Sore loser laws and democratic contestation

Georgetown Law Journal

Volumn 99, Issue 4, 2011, Pages 1013-1075

  Kang, Michael S ^a  

^a EMORY UNIVERSITY   (United States)

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EID: 79956140252     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (430)

1. See DAVID E. PRICE, BRINGING BACK THE PARTIES 128-29 (1984);
2. Kay Lawson, How State Laws Undermine Parties, in ELECTIONS AMERICAN STYLE 240, 249 (A. James Reichley ed., 1987).
3. See infra Table 1;
4. see also Troy K. Schneider, Op-Ed., Can't Win for Losing, N.Y. TIMES, July 16, 2006, at O13.
5. See SETH E. MASKET, NO MIDDLE GROUND: HOW INFORMAL PARTY ORGANIZATIONS CONTROL NOMINATIONS AND POLARIZE LEGISLATURES 9 (2009) (asserting that party activists "seek the most ideologically extreme candidate they feel they can get elected").
6. Cal. Democratic Party v. Jones, 530 U.S. 567, 581 (2000) (citation omitted).
7. I borrow the term "supply side" from DAVID T. CANON, RACE, REDISTRICTING, AND REPRESENTATION: THE UNINTENDED CONSEQUENCES OF BLACK MAJORITY DISTRICTS (1999). In the context of redistricting, Canon describes his supply-side examination of majority-minority districts as focused on "the supply of candidates-how individual politicians respond to the changing electoral context imposed by new district lines and how, in turn, their decisions shape the electoral choices and outcomes in a given district."
8. Id. at 3. Similarly here, I consider the regulation of party politics from the supply side by focusing on sore loser laws that restrict the supply of candidates from the primary elections into the general election.
9. See Michael S. Kang, Race and Democratic Contestation, 117 YALE L.J. 734, 738 (2008).
10. See generally Terry Smith, A Black Party? Timmons, Black Backlash and the Endangered Two-Party Paradigm, 48 DUKE L.J. 1 (1998) (discussing the political value of partisan exit as a means of influencing a party coalition).
11. E.g., Kusper v. Pontikes, 414 U.S. 51, 58 (1973) ("A prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process.").
12. See ALAN ABRAMOWITZ, THE DISAPPEARING CENTER: ENGAGED CITIZENS, POLARIZATION, AND AMERICAN DEMOCRACY 34-61 (2010);
13. NOLAN MCCARTY, KEITH T. POOLE & HOWARD ROSENTHAL, POLARIZED AMERICA: THE DANCE OF IDEOLOGY AND UNEQUAL RICHES 1 (2006);
14. BARBARA SINCLAIR, PARTY WARS: POLARIZATION AND THE POLITICS OF NATIONAL POLICY MAKING 3-13 (2006);
15. Richard Fleisher & John R. Bond, The Shrinking Middle in the U.S. Congress, 34 BRIT. J. POL. SCI. 429, 431-36 (2004);
16. Jason M. Roberts & Steven S. Smith, Procedural Contexts, Party Strategy, and Conditional Party Voting in the U.S. House of Representatives, 1971-2000, 47 AM. J. POL. SCI. 305, 305 (2003).
17. See, e.g., MORRIS P. FIORINA WITH SAMUEL J. ABRAMS & JEREMY C. POPE, CULTURE WAR?: THE MYTH OF A POLARIZED AMERICA 77 (1st ed. 2005);
18. John H. Evans, Have Americans' Attitudes Become More Polarized?-An Update, 84 SOC. SCI. Q. 71, 76-78 (2003);
19. cf. Roberts & Smith, supra note 9, at 306 ("[T]he largest expansion of party polarization of the electorate's policy attitudes, which occurred in the 1990s, follows congressional polarization." (citing Gary C. Jacobson, Party Polarization in National Politics: The Electoral Connection, in POLARIZED POLITICS: THE PRESIDENT AND THE CONGRESS IN A PARTISAN ERA 9 (Jon Bond & Richard Fleischer eds., 2000)).
20. But see MATTHEW LEVENDUSKY, THE PARTISAN SORT: HOW LIBERALS BECAME DEMOCRATS AND CONSERVATIVES BECAME REPUBLICANS 126-28, 133 (2009) (describing Republican and Democratic voters as having become more ideologically uniform as a function of partisan sorting);
21. Alan I. Abramowitz & Kyle L. Saunders, Is Polarization a Myth?, 70 J. POL. 542, 553-54 (2008) (finding deepening ideological polarization among party supporters, particularly among the most interested, most informed, and most politically active).
22. Samuel Issacharoff, Collateral Damage: The Endangered Center in American Politics, 46 WM. & MARY L. REV. 415, 424 (2004).
23. See ALAN WARE, THE AMERICAN DIRECT PRIMARY: PARTY INSTITUTIONALIZATION AND TRANSFORMATION IN THE NORTH 255-64 (2002).
24. Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 224 (1989)
25. (quoting Ripon Soc'y, Inc. v. Nat'l Republican Party, 525 F.2d 567, 601 (1975) (Tamm, J., concurring)).
26. See, e.g., Stephen Ansolabehere, James M. Snyder, Jr. & Charles Stewart, III, Candidate Positioning in U.S. House Elections, 45 AM. J. POL. SCI. 136, 152-54 (2001);
27. Barry C. Burden, The Polarizing Effects of Congressional Primaries, in CONGRESSIONAL PRIMARIES AND THE POLITICS OF REPRESENTATION 95, 95-97 (Peter F. Galderisi, Marni Ezra & Michael Lyons eds., 2001);
28. Elisabeth R. Gerber & Rebecca B. Morton, Primary Election Systems and Representation, 14 J.L. ECON. & ORG. 304, 321 (1998).
29. Cf. FIORINA WITH ABRAMS & POPE, supra note 10, at 78 ("For as long as we have had data, political scientists have known that political elites are more polarized than the mass of ordinary Americans.");
30. Herbert McClosky, Paul J. Hoffman & Rosemary O'Hara, Issue Conflict and Consensus Among Party Leaders and Followers, 54 AM. POL. SCI. REV. 406, 426 (1960) ("Whereas the leaders of the [Democratic and Republican] parties diverge strongly, their followers differ only moderately in their attitudes toward issues.").
31. See, e.g., Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593, 625-28 (2002) (arguing that partisan gerrymandering has contributed to partisan polarization).
32. See Samuel Issacharoff, Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition, 101 COLUM. L. REV. 274, 307 (2001). (Pubitemid 33632015)
33. See MAURICE DUVERGER, POLITICAL PARTIES: THEIR ORGANIZATION AND ACTIVITY IN THE MODERN STATE 216-28 (Barbara North & Robert North trans., Methuen & Co. 2d ed. 1961) (1951).
34. Id. at 248-49;
35. see also Gary W. Cox, Centripetal and Centrifugal Incentives in Electoral Systems, 34 AM. J. POL. SCI. 903, 919-22 (1990) (presenting the different electoral incentives for minor parties under proportional representation).
36. DUVERGER, supra note 18, at 226-27. A nontrivial number of minor parties nonetheless regularly field candidates, even though "most minor parties never expect their candidates to win," in part because minor parties believe that "[f]ielding candidates is merely one way to advance their agendas and to communicate with the public."
37. See Elizabeth Garrett, Is the Party Over? Courts and the Political Process, 2002 SUP. CT. REV. 95, 110.
38. ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 115 (1957).
39. See id. at 116-17.
40. See id.
41. See id.
42. See generally EDWARD G. CARMINES & JAMES A. STIMSON, ISSUE EVOLUTION: RACE AND THE TRANSFORMATION OF AMERICAN POLITICS 27-58 (1989) (describing the permanent transition of partisan loyalties in the South during the 1960s);
43. Alan I. Abramowitz & Kyle L. Saunders, Ideological Realignment in the U.S. Electorate, 60 J. POL. 634, 640 (1998) (finding a reversal in the "traditional regional gap in party identification").
44. See Paul Frymer & Albert Yoon, Political Parties, Representation, and Federal Safeguards, 96 NW. U. L. REV. 977, 998-1016 (2002) (describing the parties' use of campaign finance money);
45. Gerald M. Pomper, The Fate of Political Parties, 2 ELECTION L.J. 69, 72 (2003).
46. See, e.g., Issacharoff, supra note 11, at 428.
47. See Randall L. Calvert, Robustness of the Multidimensional Voting Model: Candidate Motivations, Uncertainty, and Convergence, 29 AM. J. POL. SCI. 69, 86 (1985) (predicting convergence is likely with perfect information but less likely when voter preferences are uncertain).
