An Independent Run by a Republican is Unlikely

(As always, this isn’t an endorsement, just analysis)

The Republican Party is in an uproar. The will of the people is being subverted as the winner of the majority of the primaries, a boisterous populist from New York is being denied the nomination in favor of an insider from Ohio! The Party has refused to listen to the people and it’s time to walk out!

Sound familiar? The place is the Chicago Coliseum and the year is 1912. It’s the first time the Republican Party has held primaries and the atmosphere is electric. Former President Teddy Roosevelt has ridden back to power and swept the majority of the states that have held primaries. His opponent? Sitting president Howard Taft. After days of machinations, the pro-Roosevelt delegates aren’t given a spot at the convention and Taft “steals” the nomination. Some of Roosevelt’s supporters leave, form the Progressive Party (the Bull Moose Party) and nominate Teddy as their candidate.

(The Democrats aren’t fairing much better in 1912 as their candidate, Woodrow Wilson, is having a tough fight against avowed socialist Eugene Debs. Debs would go on to also run as a Third Party candidate in this election).

Alas, a “fractured” Republican Party gets crushed by Democrat Wilson. Taft actually went on to win fewer states than Roosevelt in the national election.

With history as a guide, we turn to look at the 2016 GOP race for the White House. Across the political world, there have been whispers for months, “should the Party put someone up to run against Trump?” and “if Trump doesn’t get the nomination, will he run as a Third Party?”

The quick strategic take on either of these scenarios is guaranteeing the Democrats the White House in the fall (regardless of their nominee). Effectively, in the election map from 2012, the Republicans will have to pick up several states. Obviously, even losing a few percentage points in battleground states to a strong Independent challenger would be devastating. So, yes, at the outset, the strategy of running an Independent to challenge Trump, or Trump running as an Independent would be a bad move for anyone not wanting Hillary Clinton in the White House.

But, there’s a more practical concern (because, sometimes, it seems like the “sides” of this discussion don’t always focus on logic): can a candidate actually get on the ballot in November as an Independent? First, let’s realize we aren’t talking about a “Third Party nominee.” Though the terms are often used interchangeably, the reality in this case is that we are talking about an Independent run. (The reason is obvious, any of the Third Parties with any ballot coverage have their niche nominees and most state deadlines have passed– like the ones for the national parties).

So, how do you run as an Independent? Well, it depends on the state, but, mostly, it comes down to signatures of voters. The exact percentage of voters needed to sign varies by state. Here’s the breakdown from Ballotopedia:

State Est. Signatures Filing deadline
Texas 79,939 5/9/2016
North Carolina 89,366 6/9/2016
Illinois 25,000 6/27/2016
Indiana 26,700 6/30/2016
New Mexico 15,388 6/30/2016
Nevada 5,431 7/8/2016
Georgia 7,500 7/12/2016
Delaware 6,500 7/15/2016
Florida 119,316 7/15/2016
Oklahoma 40,047 7/15/2016
South Carolina 10,000 7/15/2016
Michigan 30,000 7/21/2016
Washington 1,000 7/23/2016
Missouri 10,000 7/25/2016
Arkansas 1,000 8/1/2016
Kansas 5,000 8/1/2016
Maine 4,000 8/1/2016
Maryland 38,000 8/1/2016
Nebraska 2,500 8/1/2016
New Jersey 800 8/1/2016
Pennsylvania 25,000 8/1/2016
Vermont 1,000 8/1/2016
West Virginia 6,705 8/1/2016
Massachusetts 10,000 8/2/2016
South Dakota 2,775 8/2/2016
Wisconsin 2,000 8/2/2016
Alaska 3,005 8/10/2016
Colorado 5,000 8/10/2016
Connecticut 7,500 8/10/2016
Hawaii 4,347 8/10/2016
New Hampshire 3,000 8/10/2016
Ohio 5,000 8/10/2016
Washington, D.C. 4,600 8/10/2016
California 178,039 8/12/2016
Utah 1,000 8/15/2016
Montana 5,000 8/17/2016
Alabama 5,000 8/18/2016
Tennessee 275 8/18/2016
Iowa 1,500 8/19/2016
Louisiana 5,000 8/19/2016
Minnesota 2,000 8/23/2016
New York 15,000 8/23/2016
Idaho 1,000 8/24/2016
Virginia 5,000 8/26/2016
Oregon 17,893 8/30/2016
Wyoming 3,302 8/30/2016
North Dakota 4,000 9/5/2016
Arizona 36,000 9/9/2016
Kentucky 5,000 9/9/2016
Mississippi 1,000 9/9/2016
Rhode Island 1,000 9/9/2016

(https://ballotpedia.org/Ballot_access_for_presidential_candidates)

You’ll immediately notice the other important factor (almost more important than the number of signatures): the deadline to file.

Texas has 38 electoral votes (second only to California’s 55). The absolute last day a candidate can get on the ballot in Texas is May 9. As you know (because you read this blog regularly), there’s a 0% chance that any Republican candidate will have 1,237 delegates before the June 7th primaries (the last day of the primaries).

Now, Texas is even more interesting since it has a “sore loser” law that applies to Presidential candidates. A sore loser law prevents a candidate who lost in a primary from appearing on the ballot in the general election. So, since Texas’ primary is already over, there is no chance that Donald Trump will be able to appear on the Texas ballot in the fall (without being the Republican nominee, obviously).

So, we will know, most likely, by May 9, if there are any national figures running as Independents for the White House.

Let’s keep this going for a minute, though. So what? Texas isn’t everything! Though Texas has a filing deadline within the GOP primary dates, what if someone at the GOP convention gets angry and decides to run as an Independent?

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Well, that person would be ineligible for, at a minimum, 175 electoral votes.The GOP convention is being heldĀ  July 18-21st. If a candidate were to get mad and pull a Roosevelt, he’d still not be allowed to win in any of the states highlighted above.

And if that candidate, regardless of the daunting 175 electoral vote deficit, is unable to act within a week after the convention, he would lose out on another 73 electoral votes on 8/1:

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Wait another week?S3.png

Then the candidate is, mathematically, incapable of winning the Presidency (without the House of Representative) because he has lost out on 310 electoral votes.

But wait! What about a write-in campaign? Everyone knows Trump! They could just grassroots him into the White House!

Nope. Here’s why:

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Not only does Texas have a sore loser law that would prevent Trump from appearing on the ballot (and likely getting any votes in Texas as a write-in candidate), but nearly 40 other electoral votes come from states that do not permit write-in candidates on the ballot. An additional 35 states require candidates to register as write-in candidates

So, here’s the reality: if a “moderate” challenger is incoming for Donald Trump, we will, most likely know by 5/9. Any challenger to Trump would need to make a play for Texas. Failing to qualify for the Texas ballot would cause the candidate to fail before the campaign ever began. Would it be possible for a candidate to emerge after the close of primary voting on June 7 (if, for instance, Trump gets 1,237)? Possibly.

The clearest fact remains: by the time the GOP convention opens, the likelihood of any candidate attempting to run as an Independent is, essentially 0%. Could it be that Trump just runs out of spite and an attempt to force the race into the House of Representatives? It’s unlikely. The sheer number of states where Trump would have to get signatures precludes his attempt (we’ve seen how poor his ground game is already).

The only remaining scenario is whether Trump decides to run as an Independent the day after the end of the Republican primaries on June 7. In this scenario, Trump does not have 1,237. He also knows that there is no way he can win a floor fight at the convention (for the reasons we’ve talked about before). Also, he would know that, per the sore loser law, he wouldn’t be able to appear on the Texas ballot anyway. So, he would wait and see whether he could clinch the nomination. Then, if he couldn’t declare he’s running as an independent and immediately work to get on every state ballot except for Texas. Trump would have an impossibly quick turnaround to get nearly 90k signatures in North Carolina (two days after the last primary), so if he is attempting this strategy, be sure to watch North Carolina in late May. Or, Trump could just focus on getting on the ballot of every state except for Texas and North Carolina (he’d have a significant two week buffer until a more manageable 25k in Illinois). Again, getting the signatures would probably be difficult in some states, but, if Trump wants to go Independent, he’d need to pull the trigger in the first weeks of June.

(n.b other states do have sore loser laws but most have been interpreted as not applying to the Presidential race).

Matt McDaniel

Attorney and Political Commentator

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