Rand Paul's ballot time-bomb: Why he may have to sue to run for president

Paul can't appear on Kentucky ballots for both president and Senate. Will he have to choose one over the other?

By Jim Newell
Published November 18, 2014 11:58AM (EST)
Rand Paul                                     (AP/Lauren Victoria Burke)
Rand Paul (AP/Lauren Victoria Burke)

OK, sure, there's little doubt that Rand Paul is going to win the next presidential election by a 538-0 electoral vote margin. But there's maybe .000001 percent possibility he won't that we can't fully rule out. He could lose the general election, for example, if the Democrat Party Voter Fraud Machine tries to steal it. He could also lose to one of the other ~35 Republican presidential candidates in the primary. And then what does he do? Go home to Kentucky and be a boring old eye doctor for the rest of his life? He'd probably like to return to the Senate, where he's up for reelection in 2016.

This is the problem. Kentucky law states that "no candidate's name shall appear on any voting machine or absentee ballot more than once." That means that on May 17, 2016, the day of the Kentucky primary, Rand Paul cannot be a candidate in both the presidential primary and Senate primary.

Kentucky Republicans had hoped to change this law. The Republican-controlled state Senate has already passed a bill to allow Paul to run for both. But Republicans failed to win control of the state House on election night, and the Democratic House speaker, Greg Stumbo, has blocked the bill. He claims "the state constitution bars lawmakers from passing 'special legislation' that would benefit only one person." He added, a bit more to the point: "I’m not a fan of Sen. Paul, and I’m not eager to see my country turned over to him."

Ever since the results of the election, when Republicans weren't able to take the Kentucky House, the CV has been that Paul will have to make a decision: run for president or run for Senate reelection. And what a decision that would be! ESPN could film an hour-long special on the whole thing, live from a Boys and Girls Club in Connecticut. After 59 minutes of time killing, Paul could say something like, "I'm taking my talents to the Iowa caucuses" and then dunk on Jeb Bush's head.

But don't expect anything so stark as a decision. There are several workarounds available to Paul. None of them are perfect, and some are more "fun" than others.

The simplest solution, as both the Wall Street Journal and TPM report, would be for Paul not to run in the Kentucky presidential primary. That means ceding some delegates, but he'd still have 49 other states in which to pick them up. It would be hilarious if he lost the nomination by a narrow margin that he could've made up in Kentucky, but that's a slim possibility.

He could also get Kentucky Republicans to move some dates around -- the Kentucky presidential primary would instead be a caucus held earlier in the calendar, while his Kentucky Senate primary would still be in May. NPR explains:

Paul and his supporters, though, have already thought of a partial workaround: Change Kentucky's Republican presidential nominating contest from the May 17 primary to a caucus in mid- to late March. That way, Paul could still file for the Kentucky primary ballot in January, appear on (and presumably win) the Senate primary in May — all the while pursuing the presidential nomination.

This wouldn't require a change from the Kentucky legislature, only approval from state and local Republican Party officials.

The downside to either of these two options or something similarly creative, though, is that they wouldn't solve his general election ballot problems. If he won the presidential nomination, he would have to drop out of the Senate race. This is bad for both Paul and the Republican Party. Paul could lose the presidential election and find himself out of work. And Republicans -- according to Stumbo, at least -- would not be able to replace Paul on the Senate ballot that late in the race: "The Democratic candidate would win the seat." This is your moment, Ashley Judd.

The path that would make life easiest for Paul and the Republican Party would be to try to get this meddlesome state law thrown off the books through a court challenge. This represents the most "Rand Paul" of all the options for Rand Paul, were he to argue that the law barring him from running for multiple offices is unconstitutional. From TPM:

Paul's lawyers can file a lawsuit against the Kentucky law saying it's unconstitutional.

"The basis of the lawsuit would be that the U.S. Constitution lists the qualifications for people to run for either U.S. House or Senate and they are either citizens of the United States, resident of the state, and for Senate 30 years of age," University of Kentucky College of Law professor Josh Douglas told TPM. "So the argument here is that saying you can't be a candidate for more than one federal office is an additional qualification so it violates the qualification clause of the U.S. Constitution."

"There are several cases that say that a state has broad ability to dictate who appears on its ballot and also that there's no fundamental right to be a candidate," Douglas said, but warned that the argument, while it has merit, isn't a "slam dunk."

Oh, Rand Paul's lawyers should definitely file this lawsuit. The dorm-room philosophical bloviation that Rand Paul's known for, combined with the obvious pursuit of self-interest, would make for a fantastically entertaining argument. Your Honor, the Founders clearly intended for my client, Rand Paul, to run for as many offices as he wants to. It is in all of the Federalist Papers. Are you familiar with the Federalist Papers, Your Honor? Hmm, yeah, my client didn't think so. My client thinks maybe you should read them sometime, if you want to know anything ...

Jim Newell

Jim Newell covers politics and media for Salon.

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