48. See R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 60-118 (1990) (describing uncertainty about voter preferences and candidate strategies in light of that uncertainty);
49. LAWRENCE R. JACOBS & ROBERT Y. SHAPIRO, POLITICIANS DON'T PANDER: POLITICAL MANIPULATION AND THE LOSS OF DEMOCRATIC RESPONSIVENESS 22 (2000) (explaining how party actors seek to shift public opinion toward their policy preferences).
50. See Adam Meirowitz, Keeping the Other Candidate Guessing: Electoral Competition When Preferences Are Private Information, 122 PUB. CHOICE 299, 299-302 (2005) (finding formally that uncertainty about candidate and voter preferences is more likely to produce platform divergence);
51. Rebecca B. Morton, Incomplete Information and Ideological Explanations of Platform Divergence, 87 AM. POL. SCI. REV. 382, 389 (1993) (finding candidate divergence as a function of ideological motivation and uncertainty about voter preferences).
52. See DOWNS, supra note 21, at 117.
53. See John H. Aldrich & Michael D. McGinnis, A Model of Party Constraints on Optimal Candidate Positions, 12 MATHEMATICAL& COMPUTER MODELLING 437, 449 (1989).
54. See Kaare Strom, A Behavioral Theory of Competitive Political Parties, 34 AM. J. POL. SCI. 565, 574 (1990);
55. Aaron Wildavsky, The Goldwater Phenomenon: Purists, Politicians, and the Two-Party System, 27 REV. POL. 386, 388, 393-94 (1965);
56. Walter J. Stone & Alan I. Abramowitz,Winning May Not Be Everything, But It's More Than We Thought: Presidential Party Activists in 1980, 77 AM. POL. SCI. REV. 945, 945-46 (1983) (describing the works of political scientists finding there has been a rise in "purists" among American political activists, although arguing that even these "purists" favor electability over ideology).
57. See JOHN H. ALDRICH, WHY PARTIES? THE ORIGIN AND TRANSFORMATION OF POLITICAL PARTIES IN AMERICA 22-23 (1995);
58. see also MARTY COHEN, DAVID KAROL, HANS NOEL & JOHN ZALLER, THE PARTY DECIDES: PRESIDENTIAL NOMINATIONS BEFORE AND AFTER REFORM 31 (2008) (defining party activists as "intense policy demanders" whose purpose is "to place reliable agents in government offices");
59. DAVID KAROL, PARTY POSITION CHANGE IN AMERICAN POLITICS: COALITION MANAGEMENT 18 (2009) (noting that party politicians are "constrained to maintain a sufficient differential between themselves and the opposition on . . . issue[s] to motivate [party activists] to remain loyal").
60. See MASKET, supra note 3 ("A vast, poorly informed general electorate that leans toward the incumbent's own party does not instill as much fear among incumbents as a smaller, tightly controlled primary electorate.").
61. See generally NELSON W. POLSBY & AARON WILDAVSKY WITH DAVID A. HOPKINS, PRESIDENTIAL ELECTIONS: STRATEGIES AND STRUCTURES OF AMERICAN POLITICS 41-47 (12th ed. 2008) (discussing the intraparty debates over the tradeoff between electability and ideological principle in party candidates).
62. DOWNS, supra note 21, at 118.
63. Cf. MASKET, supra note 3 (concluding that partisan politics currently produce "a highly polarized government whose elected officials are often ideologically steadfast and unwilling to compromise, even in cases in which they might win a few more general election votes by doing so").
64. See generally Leonard Shapiro, Decentralized Dynamics in Duopoly with Pareto Optimal Outcomes, 11 BELL J. ECON. 730, 737 (1980) (describing a model of duopolies in which a Pareto optimum may be reached without interaction amongst the duopolists);
65. George J. Stigler, A Theory of Oligopoly, 72 J. POL. ECON. 44, 45-46 (1964) (explaining that oligopolists can seek to maintain their profit share by assigning each buyer to a single seller or by fixing the market share of each oligopolist).
66. See generally Michael S. Kang, The Hydraulics and Politics of Party Regulation, 91 IOWA L. REV. 131, 140-41 (2005) (describing the democratizing impulses behind opening party primaries).
67. See Richard H. Pildes, The Supreme Court 2003 Term-Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 29, 103 (2004) (explaining that proponents of open and blanket primaries hoped that they would "generate more centrist candidates (and thus elected officials) who better reflected median voter preferences").
68. 479 U.S. 208 (1986).
69. Id. at 212.
70. Id. at 214.
71. 450 U.S. 107 (1981).
72. See Richard H. Pildes, Judging "New Law" in Election Disputes, 29 FLA. ST. U. L. REV. 691, 693 n.4 (2001) (interpreting La Follette as judicial hostility toward attempts by states "to extend [their] powers into direct control of national political party conventions").
73. 530 U.S. 567 (2000).
74. See Kang, supra note 39, at 141.
75. See generally Nathaniel Persily, Toward a Functional Defense of Political Party Autonomy, 76 N.Y.U. L. REV. 750, 773-84 (2001) (describing the "[p]olitics and [e]mpirics" of Proposition 198, which proposed the blanket primary, and the Court's decision in Jones).
76. Jones, 530 U.S. at 571.
77. Cal. Democratic Party v. Jones, 984 F. Supp. 1288, 1290 (E.D. Cal. 1997), aff'd, 169 F. 3d 646 (1999), rev'd, 530 U.S. 567 (2000).
78. Jones, 530 U.S. at 580.
79. Shaun Bowler & Todd Donovan, Political Reform via the Initiative Process: What Voters Think About When They Change the Rules, in VOTING AT THE POLITICAL FAULT LINE: CALIFORNIA'S EXPERIMENT WITH THE BLANKET PRIMARY 44 (Bruce E. Cain & Elisabeth R. Gerber eds., 2002) (quoting CAL. SEC'Y OF STATE, OFFICIAL BALLOT PAMPHLET: PRIMARY ELECTION (1996)).
80. Id. at 43 (quoting CAL. SEC'Y OF STATE, supra note 51). At least some opponents of Proposition 198 agreed that a blanket primary would help centrist candidates. Republican Party chairman John Herrington complained that a blanket primary would "'drive candidates of both parties to the meaningless middle.'" Carl Irving, Editorial, Open Primaries Would Help Moderates, S.F. EXAMINER, Feb. 13, 1996, http://www.sfgate.com/cgi-bin/article.cgi?f=/e/a/1996/ 02/13/EDITORIAL461.dtl.
81. Steven A. Capps & Carla Marinucci, State Voters To Decide on Cross-Party Ballots, S.F. EXAMINER, Mar. 18, 1996, at A-2 (quoting San Diego Democratic Senator Steve Peace).
82. See Persily, supra note 47, at 785-86.
83. Kang, supra note 39, at 135.
84. See, e.g., Garrett, supra note 20, at 130-48;
85. Daniel Hays Lowenstein, Associational Rights of Major Political Parties: A Skeptical Inquiry, 71 TEX. L. REV. 1741, 1777-88 (1993);
86. Gregory P. Magarian, Regulating Political Parties Under a "Public Rights" First Amendment, 44 WM. & MARY L. REV. 1939, 2010-43 (2003).
87. See Bruce E. Cain, Party Autonomy and Two-Party Electoral Competition, 149 U. PA. L. REV. 793, 802 (2001) ("What distinguishes political parties from interest groups is that the former officially nominate candidates under their name (i.e., party label) while the latter do not."). (Pubitemid 33656783)
88. Samuel Issacharoff, supra note 17, at 281, 294.
89. See MASKET, supra note 3, at 49 (explaining that the aim of activists within the party coalition is to "ensure that only the sorts of people they like-people who will vote in a certain ideological fashion or will provide particular benefits to their backers-will be able to serve in government").
90. See Marc J. Hetherington, Resurgent Mass Partisanship: The Role of Elite Polarization, 95 AM. POL. SCI. REV. 619, 628-29 (2001) (finding that public perceptions of the major parties tracks patterns of partisan voting in Congress);
91. Jonathan Woon & Jeremy Pope, Made in Congress? Testing the Electoral Implications of Party Ideological Brand Names, 70 J. POL. 823, 833-34 (2008) (explaining how the parties' legislative positions in Congress define their reputations among voters).
92. Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000).
93. Id.
94. At 581 (citation omitted) (quoting Kusper v. Pontikes, 414 U.S. 51, 58 (1973)).
95. Id.
96. At 579 (explaining that a single election in which the party nominee is selected by outsiders could destroy a party).
97. Id. at 582.
98. The most recent attempt to be reviewed by the Court occurred in Washington State Grange v. Washington State Republican Party, where the state of Washington enacted a "top two" primary. 552 U.S. 442, 444 (2008). The new Washington format provided for a two-stage election process: An open primary election, during which any voter could vote for any candidate regardless of partisan affiliation, followed by a general election between only two candidates with the highest vote totals during the primary election.
99. Id.
100. at 447-48. This top two primary by its terms did not choose the parties' nominees, nor did it refer to the top two primary finishers as nominees of their respective parties.
101. See id. at 453 & n.7. Indeed, the primary finishers with the top two vote totals advanced to the general election regardless of their party affiliation, such that two candidates who listed the same party preference could be pitted against each other in the general election.
102. Id. at 448
103. Although the Court rejected a facial challenge as premature, the Court even here left open the possibility for an applied challenge that parties' associational rights might be implicated if voters misinterpreted candidates' listed party preferences as reflecting endorsement by those parties.
104. Id. at 455-56.
105. See Burden, supra note 14.
106. See Morris P. Fiorina, Parties and Partisanship: A 40-Year Retrospective, 24 POL. BEHAV. 93, 103 (2002) (describing parties as malleable entities that party leaders "invent and reinvent to solve problems that face them at particular times in history");
107. Frymer & Yoon, supra note 26, at 981 (declaring that parties "lack any fundamental, enduring, and essential nature").
108. See COHEN, KAROL, NOEL& ZALLER, supra note 34, at 85-86 ("Given that a party is a coalition of intense policy demanders, policy conflicts are bound to arise . . . .").
109. KAROL, supra note 34, at 183.
110. See COHEN, KAROL, NOEL & ZALLER, supra note 34, at 34 (explaining that party coalitions "need to include enough groups to attract a majority of voters in the election, but not so many that it dilutes too much the benefits that any one group can get from being in the coalition").
111. See Fiorina, supra note 67;
112. Frymer & Yoon, supra note 26, at 981 ("Parties, like most political institutions, are highly malleable organizations filled with goal-oriented actors who respond to historically specific political contexts.").
113. NANCY L. ROSENBLUM, ON THE SIDE OF THE ANGELS: AN APPRECIATION OF PARTIES AND PARTISANSHIP 105 (2008).
114. See Kang, supra note 39, at 179 & n.171.
115. See STANLEY B. GREENBERG, MIDDLE CLASS DREAMS: THE POLITICS AND POWER OF THE NEW AMERICAN MAJORITY 303 (1996);
116. William A. Galston, The Future of the Democratic Party, BROOKINGS REV. (SPECIAL ELECTION ISSUE),Winter 1985, at 16, 17-20.
117. See generally Jon F. Hale, The Making of the New Democrats, 110 POL. SCI. Q. 207, 208-28 (1995) (describing the rise of the Democratic Leadership Council during the 1980s and early 1990s).
118. See MARK D. BREWER & JEFFREY M. STONECASH, DYNAMICS OF AMERICAN POLITICAL PARTIES 147-65 (2009) (detailing the intraparty conflict among Democrats about the ideological direction of the national party over the last two decades).
119. Kang, supra note 6.
120. Id. at 753.
121. See Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and "Disclosure Plus," 50 UCLA L. REV. 1141, 1153-54 (2003) (explaining the rational ignorance of most voters);
122. cf. Daniel R. Ortiz, The Democratic Paradox of Campaign Finance Reform, 50 STAN. L. REV. 893, 903 (1998) (describing a view of average voters as "civic slackers"). (Pubitemid 128426606)
123. See Kang, supra note 6, at 755-56 (describing the collective action problem for a mass public);
124. see also E.E. SCHATTSCHNEIDER, PARTY GOVERNMENT 52 (1942) ("The immobility and inertia of large masses are to politics what the law of gravity is to physics. This characteristic compels people to submit to a great channelization of the expression of their will, and is due to numbers, not to want of intelligence.").
125. See JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 283 (3d ed. 1950) ("Party and machine politicians are simply the response to the fact that the electoral mass is incapable of action other than a stampede . . . .").
126. ALDRICH, supra note 34.
127. Id. at 166;
128. see also ANGUS CAMPBELL, PHILIP E. CONVERSE, WARREN E. MILLER & DONALD E. STOKES, THE AMERICAN VOTER 128 (Midway Reprint 1980) (1960) (concluding party affiliation "seems to be . . . strong on those who absorb little of politics and whose image of the candidates is extremely diffuse").
129. See David Schleicher, "Politics as Markets" Reconsidered: Natural Monopolies, Competitive Democratic Philosophy and Primary Ballot Access in American Elections, 14 SUP. CT. ECON. REV. 163, 173 (2006) (noting that competition among parties "gives myopic voters clear, simple choices").
130. See generally PAUL FRYMER, UNEASY ALLIANCES: RACE AND PARTY COMPETITION IN AMERICA (1999) (arguing that currently African-Americans generally have no realistic electoral alternatives outside the Democratic Party).
131. See LEVENDUSKY, supra note 10, at 118-19 (finding that partisans sort themselves by tending to adopt the issue positions dominant within their parties);
132. JOHN R. ZALLER, THE NATURE AND ORIGINS OF MASS OPINION 216-58 (1992) (explaining that committed partisans who filter campaign information through partisan identification are strongly predisposed to resist opposing appeals).
133. ZALLER, supra note 86, at 185-211.
134. Id. at 203-05.
135. See, e.g., WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE 215 (1982) ("[A] new issue that generates disequilibrium allows old losers to become new winners.").
136. See, e.g., Brent Ainsworth, "Tea Party" in Mill Valley Attracts More Than 600;
137. Obama Backers Demonstrate a Few Blocks Away, MARIN INDEP. J. (Novato, Cal.), Mar. 7, 2010, http://www.marinij.com/ ci-14630734?IADID (describing mobilization of Tea Party members against Republicans in Name Only);
138. Kathleen Parker, Op-Ed., The GOP's Misguided Hunt for Heretics, WASH. POST, Feb. 24, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/ 02/23/AR2010022303783.html (describing the hunt for heretics in the Republican Party).
139. See James I. Lengle, Diana Owen & Molly W. Sonner, Divisive Nominating Mechanisms and Democratic Party Electoral Prospects, 57 J. POL. 370, 372 (1995) ("By their very nature, therefore, primaries invite internal party dissension if not civil war.").
140. See COHEN, KAROL, NOEL & ZALLER, supra note 34, at 84 ("What this means in the ordinary language of politics is that nominees must be acceptable to all or nearly all members of the coalition rather than the choice of any small part of it.").
141. See DIANA C. MUTZ, IMPERSONAL INFLUENCE: HOW PERCEPTIONS OF MASS COLLECTIVES AFFECT POLITICAL ATTITUDES 10 (1998) (describing the situation of a primary voter trying "to assess likely winners and losers by gauging the opinions of others in order to make a vote decision").
142. See Geoffrey C. Layman et al., Activists and Conflict Extension in American Party Politics, 104 AM. POL. SCI. REV. 324, 327 (2010) (describing party nominations as "decided through negotiations between various kinds of activists in search of a candidate who is satisfactory to all wings of the party").
143. See, e.g., Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. L.J. 491, 551 (1997); (Pubitemid 127437011)
144. Richard H. Pildes, The Theory of Political Competition, 85 VA. L. REV. 1605, 1610 (1999).
145. See, e.g., Nathaniel Persily, Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws, 89 GEO. L.J. 2181, 2200-01 (2001) (describing how the New York Assembly enacted new ballot access laws providing political parties with a choice between a set of procedures preferred and proposed by the Democrats and different procedures preferred and proposed by Republicans).
146. See Lowenstein, supra note 56, at 1758 ("[U]nlike any other private groups, political parties routinely, pervasively, and legitimately exercise their influence from within the government.");
147. Persily, supra note 47, at 752 ("'The state' is rarely, if ever, a neutral, nonpartisan lawgiver that enacts unbiased rules of party membership.").
148. See Kang, supra note 39, at 181 ("[W]hen the party is subject to state law commands, party actors will seek to terminate difficult intraparty disputes by using state regulation of the party to force their fraternal rivals to acquiesce.");
149. Ellen D. Katz, Barack Obama, Margarita Lopez Torres, and the Path to Nomination, 8 ELECTION L.J. 369, 379 (2009) (warning that allowing "party leaders to enlist and rely on state law as the primary vehicle for party governance, largely reliev[es] these leaders of any need to secure the support or acquiescence of party members to a chosen course").
150. See Kang, supra note 39, at 174-80. In fact, centrist leaders were responsible for demand-side reforms, such as the blanket primary in Jones, after they were frustrated by ideologues within their party.
151. See id. at 164-66.
152. See Katz, supra note 98, at 380 ("The degree to which a nominating regime is penetrable and contestable offers a means to gauge the health and vibrancy of the associational and participatory interests of the participants within it.").
153. Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 646 (1998). (Pubitemid 128426601)
154. Id. at 648.
155. See Kang, supra note 39, at 181-86.
156. Campbell v. Bysiewicz, 242 F. Supp. 2d 164, 174 (D. Conn. 2003);
157. see also Molinari v. Powers, 82 F. Supp. 2d 57, 77 (E.D.N.Y. 2000) (finding that the only purpose of certain restrictions on primary ballot access was "to disadvantage a candidate . . . who does not enjoy the support of the Republican State Committee").
158. See supra note 38 and accompanying text.
159. See supra notes 68-72 and accompanying text.
160. See sources cited supra note 95.
161. See Seth E. Masket, It Takes an Outsider: Extralegislative Organization and Partisanship in the California Assembly, 1849-2006, 51 AM. J. POL. SCI. 482 (2007).
162. Id. at 485.
163. See id. at 486.
164. Id.
165. Masket finds this effect even though at the time a legislator still needed to win her party's nomination to reach the general election under California law.
166. See Dean E. McHenry, Cross Filing of Political Candidates in California, 248 ANNALS AM. ACAD. POL. & SOC. SCI. 226, 228 (1946) (discussing this disqualification mechanism). Despite this legal requirement, party voters could not exercise great leverage on their candidates because they did not know which ones belonged to their party and were subject to their legal veto. It was simply too difficult for party voters to monitor and discipline so many candidates under such conditions of partisan ambiguity.
167. See Masket, supra note 108, at 487.
168. Id.
169. See MASKET, supra note 3 (arguing that informal party activists, through their control of party nominations, monitor and discipline party politicians to be ideologically extreme).
170. Cf. PRICE, supra note 1, at 134 ("Without such laws, candidates may be less inclined to take the primary seriously as an intraparty contest that requires them to come to terms with the organized party and its main constituencies . . . .").
171. See supra note 66 and accompanying text.
172. John Zaller and a group of his colleagues advance a theory of parties that explains the recent trend of party polarization in exactly these terms.
173. Kathleen Bawn et al., A Theory of Political Parties (Oct. 6, 2006) (unpublished paper), available at http://www9.georgetown.edu/faculty/hcn4/ Downloads/ ToP%20October%205.pdf. They argue that parties are driven by intense policy demanders, with more extreme policy preferences than average voters, who want to win for the sake of advancing or at least protecting their intense concerns.
174. See id. at 9. As a result, parties routinely aspire to nonmajoritarian policies and cater to the average voter only as practically necessary to win elections.
175. See id. at 22. The dominant elements within the party hope "for a candidate who will stand up for their intense concerns as faithfully as possible, even if those concerns are not widely popular."
176. Id. They promote faithful candidates "at the nomination stage, either through selection of the candidate in the first place or de-nomination for poor performance."
177. Id. at 37.
178. See supra notes 39-43 and accompanying text.
179. See infra Table 1. See generally Schneider, supra note 2 (discussing the possibility of Senator Lieberman running in Connecticut's general election for U.S. Senator, despite losing the primary, and noting that as of 2006 (and thus, not taking into account Vermont's 2010 sore loser law), only four states did not have sore loser laws).
180. See PRICE, supra note 1.
181. The thirteen states that adopted sore loser laws or their equivalents between 1976 and 1984 are Alabama, Alaska, Delaware, Georgia, Idaho, Louisiana, Massachusetts, Minnesota, Missouri, New Hampshire, Rhode Island, South Dakota, and Wisconsin.
182. See infra Table 1. Louisiana bars sore loser candidacies by virtue of nonpartisan primary elections in which party nominations are not made in the first place.
183. See infra note 137 and accompanying text.
184. The eight states that adopted sore loser laws or their equivalents between 1985 and 1994 are Illinois, Kansas, Michigan, Montana, Nebraska, Oklahoma, Texas, and Utah.
185. See infra Table 1.
186. The two states that adopted sore loser laws or their equivalents between 1995 and 2010 are Vermont and Washington.
187. See infra Table 1. Washington bars sore loser candidacies by virtue of nonpartisan primary elections in which party nominations are not made in the first place.
188. See infra note 138 and accompanying text. Connecticut, Iowa, and New York still do not have sore loser laws.
189. See infra Table 1.
190. Sore loser laws generally apply to all federal, state, and local elected offices, but only four states apply their sore loser provisions to elections for presidential electors-Mississippi, Ohio, South Dakota, and Texas. See Richard Winger, Sore Loser Laws Don't Generally Apply to Presidential Candidates, BALLOT ACCESS NEWS (Jan. 12, 2007), http://www.ballot-access.org/2007/01/12/sore- loserlaws- dont-generally-apply-to-presidential-candidates/.
191. "SL" denotes an express prohibition on sore loser candidacies. "CF" denotes a cross-filing prohibition or other legal requirement that effectively prohibits a candidate from losing a party primary and thereafter filing to run as an independent candidate for the same office or to run in another party primary at the same time for the same office. "PCF" denotes a partial cross-filing prohibition or other legal requirement under which a candidate (i) may run in a party primary and as an independent candidate at the same time for the same office, or (ii) may not run in a party primary and as an independent candidate at the same time for the same office, but may run in more than one primary at the same time for the same office, provided in either case that the candidate files all his or her candidacies in advance of the primary election. "NP" denotes a nonpartisan primary.
192. Arkansas, Colorado, Idaho, Indiana, Kentucky, Maryland, Nebraska, New Jersey, New Mexico, North Dakota, Oregon, South Carolina, South Dakota, Texas, and Virginia all use this method. ARK. CODE ANN. 7-7-103(e) (2007)
193. COLO. REV. STAT. § 1-4-105 (2008);
194. IDAHO CODE ANN. § 34-704 (2008);
195. IND. CODE ANN. § 3-8-1-5.5(a) (West 2006);
196. KY. REV. STAT. ANN. § 118.345(1) (West 2006);
197. MD. CODE ANN., ELEC. LAW § 5-706(b) (West 2010);
198. NEB. REV. STAT. § 32-605 (2008);
199. N.J. STAT. ANN. § 19:13-8.1 (West 1999);
200. N.M. STAT. ANN. § 1-8-19 (2003);
201. N.D. CENT. CODE § 16.1-13-06 (2009);
202. OR. REV. STAT. § 249.048 (2009);
203. S.C. CODE ANN. § 7-11-210 (Supp. 2009);
204. S.D. CODIFIED LAWS § 12-7-5 (2004);
205. TEX. ELEC. CODE ANN. § 162.015 (West 2010);
206. VA. CODE ANN. § 24.2-520 (2006). Oregon prevents only "major party" candidates from running with a party's nomination if they lose another party's primary election.
207. OR. REV. STAT. § 249.031(g) (2009);
208. see also id. § 249.048.
209. California, Illinois, and Kansas fall into this category. CAL. ELEC. CODE §§ 8001, 8003 (West 2003);
210. 10 ILL. COMP. STAT. 5/10-3, -7 (2008);
211. KAN. STAT. ANN. §§ 25-202(c), -306 (2000).
212. Alabama, Alaska, Georgia, Hawaii, Maine, Michigan, Minnesota, Mississippi, Missouri, Nevada, Pennsylvania, Tennessee, Utah, and Wisconsin. ALA. CODE § 17-9-3(b) (LexisNexis 2007);
213. ALASKA STAT. §§ 15.25.030(a)(14), .180(a)(13) (2010);
214. GA. CODE ANN. § 21-2-137 (2008);
215. HAW. REV. STAT. § 12-3(c) (2009);
216. ME. REV. STAT. ANN. tit. 21-A, §§ 144(3), 351(2) (2008);
217. MICH. COMP. LAWS ANN. §§ 168.590g, .692, .692a, .695 (West 2005 & 2008);
218. MINN. STAT. ANN. § 204B.04 (West 2009);
219. MISS. CODE ANN. § 23-15-359 (Supp. 2010);
220. MO. ANN. STAT. § 115.351 (West 2003);
221. NEV. REV. STAT. §§ 293.176(1), .177(2)(a), .200(6) (2009);
222. 25 PA. CONS. STAT. ANN. §§ 2911(e)(5), 2936 (West 2007);
223. TENN. CODEANN. § 2-5-101(f) (Supp. 2010);
224. UTAH CODEANN. §§ 20A-9-201(2)(a)(ii), -501(2) (LexisNexis 2010);
225. WIS. STAT. § 8.15(7) (2007-2008). Mississippi's law is not as explicit as the other states listed in this footnote, but the language of MISS. CODE ANN. § 23-15-359, as it descended from earlier codifications, has long been interpreted by Mississippi courts to prohibit a candidate from running both as an independent and in a primary.
