Since losing control of the Republican Party to Donald Trump last month, opponents of the presumptive nominee within the GOP have gotten more desperate in their attempts to find a way to defeat him without helping elect Hillary Clinton to the White House. That desperation has manifested itself in talk of supporting a third-party candidacy. Would such a dire action even work? Let’s try to find out.
Why are we here?
We’re here because Donald Trump is going to be the nominee for the Republican Party and a lot of Republicans don’t like Donald Trump. In one Washington Post poll last month, 42 percent of Republicans held an unfavorable view of Trump. Meanwhile, a mounting list of party stalwarts have either defected from the GOP or promised not to support its presumptive nominee, many under the banner of the #NeverTrump movement. A recent number of polls suggest that Republicans might be coming around to Trump, but his numbers are still incredibly low for a major party candidate. (Hillary’s are also low right now, but let’s save that for another explainer.)
Who are these “Never Trump” people?
Conservative pundits Bill Kristol and Erick Erickson have been the loudest voices in the movement pushing for a third-party conservative to run. Kristol tweeted on Tuesday that he had the #WeightOfWorldOnMyShoulders with his third party quest.
Did that hashtag take off?
So, what is it that the Kristol and Erickson types are actually doing?
They’re talking. A lot. Mostly about how terrible Donald Trump and Hillary Clinton are. They’re also making a bunch of failed overtures to people they think should run.
Why have the overtures failed? Who’s rejecting them?
The overtures have failed because most prominent political figures are smart enough to know that such an independent run would not only be doomed, it would probably hand the election to Clinton and the Democrats and permanently tarnish the newly independent candidate’s standing within the Republican Party, at least among the plurality of its, you know, voters—the ones that actually like Trump.
As for question two, here’s a short list of some of the people who have been approached but said they are not interested or have preemptively rejected the possibility: former Secretary of State Condoleezza Rice, retired U.S. Marine Corps Gen. James Mattis, two-time failed presidential candidate Mitt Romney, Nebraska Sen. Ben Sasse, former Texas Gov. Rick Perry, retired Oklahoma Sen. Tom Coburn, and former Indiana Gov. Mitch Daniels. That’s just the list of people we know about.
Why are you saying an independent run would be doomed? Aren’t Hillary and Trump, like, super unpopular?
Yes, both have incredibly high unfavorable ratings. But, as my Slate colleague Jim Newell has noted, the whole point of a conservative third-party run is that it would be conservative and thus unlikely to peel away votes from the Democratic nominee. In all likelihood, it would just hand an even greater landslide to Clinton.
But isn’t there something with the Electoral College that could hurt Hillary?
Yes, there is! Theoretically, if a third-party candidate were to prevent both Trump and Clinton from winning the 270 Electoral College votes needed to secure the presidency, the race would go to the House of Representatives, which would decide the president according to the votes of the 50 state delegations. The GOP, which controls the House, would control this vote. So, in theory, a principled conservative who could win a few purple states like Virginia, Colorado, Ohio, or Florida could throw the election to Congress and win from there, even if he or she had lower vote totals than Trump and Clinton. This is an insane fantasy, again, because a third-party conservative would steal votes from Trump, not Clinton, so Clinton would win the purple states.
So, wait, if they can’t win, then what’s the point?
And what’s the answer?
OK, yeah, so the point is probably not to win but to try to salvage the conservative/GOP brand from being associated with Donald Trump for the indefinite future. Even Kristol himself has seemed to acknowledge this. “It’s also very important in my view for conservatism and for the longer term future of the country that someone hold up a decent banner for Republicans—conservatives—and a lot of independents to rally behind,” he told MSNBC on Tuesday. “I think that’s the case for anyone running even if you can’t thread the needle—I mean you could—even if the odds are against you threading the needle and winning.” Notice how he corrected himself there when he was about to say the candidate “can’t” win.
OK, so then why don’t they just pick a martyr candidate, then?
As mentioned, they are trying. And failing.
If they could get a candidate, would mounting a noble losing campaign be easy? I mean, losing is easy, right?
That depends on your definition of easy. Getting on the ballot in all 50 states would in and of itself be a chore. Kristol has acknowledged this while expressing confidence that the right candidate could get on every ballot, or nearly every ballot. The problem is that a number of states have upcoming deadlines for getting the necessary number of signatures on a petition to place a candidate’s name on a ballot. Texas’ deadline for getting 79,939 registered voters to sign a petition for an independent bid was this past Monday, in fact. North Carolina’s deadline to get 89,366 signatures is June 9. Most of the rest are in July and August and have much lower barriers to entry.
Are there any loopholes Kristol and co. could exploit? Everyone loves a good loophole!
Indeed. And, yes, there are ways around the Texas and North Carolina restrictions. As Richard Winger, the editor of Ballot Access News, explained to me: The deadline to file as an independent may be passed or looming in certain states, but there are 10 states where it’s “substantially easier” to get a new party on the ballot than to get an independent candidate on the ballot. The deadline for a new party to be created in Texas, for example, is May 22, and only 47,086 signatures are needed, according to Winger. So, theoretically, Bill Kristol could create the Never Trump Real Republicans for America Party, or NTRRAP, and get enough signatures in time to get its candidate on the ballot in Texas and then work from there.
