lose party primaries cannot run for election under another party or as an independent in most states. According to research done for the Harvard Law Journal, current laws and restrictions would prevent a candidate who fails to win their first attempt in a party’s primary election from being on the ballot in 28 states, accounting for 290 electoral votes. While of those states only South Carolina, Texas, Oregon, Nebraska, Idaho, Colorado, and Arkansas have express “sore loser” laws for presidential candidates, the other 22 states have similar restrictions, ranging from Cross Filing Prohibition (CFP) and disaffiliation requirements (DIS) to deadlines that prevent candidates from filing for the general election after losing a party primary. All of these restrictions effectively prevent presidential candidates who lose party primaries from running for election.

In this polarized climate, the current system of election restrictions forces candidates to run in a major party’s primary election to have any hope of winning a major election. In a research paper for the Georgetown Law Journal, Michael S. Kang argues that is because “[t]he… structure of winner-take-all elections… produces a natural tendency toward two major parties and discourages the development of a third party in American politics… [furthermore] ballot access laws grant virtually automatic ballot access to the major parties while conditioning ballot access for other candidates on… public support” (4).  The effective chokehold of the two-party system means that winning a major party primary is practically required to ensure that a candidate will be on the ballot in the general election. “Sore loser” laws sustain this broken system by preventing the losers of party primaries from continuing to challenge the winning candidate even in situations where the winner of the primary did not even get 50% of the vote. 

“Sore Loser laws” lead to candidates gaining power who do not represent the views of the parties they are intended to represent. Michael S. Kang explains, “A primary election is… when… different elements of a party vie for control, but winners… must compromise sufficiently with losers essential to the party’s efforts or risk losing their support. However, the sore loser law… removes the most potent threat from losing primary candidates—the option of splitting the party coalition by challenging the winner in the general election” (5). While in theory the two main political parties account for many different groups’ views, in reality, the current system, where a candidate only needs to win the majority of a primary to get the party’s full support in the main election, allows extremists to have outsized views in government. This also disproves the commonly made opposition argument that splitting the party coalition is bad, because in reality it is key to keep candidates considering the views of the people they represent to a much larger extent. Thus, laws and regulations which reward candidates who do not accurately represent the views of people should be repealed or extremists will be able to more easily take power.   

One example of how sore loser laws can result in extremist views taking control is the impact Donald Trump has had on the Republican Party. When Donald Trump won the 2016 Republican primary, he had only 44.95% of the Republican Party vote which was the lowest percentage in any party primary in nearly thirty years. Trump not only gained control of the Republican Party with less than 50% of the votes, but he has numerous times taken actions which go against the views of most Republicans. Some examples of this include instituting tariffs and attempting to deport undocumented immigrants. For example, according to an article from the Hill many key Republicans are supporting Kamala Harris, the Democratic party’s candidate. Thus, sore loser laws must be repealed to prevent extremist politicians from taking control of their party upon winning only a primary election with a minority of the vote.

Supporters of “sore loser” laws argue that they are needed to prevent primary losing candidates from “playing spoiler” to the winners of the primaries in the general election, allowing the other party to take power. However, in 1986 a few years before Illinois instituted “sore loser” laws, an election took place that demonstrated why “sore loser” laws actually do not lead to the opposition taking power and instead allow for protection from the party being overrun by extremist candidates. Illinois adopted sore loser laws in 1989 three years after the 1986 Illinois gubernatorial election where the Democratic Party primary was won by a group of extremists led by the antisemitic conspiracy theorist Lydon LaRouche. Since there were no “sore loser” laws in Illinois at the time, the losing Democratic primary candidates were able to run for the Illinois Solidarity Party. As a result, in the general election Lydon LaRouche’s candidacy under the Democratic Party finished a distant third place while the Republican candidate won the election. Votes for the Democratic Party primary loser also far surpassed votes for LaRouche’s. If “sore loser” laws had been in place at this time, the antisemitic extremist candidate might have won the election because the losing Democratic Party primary candidates would have not been able to run in the general election. This does not prove anything about primary losing candidates being able to easily change the election as they only were able to do so with an extremist candidate who had been previously deceiving the voters about their policies. “Sore loser” laws should be repealed to allow valuable opportunities for moderate candidates to have another chance to stop extremists from winning office and to preserve the spirit of compromise in American democracy.