226. See Miss. State Bd. of Election Comm'rs v. Meredith, 301 So. 2d 571, 573 (Miss. 1974);
227. Bowen v. Williams, 117 So. 2d 710, 711 (Miss. 1960) (confirming this interpretation from Ruhr v. Cowan, 112 So. 386 (Miss. 1927));
228. Ruhr, 112 So. at 389.
229. Massachusetts, New Hampshire, North Carolina, Ohio, Oklahoma, Rhode Island, West Virginia, and Wyoming. MASS. GEN. LAWS ANN. ch. 53, §§ 6, 48 (West 2007);
230. N.H. REV. STAT. ANN. §§ 655:14, :43(IV) (LexisNexis 2007 & Supp. 2010);
231. N.C. GEN. STAT. § 163-106(a)-(b) (2009);
232. OHIO REV. CODE ANN. §§ 3513.04, .07 (LexisNexis Supp. 2010);
233. OKLA. STAT. tit. 26, § 5-105 (1991);
234. R.I. GEN. LAWS §§ 17-14-1.1, -2.1 (2003);
235. W. VA. CODE ANN. §§ 3-5-7(d)(6), -23(a) (LexisNexis Supp. 2010);
236. WYO. STAT. ANN. §§ 22-5-204(b), -302 (2009). For instance, the West Virginia law requires independent and third-party candidates to file declaration of candidacy papers at least thirty days before the election and does not allow the nomination of candidates who are already candidates in a primary election.
237. See W. VA. CODE ANN. §§ 3-5-7(d)(6), -23(a). Thanks to Bob Bastress for his advice on West Virginia law. Oklahoma's law, however, is less clear. From 1987 to 2004, the state barred sore loser candidacies by these means for all federal, state, and county candidates. However, in 2004, the Oklahoma Supreme Court held that the disaffiliation requirement did not apply to federal congressional candidates in Bradshaw v. Oklahoma State Election Board.
238. See 2004 OK 69, ¶ 1, 98 P.3d 1092, 1092-93. Since 2004, no candidate to my knowledge has tested this exception, which was contrary to the state election board's interpretation of the statute.
239. See id. at ¶ 9 & nn.10-11, 98 P.3d at 1096 & nn.10-11 (Kauger, J., dissenting) (citing decisions by the state election board).
240. A candidate satisfies this affiliation requirement in most of these states by being a registered party member for a duration of time or by filing as a candidate in a single party primary.
241. See, e.g., ALASKA STAT. § 15.25.110 (2010). After Lisa Murkowski lost the 2010 Alaskan Republican primary, she considered collaborating with the Libertarian Party to have herself replace the Libertarian nominee through this type of potential loophole in Alaskan law.
242. See Christina Bellantoni, Lisa Murkowski Flirts with Libertarians, and They Flirt Back, TALKING POINTS MEMO (Sept. 8, 2010, 5:02 PM), http://tpmdc.talkingpointsmemo.com/2010/09/lisa-murkowski-flirts-with- libertarians.php.
243. See ARIZ. REV. STAT. ANN. § 16-312(E) (Supp. 2010);
244. DEL. CODE ANN. tit. 15, § 3002(b) (2007);
245. MONT. CODE ANN. §§ 13-10-303, -507 (2009).
246. For instance, Michael Castle lost the 2010 Republican primary for Senate to Christine O'Donnell, John Whitesides, Republicans Take Stock After Tea Party Stunner, REUTERS (Sept. 15, 2010, 4:28 PM), http://www.reuters.com/article/ idUSTRE68E0AK20100915, and could not make a sore loser challenge by running as the nominee of another party because the filing deadline for entering another party's primary had long passed by the time of his primary defeat, see DEL. CODEANN. tit. 15, § 3101(2) (2007).
247. See FLA. STAT. ANN. § 99.021(1)(b) (West Supp. 2011) (requiring an oath that the candidate is a registered member of the party in whose primary he seeks nomination and is not a registered member of any other party).
248. See id. § 99.021(1) (failing to require any attestation of disaffiliation from any political party to qualify as a no-party candidate).
249. Act of Apr. 7, 2010, No. 73, §§ 1, 4, 2010 Vt. Legis. Serv. (West) (codified as amended at VT. STAT. ANN. tit. 17, §§ 2351, 2356).
250. See LA. REV. STAT. §§ 18:481 to :482 (2004 & Supp. 2010). Louisiana maintained a top two, or "Cajun," primary from 1978 until 2008, see Love v. Foster, 147 F.3d 383, 385-87 (5th Cir. 1998), when the state switched to closed party primaries from the 2008 election cycle through the 2010 election cycle
251. see Richard A. Clucas, The Oregon Constitution and the Quest for Party Reform, 87 OR. L. REV. 1061, 1087 & n.185 (2008), only to re-institute the top two primary effective as of January 1, 2011, see Act of June 25, 2010, No. 570, sec. 1, § 481, 2010 La. Sess. Law Serv., available at http:// www.legis.state.la.us/billdata/streamdocument.asp?did=722314.
252. See WASH. REV. CODE §§ 29A.52.112, .60.021 (2010).
253. See Aaron Blake, Alaska Sen. Murkowski Concedes Primary, WASH. POST: THE FIX (Aug. 31, 2010, 10:20 PM), http://voices.washingtonpost.com/thefix/senate/ sen-murkowski-picks-up-208-vot.html.
254. See supra note 128 and accompanying text.
255. See Sandhya Somashekhar, Murkowski Poised for Second Full Senate Term, WASH. POST, Dec. 28, 2010, at A5.
256. See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 831 (1995) ("[W]rite-in candidates have only a slight chance of victory.");
257. James A. Gardner, Deliberation of Tabulation? The Self- Undermining Constitutional Architecture of Election Campaigns, 54 BUFF. L. REV. 1413, 1431 n.69 (2007) ("[N]o candidate would deem the possibility of waging a write-in campaign a meaningful substitute for a line of the official ballot form, as the Court has explicitly acknowledged.").
258. See Sandhya Somashekhar, Murkowski May Make Write-in History, WASH. POST, Nov. 4, 2010, at A26 (describing the unusual circumstances underlying Murkowski's rare success as a write-in candidate, the first such Senate election as a write-in candidate since Strom Thurmond's victory in 1954).
259. See, e.g., Mark R. Brown, Policing Ballot Access: Lessons from Nader's 2004 Run for President, 35 CAP. U. L. REV. 163, 168, 193-95 (2006);
260. Klarman, supra note 95, at 535-36;
261. Howard A. Scarrow, Duverger's Law, Fusion, and the Decline of American "Third" Parties, 39 W. POL. Q. 634, 638 (1986);
262. Bradley A. Smith, Note, Judicial Protection of Ballot-Access Rights: Third Parties Need Not Apply, 28 HARV. J. ON LEGIS. 167, 207 (1991).
263. See, e.g., STEVEN J. ROSENSTONE, ROY L. BEHR & EDWARD H. LAZARUS, THIRD PARTIES IN AMERICA: CITIZEN RESPONSE TO MAJOR PARTY FAILURE 139-42 (2d ed. 1996) (explaining the availability of quality candidates as a critical determinant of third-party success at the national level).
264. See id. at 194-99 (noting greater third-party success in presidential elections following a divisive party convention from one of the major parties).
265. Issacharoff, supra note 17, at 292.
266. Bruce E. Cain, Garrett's Temptation, 85 VA. L. REV. 1589, 1602 (1999);
267. see also Daniel H. Lowenstein, The Supreme Court Has No Theory of Politics-and Be Thankful for Small Favors, in THE U.S. SUPREME COURT AND THE ELECTORAL PROCESS 283, 300 (David K. Ryden ed., 2d ed. 2002) (arguing that Duverger's Law with respect to the "single-member-district system" is one of three "structural features . . . most responsible" in creating a duopoly).
268. Cf. William H. Riker, The Two-party System and Duverger's Law: An Essay on the History of Political Science, 76 AM. POL. SCI. REV. 753, 755 (1982) ("Politicians and candidates with some common interests-perhaps only a common desire to win or perhaps also a common ideology or a common identification with a group-appeal to voters under a common banner, and thereby generate political parties.").
269. Although there are many more examples at the congressional, state, and local levels, it is easy to offer historical examples of candidates nominally outside the major parties, running as minor party or independent candidates, providing serious candidacies even at the presidential level. Most famously, Teddy Roosevelt finished second in his 1912 presidential run as the Bull Moose Party's nominee, ahead of incumbent Republican President Howard Taft, in what was "a battle only between Roosevelt and [Democrat Woodrow] Wilson.
270. ROSENSTONE, BEHR & LAZARUS, supra note 145, at 86. It was Taft's candidacy as a Republican incumbent that spoiled Roosevelt's election bid.