But that would only be 10 states. Can you do the same in all 50? Or would a person named, say, Shmitt Shmomney, run as an independent in some states and under the NTRRAP banner in others?
Shmitt Shmomney could run under the NTRRAP banner in some states and as an independent in others if Shmitt Shmomney so desired. Shmitt could also try to get his new party on the ballot in other states as well.
You said there are “ways” around the ballot access issue, plural. What’s another one?
Even if the Never Trumpers miss their deadlines, Winger believes these early-ballot laws are unconstitutional and susceptible to legal challenges. This is especially true in Texas, which allows independents to get their petitions in by June 23 for offices other than president. “It would be impossible for Texas to say [in court that] an independent presidential candidate petition has to be turned in by May 9, but independent candidate petitions for other offices aren’t due until June 23,” Winger argues. “That is just—there is no logic to that at all. They can’t say they need the time. They just proved they don’t.” Indeed, precedent does seem to be in this hypothetical Never Trump candidate’s favor. “For 100 years the U.S. Supreme Court has been striking down inhibitions on voting rights using the First and 14th amendments,” Winger says.
In the 5–4 ruling Anderson v. Celebrezze, the Supreme Court struck down Ohio’s deadline for John Anderson to get his name on the ballot as an independent presidential candidate in 1980, arguing that the deadline, 75 days prior to the state’s presidential primary, was unconstitutionally early. The court found that such deadlines were unconstitutional because they had a “substantial impact on independent-minded voters,” who would need to know who the major party candidates were and what they stood for before opting in favor of a new candidate. The court also cited historical examples of independent parties that were formed late in presidential cycles as a reason to strike down the deadline. The court never defined how early an unconstitutional early deadline is, but since then five states have had June deadlines struck down in lower courts. So, anti-Trumpians could probably sue their way on to ballots. But first they’d need a candidate!
Is John Anderson interested?
He’s probably not a good fit. Anderson supported Barack Obama in 2008 and reportedly worked to build up the progressive Justice Party in 2012. That party, under the standard bearer Rocky Anderson (no relation), received 43,018 votes, or 0.03 percent of the vote. As for his 1980 run, the Supreme Court ruling wasn’t made until 1983, but, despite missing five filing deadlines, Anderson ended up on the ballot in all 50 states thanks to various lower court rulings.* During that run, Anderson famously received the endorsement of Mike Doonesbury, and was then mocked as the “the Doonesbury candidate” by the wife of Ronald Reagan’s running mate, Barbara Bush. He did manage to receive 6.6 percent of the vote and nearly 6 million votes, though! Reagan won the election.
Was Anderson the most successful modern-day independent candidate?
Not quite. Ross Perot finished with 18.9 percent of the vote and nearly 20 million votes as an independent in 1992 and formed the Reform Party and won 8.4 percent and 8 million votes in 1996.
Oh, yeah! What ever happened to the Reform Party?
It was nearly hijacked by Donald Trump in 2000, successfully hijacked by Pat Buchanan that same year, endorsed Ralph Nader in 2004, and is now kind of a shell of its former self.
Oh, yeah, again! Nader! Wasn’t he a supersuccessful third-party candidate?
If you consider “success” for a progressive candidacy to mean handing the presidency to George W. Bush, then yes, he was super duper successful.
Huh. Back to Texas. If it’s so easy to win these things in court, how come Texas hasn’t been sued yet?
“The only reason the case hasn’t been filed is that you have to have a plaintiff candidate. And this group that we’ve been thinking about, [Kristol’s group], can’t come up with a candidate,” Winger said. “I mean at least John Anderson didn’t have that problem! He was the candidate.”
So, would there even be enough time for a lawsuit?
Winger says yes, again based on the John Anderson example. Anderson filed his lawsuits in May and won them in July and August. Winger also cites George Wallace, who challenged ballot deadlines in 1968 in late July and won. “Courts will expedite a case like this,” Winger says.
Why is it so hard to get on the ballot anyway?
It’s hard because the incumbent parties in power write laws and they want to protect themselves from competition. Legislatures have been doing this for a long, long time. Winger cites the example of a 1935 North Carolina law that demanded an independent candidate get signatures of 25 percent of the electorate. “This has been a struggle for over 100 years,” he says.
Is there another way to get ballot access?
The Never Trump people could just hijack, or if you’re being more generous, “merge with” an existing minor party that already has ballot access.
Why don’t they do this?
Because not many third parties have ballot access for the very reasons we’ve discussed above! And the ones that do might not liked being hijacked.
The Libertarian Party, which had access in 48 states plus Washington, D.C., last time around and expect to be the only minor party with access in all 50 states this time, won’t hold its own nominating contest until Memorial Day. But the party’s nominating process—the nominee needs to win a majority of about 1,000 unbound Libertarian delegates—probably shields it from a takeover. The Libertarians nominated former two-term Gov. Gary Johnson in 2012, and it seems like they might do so again, although Libertarian-leaning Rep. