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Professor Dan Tokaji
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Equal Vote
Tuesday, August 8
Is Joy Padgett a Sore Loser?
When Rep. Bob Ney (R-OH) announced on Monday that he wouldn't seek re-election, Ohio State Senator Joy Padgett quickly emerged as the front-runner to replace him as the Republican Party's nominee for his U.S. House seat. Senator Padgett was the running mate of Ohio Attorney General Jim Petro, who unsuccessfully sought the Republican Party's nomination for Governor -- but was defeated by his longtime adversary, Secretary of State Ken Blackwell. As the AP reports here, there have been some suggestions that this renders Padgett ineligible to seek the congressional seat that Ney is vacating, by virtue of Ohio's "sore loser" law.

After reviewing Ohio's laws on the question, I've arrived at the tentative conclusion Ohio law wouldn't prohibit Padgett from seeking Ney's seat. That's true regardless of whether she's chosen by special election or party committee appointment.

If Ney officially withdraws more than 80 days before the election -- Friday, August 18 by by count -- then Ohio Revised Code section 3513.312 requires a special election to be held to determine the Republican nominee:
(A) Notwithstanding section 3513.31 of the Revised Code, if a person nominated in a primary election as a party candidate for the office of representative to congress for election at the next general election withdraws as such candidate prior to the eightieth day before the day of such general election ..., the vacancy in the party nomination so created shall be filled by a special election held in accordance with division (B) of this section.
Alternatively, if Ney officially withdraws more than 80 but not more than 76 days before the election, then ORC 3513.31 would appear to govern, as Law Dork (and Moritz alum) Chris Geidner explains in this post. Under that provision, the vacancy would be filled by the "district committee of the major political party that made the nomination at the primary election."

Either way, I don't think Rep. Padgett is barred from seeking Ney's seat under state law. Ohio Revised Code section 3513.04 (the "sore loser" statute) provides, in pertinent part:

No person who seeks party nomination for an office or position at a primary election ... shall be permitted to become a candidate by nominating petition or by declaration of intent to be a write-in candidate at the following general election ....
This statute is designed to address situations where a primary election loser seeks to run as an independent candidate -- either for that office or another office -- in the general election. See State ex rel. Gottlieb v. Sulligan, 175 Ohio St. 238 (1963) (purpose of 3513.04 is to "to prevent a disappointed party candidate who has failed to be selected as a nominee in the primary from again trying to be placed on the elective ballot by entering the arena as an independent candidate"). In other words, it's designed to prevent the sort of thing that Senator Joe Lieberman has threatened to do in Connecticut if he loses.

It's pretty clear that the "sore loser" statute wouldn't apply, if Ney waits until August 21 to formally withdraw, and Padgett is then selected by a party commitee under 3513.31. Under that scenario, Padgett wouldn't have "become a candidate by nominating petition or by declaration of intent to be a write-in candidate at the following general election." Rather, she'd be the appointee of her party committee, and Sulligan held that a candidate chosen by party committee isn't a candidate by "nominating petition."

What if Rep. Ney were to withdraw by August 18, thus necessitating a special election under 3513.312? I don't think the "sore loser" statute would apply in that scenario either. Padgett wouldn't be a general election candidate by nominating petition or write in; instead, she'd be a general election candidate by virtue of having been elected through a special primary election. This too finds supported in Sulligan, which distinguishes party nominees from independent candidates who get on the ballot by "nominating petition":

An examination of the election laws indicates that the phrase, "nominating petition," has a specific meaning. Under our statutes the candidates for public office may gain nomination by two methods: One, by filing a declaration of candidacy accompanied by a petition entitling one to be a participant in the direct party primary wherein candidates from all political parties seek their nomination; or, two, by what is designated as a nominating petition, the method by which the independent candidate may seek his place on the elective ballot. (See Section 3513.252, Revised Code.) In other words, the nominating petition is the method by which the independent candidate seeks his place on the elective ballot.
In sum, Sen. Padgett may have been a primary election loser, but she isn't a sore loser, because she's not seeking to "become a candidate by nominating petition or by declaration of intent to be a write-in candidate at the following general election."

In this post from yesterday evening, Rick Hasen mentioned another provision that might arguably apply, ORC section 3513.052(B). This statute prevents someone from running for office "if that person, for the same election, has already filed a declaration of candidacy, a declaration of intent to be a write-in candidate, or a nominating petition, or has become a candidate through party nomination at a primary election or by the filling of a vacancy ...." The basic idea here, as I understand it, is to prevent someone from running for two offices at the same time. I don't think the special primary election for Ney's congressional seat would be deemed the "same election" as the gubernatorial primary that Petro and Padgett lost.

In an interesting twist, the office of Secretary of State Ken Blackwell -- the Petro-Padgett ticket's opponent in the primary -- is reported here to be reviewing whether or not Ohio law bars Padgett from running. I think that the answer to that question, like the one posed in the title to this post, is "no."

UPDATE: The Ohio Attorney General's office has issued this opinion, which reaches the conclusion that the sore loser statute doesn't apply, consistent with my analysis. Geidner offers this analysis of the AG's opinion.

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