271. See id. at 84-86.
272. See MATT BAI, THE ARGUMENT: BILLIONAIRES, BLOGGERS, AND THE BATTLE TO REMAKE DEMOCRATIC POLITICS 260 (2007) (describing the movement against Lieberman as intended to "cleanse the party of Republican appeasers");
273. Kevin A. Pirch, Bloggers at the Gate: Ned Lamont, Blogs, and the Rise of Insurgent Candidates, 26 SOC. SCI. COMPUTER REV. 275, 280-81 (2008) (recounting Lieberman's decline in popularity among Democrats as a result of his support for President George W. Bush and the war in Iraq, among other things);
274. Kate Zernike, Allied with Democrats, Lieberman Easily Aligns with Republicans, N.Y. TIMES, Feb. 8, 2007, at A18 (describing Lieberman's cooperation with Republicans).
275. See Harold Meyerson, Editorial, Lieberman's Real Problem, WASH. POST, July 12, 2006, at A15.
276. See, e.g., William Yardley, Lieberman's Support for War Leaves Him Embattled on Left: Facing Liberal Wrath in Connecticut, N.Y. TIMES, May 19, 2006, at B1.
277. See Pirch, supra note 151 (listing Democratic grievances)
278. See BAI, supra note 151.
279. See David Lightman, Bush Boosts Lieberman's Bid: Statement Seen as Signal to GOP Voters, HARTFORD COURANT, Aug. 22, 2006, at A1.
280. See John Nichols, A Fight for the Party's Soul, NATION, Aug. 14/21, 2006, at 24, 27.
281. Matthew Continetti, Joementum Returns: Ever Since Ned Lamont's Primary Triumph, Lieberman Has Been Ahead, WKLY. STANDARD, Nov. 6-Nov. 13, 2006, at 8.
282. Nichols, supra note 157, at 25.
283. Matthew Continetti, "Pro-War, You Get the Door": The Triumph of the Ned Lamont Democrats, WKLY. STANDARD, Aug. 21-Aug. 28, 2006, at 20.
284. Continetti, supra note 158.
285. Continetti, supra note 160, at 22.
286. See Joe Garofoli, Bloggers Helped Power Lamont Victory, Net Efforts Seen as a Growing Liberal Political Force, SEATTLE POST-INTELLIGENCER, Aug. 10, 2006, at A11.
287. Continetti, supra note 160, at 23 (quoting Eli Pariser).
288. Lieberman could have run as an independent after his primary election defeat because there was no prohibition on him, a registered Democrat, from running as an independent, see supra note 119 and accompanying text, and the filing deadline for an independent candidacy in Connecticut in 2006 was August 9, 2006, the day after the primary election, see OFFICE OF THE SEC'Y OF THE STATE, NOVEMBER 7, 2006 STATE ELECTION CALENDAR 1 (2005), available at http://www.ct.gov/sots/LIB/sots/ ElectionServices/Calendars/2006Election/2006. pdf.
289. Although Lieberman could have run as an independent candidate, see supra note 165, Lieberman chose to run as a minor party candidate, at least as a technical matter, likely because minor party candidates are listed higher up on the ballot order than independents.
290. Bruce Shapiro, Ned Lamont vs. Joe Lieberman: Round Two, NATION, Nov. 6, 2006, at 11, 13.
291. See Continetti, supra note 158, at 9.
292. America Votes 2006-U.S. Senate/Connecticut, CNN.COM, http://edition.cnn. com/ELECTION/ 2006/pages/results/states/CT/S/01/ (last visited Dec. 17, 2010).
293. See Biography, SENATOR JOSEPH LIEBERMAN, http://lieberman.senate.gov/ index.cfm/about-joe/biography (last visited Dec. 17, 2010).
294. Murkowski's victory illustrates this fact as well. Murkowski's standing and popularity as the incumbent senator was obviously critical to her success as a write-in candidate, which would have been prohibitively difficult to achieve as a political unknown without past electoral achievements.
295. See ROSENSTONE, BEHR & LAZARUS, supra note 145, at 140-42 (defining "nationally prestigious" as including a current or former federal officeholder, or state governor, who has previously run as the presidential or vice-presidential nominee for a major party).
296. Id. at 139.
297. See, e.g., Storer v. Brown, 415 U.S. 724, 736 (1974);
298. Backus v. Spears, 677 F.2d 397, 399-400 (4th Cir. 1982);
299. Nat'l Comm. of the U.S. Taxpayers Party v. Garza, 924 F. Supp. 71, 75 (W.D. Tex. 1996).
300. Am. Party of Tex. v. White, 415 U.S. 767, 781 (1974).
301. 415 U.S. at 736.
302. Id. at 726.
303. Id. at 735.
304. Id.
305. Id.
306. Id.
307. Id.
308. See supra notes 68-73 and accompanying text.
309. Storer, 415 U.S. at 735.
310. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 378-81 (1997) (Stevens, J., dissenting).
311. Storer, 415 U.S. at 736;
312. see also Nat'l Comm. of the U.S. Taxpayers Party v. Garza, 924 F. Supp. 71, 74 (W.D. Tex. 1996) ("[Texas's] 'sore loser' statute prohibits, and thus avoids, divisive and internecine intraparty fights after a political party had decided its nominee.").
313. Storer, 415 U.S. at 736.
314. See supra notes 67-69 and accompanying text.
315. See generally KAROL, supra note 34, at 6-11, 16-20 (describing parties as shifting coalitions, managed proactively by politicians in response to political imperatives, of different groups with intense preferences on particular issues).
316. See generally COHEN, KAROL, NOEL & ZALLER, supra note 68, at 81-85 (describing the intraparty politics of the primary election process).
317. See id. at 82-83.
318. See, e.g., JOHN HEILEMANN & MARK HALPERIN, GAME CHANGE: OBAMA AND THE CLINTONS, MCCAIN AND PALIN, AND THE RACE OF A LIFETIME 259-60 (2010) (discussing how Hillary Clinton, after her defeat in the 2008 Democratic presidential primaries, knew that "[h]er voters were angry, they felt insulted, [and] they had to be coaxed along" into supporting President Obama's campaign).
319. See, e.g., Nicole Duran, How "Red" Is Alaska? Three Shades of Republicanism Exposed by Senate Primary, ROLL CALL (D.C.), June 9, 2004, http://www.rollcall.com/issues/49-135/-5832-1.html (describing the divisive 2010 Alaska Republican primary election for U.S. Senate);
320. Sean Lengell, Murkowski Trails Primary Foe in Alaska: "Tea Party" Candidate in Lead; Senate Race Too Close To Call, WASH. TIMES, Aug. 26, 2010, at A4 (describing contentious primary fights in which incumbents were challenged as unfaithful to party principles);
321. Matt Viser, Primary Voters Back the Familiar: Insurgents Falter; McCain Wins, BOS. GLOBE, Aug. 25, 2010, at 1 (same).
322. Cooperation by party candidates is critical for the party coalition to remain united behind a single nominee in the general election. The party label usually serves well enough to predetermine the votes of party members in the general election against the other major party, but if presented with more than one familiar face from their party, party voters might not have the discipline to vote for only thedesignated nominee in the general election. Party leaders cannot depend on party voters, only so informed and less individually committed to party victory than the party leaders, to refrain from voting for primary election losers. Party voters are too likely to vote again for their favorite candidates if presented with a second chance in the general election. Although sore loser candidacies might rarely be undertaken in practice, the threat of one would always loom as a dire possibility and potential embarrassment for the party. And at least in certain cases, defection by primary losers to run in the general election would be likely to disrupt the precommitment strategy and split the party vote in the general election.
323. See 2 PAUSANIAS, DESCRIPTION OF GREECE bk. III, ch. 20, para. 8-11 (E. Capps, T.E. Page & W.H.S. Rouse eds., W.H.S. Jones & H.A. Ormerod trans., G.P. Putnam's Sons 1926) (c. 160-80 C.E.). Thanks to Jim Greiner for the suggestion of this analogy.
324. See MATTHEW R. CHRIST, THE BAD CITIZEN IN CLASSICALATHENS 68 (2006).
325. Cf. Jo Freeman, The Political Culture of the Democratic and Republican Parties, 101 POL. SCI. Q. 327, 349 (1986) (suggesting "social homogeneity" as a source of cohesion because although "one [obvious] source of cohesion is the desire to win, ⋯ this by itself is not sufficient to hold either party together between campaigns or after divisive primaries").
326. See COHEN, KAROL, NOEL& ZALLER, supra note 34, at 84 ("A party that tries to force the choice of nominees who lack broad acceptability within the party quickly ceases to be a long coalition at all, becoming instead a collection of warring factions.").
327. Robert Draper, It's Just a Texas-Governor Thing, N.Y. TIMES MAG., Dec. 6, 2009, at 30, 32 (quoting Charlie Cook).
328. See supra notes 69-73 and accompanying text.
329. See supra section III.A.
330. See Kang, supra note 39, at 175.
331. See supra notes 174-75 and accompanying text.
332. See supra section II.A.
333. See Patrick J. Kenney & Tom W. Rice, The Relationship Between Divisive Primaries and General Election Outcomes, 31 AM. J. POL. SCI. 31, 31 (1987) (explaining how primary elections create in-group loyalties and out-group hostilities for supporters of different candidates that carry over into the general election).
334. See id. at 42 (concluding that intraparty "hostilities are often so intense that even the threat of a victory by the opposition party in November may fail to rally supporters of losing primary candidates behind their party's nominee");
335. Priscilla L. Southwell, The Politics of Disgruntlement: Nonvoting and Defection Among Supporters of Nomination Losers, 1968-1984, 8 POL. BEHAV. 81, 82 (1986) ("[Disgruntlement over the failure of a preferred candidate to win the party's nomination] can be seen as ⋯ a type of 'sore loser' response ⋯ . that often makes it difficult for [supporters] to redirect their allegiance from a losing candidate to the party's nominee.").
336. See generally ROBERT S. GILMOUR & ROBERT B. LAMB, POLITICAL ALIENATION IN CONTEMPORARY AMERICA (1975) (studying the degree to which supporters of primary losing candidates become alienated from the party through the primary process and refuse to support the party's nominee).
337. See Southwell, supra note 206, at 81, 87-89 & tbl.3 (1986) (identifying the availability of a third-party or independent candidate in the general election as a determinant of whether supporters of losing primary candidates will vote for the party's nominee).
338. See supra section I.A (describing the candidate polarization that results from primary elections).
339. See supra notes 150-69 and accompanying text.
340. As a technical matter, Lieberman ran as the only nominee of the Connecticut for Lieberman Party in 2006. Shortly after the 2006 election, the Connecticut for Lieberman Party had no registered members; Lieberman remained a registered Democrat.
341. See Shawn Zeller, Crashing the Lieberman Party, 64 CQWKLY. 3207, 3207 (2006). John Orman, a critic of Lieberman, changed his registration to the Connecticut for Lieberman Party, and as the party's only member, elected himself party chairman. His first act as chairman was a press release attacking Lieberman.
342. Id.
343. See supra notes 39-40 and accompanying text.
344. See supra note 54 and accompanying text.
345. Democratic Party of the U.S. v.Wisconsin ex rel. La Follette, 450 U.S 107, 122 (1981).
346. The contrast with the Court's decision in another case involving ballot access for minor parties, Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), is also helpful. In Timmons, the Court considered an appeal from the Eighth Circuit and rejected a claim by minor political parties that Minnesota's state law prohibition on fusion candidacies was unconstitutional.
347. Id. at 353-54. Fusion permits a candidate to run as the nominee of more than one party for a particular election, but the Court reasoned that the State was not constitutionally prohibited from barring a party from nominating "those few individuals who both have already agreed to be another party's candidate and also, if forced to choose, themselves prefer that other party."
348. Id. at 363. Sore loser laws, by contrast, prohibit a party from nominating a candidate who is not running as another party's nominee in the relevant election and has been rejected by that party in the primary process. However, the harm from the restriction on parties and candidates identified by the Eighth Circuit remains the same for sore loser laws as for fusion prohibitions-they force minor parties "to make a no-win choice" among "cast[ing] their votes for candidates with no realistic chance of winning, defect[ing] from their party and vot[ing] for a major party candidate who does, or declin[ing] to vote at all."
349. Twin Cities Area New Party v. McKenna, 73 F.3d 196, 199 (8th Cir. 1996), rev'd sub nom. Timmons, 520 U.S. 351.
350. See supra section III.C.
351. See Michael McDonald & Seth C. McKee, Op-Ed., The Revenge of the Moderates, POLITICO (Oct. 20, 2010, 7:02 AM), http://www.politico.com/news/ stories/1010/43872.html (observing under partisan polarization that "strong candidates holding moderate positions realize they are electorally viable by abandoning their party and appealing to the center in general elections").
352. See id. (reporting that 89% of successful minor party candidates for Congress since the CivilWar were ideologically centrist relative to the major parties).
353. See supra note 65.
354. See Bernard Grofman & Scott L. Feld, If You Like the Alternative Vote (A.K.A. the Instant Runoff), Then You Ought To Know About the Coombs Rule, 23 ELECTORAL STUD. 641, 641 (2004) (describing instant runoff voting).
355. This concern for parties' associational interests was the focus in Washington State Grange v. Washington State Republican Party, 522 U.S. 442 (2008), but the Court there refrained from deciding the constitutional question in the absence of empirical data on the likelihood that voters would confuse the candidate's listed party affiliation for an official party endorsement or nomination of the candidate.
356. Id. at 454-58.
357. See supra note 83 and accompanying text.
358. See, e.g., FLA. SENATE COMM. ON ETHICS AND ELECTIONS, LEGAL IMPLICATIONS OF CANDIDATE PARTY SWITCHING IN FLORIDA ELECTIONS, S. 2011-119, Reg. Sess., at 2-3 (2010) (explaining that Florida law permits a candidate to switch party affiliation and run in a different party's primary election or run as a "no party affiliation" candidate in the general election), available at http://www.flsenate.gov/Committees/InterimReports2011/2011-119ee.pdf;
359. see also FLA. STAT. ANN. § 99.021(1)(b) (West Supp. 2011).
360. See 415 U.S. 724, 733 (1974).
361. See id.;
362. see also Curry v. Buescher, 394 F. App'x 438, 446 (10th Cir. 2010) (upholding a similar Colorado statute).
363. Cf. ROSENSTONE, BEHR & LAZARUS, supra note 145, at 194 ("A politician will not even contemplate a third party run until the major parties force him to.").
364. See supra notes 80-83 and accompanying text.
365. See, e.g., Aaron Blake, Specter Won't Rule Out Run as an Independent, HILL (D.C.), Mar. 17, 2009, http://thehill.com/homenews/18790-specter-/#wont- rule-out-run-as-independent (reporting Senator Arlen Specter's reservations about running as an independent and regrets that sore loser candidacies are not permitted in his state of Pennsylvania).
366. See Jonathan Bernstein, The New New Presidential Elite, in IN PURSUIT OF THE WHITE HOUSE 2000: HOWWE CHOOSE OUR PRESIDENTIAL NOMINEES 145, 169 (William G. Mayer ed., 2000) (explaining that party professionals' main loyalty is to their party).
367. See, e.g., Michael Luo, Lacking G.O.P. Largess, Crist Turns to Democrats, N.Y. TIMES, July 1, 2010, http://www.nytimes.com/2010/07/02/us/politics/ 02crist.html (reporting how former Republican Governor Charlie Crist was shunned by some former supporters in the party after deciding to forgo the Republican primary and run for reelection as an independent).
368. See Walter J. Stone, The Carryover Effect in Presidential Elections, 80 AM. POL. SCI. REV. 271, 277 (1986) (finding that committed activists are the most likely to have loyalty to their primary candidates and surprisingly likely not to support the party's nominee other than their own favorite).
369. See Denis G. Sullivan, Party Unity: Appearance and Reality, 92 POL. SCI. Q. 635, 641-43 (1977) (describing the loyalty of party voters to losing primary candidates and their difficulty in shifting support to the primary-winning nominee).
370. See RICHARD HOFSTADTER, THE AGE OF REFORM 97 (1985) (arguing that third parties' "function has not been to win or govern, but to agitate, educate, generate new ideas, and supply the dynamic element in our political life").
371. See, e.g., John F. Bibby & Thomas M. Holbrook, Parties and Elections, in POLITICS IN THE AMERICAN STATES: A COMPARATIVE ANALYSIS 66, 67 (Virginia Gray, Russell L. Hanson & Herbert Jacob eds., 7th ed. 1999) (reporting that since 1950, all but five elected governors were elected as a Democrat or Republican).
372. See V.O. KEY, JR., POLITICS, PARTIES & PRESSURE GROUPS 243 (3d ed. 1952) (observing, for example, that Dixiecrats in 1948 "had no special desire to form a minor party but did so only when it seemed impossible ⋯ to convert the dominant elements in one of the major parties to their views").
373. See SAMUEL J. ELDERSVELD & HANES WALTER, JR., POLITICAL PARTIES IN AMERICAN SOCIETY 22-28 (2d ed. 2000) (characterizing absorption of protest and coalition flexibility as key virtues of the American two-party system).
374. Riker, supra note 149, at 765;
375. see also John H. Aldrich & William T. Bianco, A Game- Theoretic Model of Party Affiliation of Candidates and Office Holders, 16 MATHEMATICAL & COMPUTER MODELLING 103, 116 (1992) ("For politicians, the problem is to assess which party or parties is the most likely to yield a long, successful career.").
376. See Biography, supra note 170.
377. See John Kellett & Kenneth Mott, Presidential Primaries: Measuring Popular Choice, 9 POLITY 528, 530 & n.4 (1977) (explaining the problem of vote splitting).
378. See, e.g., Sean J. Savage, To Purge or Not To Purge: Hamlet Harry and the Dixiecrats, 1948-1952, 27 PRESIDENTIAL STUD. Q. 773, 784-86 (1997) (recounting the Democratic Party's desire to punish Dixiecrats following their defection from the Party during the 1948 elections).
379. America Votes 2006-U.S. Senate/Connecticut/Exit Poll, CNN.COM, http://www.cnn.com/ ELECTION/2006/pages/results/states/CT/S/01/epolls.0.html (last visited Jan. 25, 2011).
380. See David Lightman, Would Party Forgive Joe? Lieberman Says Democrats Can Count on Him if He Wins; Vice Versa Is Iffy, HARTFORD COURANT, Aug. 18, 2006, at A1.
381. Alexander Bolton, Lieberman Says He Has Been Promised Seniority, HILL (D.C.), Oct. 2, 2006, http://www.freerepublic.com/focus/f-news/1712434/posts.
382. Mark Leibovich, Enter, Pariah: Now It's Hugs for Lieberman, N.Y. TIMES, Nov. 15, 2006, http://www.nytimes.com/2006/11/15/us/politics/15lieberman.html. In fact, Democrats continued to caucus with Lieberman, and let him retain his committee chairmanship, even after he campaigned for Republican presidential candidate John McCain subsequently in 2008.
383. See Andrew Taylor, Dems Give Lieberman Wrist Slap over Backing McCain, BUCKS COUNTY COURIER TIMES (Levittown), Nov. 18, 2008, at A6.
384. See Michael J. Klarman, The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking, 29 FLA. ST. U. L. REV. 55, 67-68 (2001).
385. See Terry v. Adams, 345 U.S. 461, 483 (1953) (Clark, J., concurring) (explaining that "the winners of the Jaybird Democratic Association balloting, with but a single exception shown by th[e] record, ran unopposed and invariably won in the Democratic July primary and the subsequent general elections for county-wide office" from 1889 to 1953).
386. Issacharoff & Pildes, supra note 101, at 665.
387. CLARENCE R.WHARTON, WHARTON'S HISTORY OF FORT BEND COUNTY 216 (1939).
388. Although the supermajority requirements were later reduced, the Jaybird Association always required majority support for its endorsement and did not permit victory by plurality.
389. See Pauline Yelderman, The Jaybird Democratic Association of Fort Bend County 72-76 (Aug. 1938) (unpublished M.A. thesis, University of Texas) (on file with the University of Texas Library).
390. Charles Schultz won two terms as County Judge but ran again in the Democratic primary in defiance of the Jaybird Association prohibition on a third term. Schultz lost to the Jaybird winner in a landslide defeat.
391. See Terry, 345 U.S. at 483 n.13 (Clark, J., concurring).
392. See, e.g., Leslie Anne Lovett, The Jaybird-Woodpecker War: Reconstruction and Redemption in Fort Bend County, Texas, 1869-89, at 80 (May 1994) (unpublished M.A. thesis, Rice University) (on file with Rice University) (explaining that whites joined the Jaybirds "under the threat of being shunned by the whole white community as 'social and political outcast[s]'" (alteration in original)).
393. Lawson, supra note 1.
394. Cf. ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES 21 (1970) (describing the exit option available to consumers).
395. See, e.g., Mark R. Brown, Popularizing Ballot Access: The Front Door to Election Reform, 58 OHIO ST. L.J. 1281, 1321-22 (1997);
396. Dmitri Evseev, A Second Look at Third Parties: Correcting the Supreme Court's Understanding of Elections, 85 B.U. L. REV. 1277, 1278-81 (2005);
397. Oliver Hall, Death by a Thousand Signatures: The Rise of Restrictive Ballot Access Laws and the Decline of Electoral Competition in the United States, 29 SEATTLE U. L. REV. 407, 408-09 (2005);
398. Richard H. Pildes, Democracy and Disorder, 68 U. CHI. L. REV. 695, 695-97 (2001);
399. Richard Winger, The Supreme Court and the Burial of Ballot Access: A Critical Review of Jenness v. Fortson, 1 ELECTION L.J. 235, 235-36 (2002).
400. See McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1219, 1226 (4th Cir. 1995).
401. See N.C. GEN. STAT. § 163-96(a)(1) (2004) (amended 2006). In 2006, North Carolina lowered the threshold requirement from 10% to 2%.
402. See Act of Aug. 13, 2006, No. 234, sec. 1, § 163-96(a)(1), 2006 N.C. Sess. Laws 1018.
403. See, e.g., Schrader v. Blackwell, 241 F.3d 783, 791 (6th Cir. 2001) (upholding Ohio ballot access laws similar to North Carolina's);
404. Socialist Workers Party v. Hechler, 890 F.2d 1303, 1306 (4th Cir. 1989);
405. Green Party of Ark. v. Daniels, 735 F. Supp. 2d 1055, 1065 (E.D. Ark. 2010);
406. Patriot Party of Pa. v. Mitchell, 826 F. Supp. 926, 942 (E.D. Pa. 1993).
407. But see Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States To Protect the Democrats and Republicans from Political Competition, 1997 SUP. CT. REV. 331, 362-71 (arguing that the stability of the two-party system does not require legal protection).
408. N.C. GEN. STAT. § 163-96(a)(2) (2009).
409. See DOUGLAS W. RAE, THE POLITICAL CONSEQUENCES OF ELECTORAL LAWS 94-96 (1971) (discussing the local success of parties in Canada and Austria that are minor parties nationally);
410. Riker, supranote 149, at 762 ("[I]f the third party nationally is one of the two larger parties locally, then sophisticated voting by supporters of the weakest party (i.e., one of the two larger parties nationally) strengthens the third party.").
411. See, e.g., Gary D. Allison, Protecting Our Nation's Political Duopoly: The Supremes Spoil the Libertarians' Party, 41 TULSA L. REV. 291, 292 (2005) (detailing third parties' lack of success in U.S. Senate, presidential, and gubernatorial elections);
412. James Bopp, Jr. & Susan Lee, So There Are Campaign Contribution Limits That Are Too Low, 18 STAN. L. & POL'Y REV. 266, 280 n.107 (2007) (noting that an effective campaign generally must communicate with 75% to 80% of potential voters, such that statewide elections require campaigns to reach a larger audience at greater cost).
413. For the 1992 general elections, the Libertarian Party collected 43,620 petition signatures, which was twenty more than the 2% required.
414. See McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1219 (4th Cir. 1995).
415. Id. at 1220.
416. Id. at 1223.
417. Id. at 1224.
418. See id. at 1225 (citing Am. Party of Tex. v. White, 415 U.S. 767 (1974)).
419. See, e.g., Schrader v. Blackwell, 241 F.3d 783, 791 (6th Cir. 2001);
420. Council of Alt. Political Parties v. Hooks, 179 F.3d 64, 80 (3d Cir. 1999);
421. Socialist Workers Party v. Hechler, 890 F.2d 1303, 1306 (4th Cir. 1989);
422. Libertarian Party v. Bond, 764 F.2d 538, 545 (8th Cir. 1985);
423. Libertarian Party of Fl. v. Florida, 710 F.2d 790, 795 (11th Cir. 1983);
424. Arutunoff v. Okla. State Election Bd., 687 F.2d 1375, 1380 (10th Cir. 1982).
425. See sources cited supra note 253.
426. Storer v. Brown, 415 U.S. 724, 735 (1974).
427. What is the justification for such restrictive ballot access laws? The putative deal between states and parties is that parties receive regulatory advantages like ballot access in exchange for submitting to other party regulation that conforms the parties to state preferred procedures.
428. See Libertarian Party of Me. v. Diamond, 992 F.2d 365, 367 (1st Cir. 1993) (explaining that legally recognized parties receive certain benefits, like ballot access and fundraising advantages, along with certain responsibilities, like obligations to hold caucuses, conventions, and primaries). However, the major parties need few state-conferred incentives to organize themselves into their current forms. The major parties adopt their organizational setup, in addition to all the informal relationships that tie together party leaders, because it makes sense politically for party leaders to organize in such a way. Parties have persisted as a dominant vehicle for political action since the founding because parties are useful devices for solving collective action problems and coordinating large groups of voters, activists, and politicians. As John Aldrich posits, party leaders "have created and maintained, used or abuse[d], reformed or ignored the political party when doing so has furthered their goals and ambitions."
429. ALDRICH, supra note 34, at 4. Aldrich summarizes a wealth of political science when he explains that politicians organize and maintain political parties because they "need to orchestrate large and diverse groups of people to form winning majorities, and because often more can be won through parties."
430. Id. at 26. Although additional benefits from election law for organizing into parties may make parties even more attractive, stateconferred regulatory advantages are not the necessary or proximate reason that political leaders create and maintain parties.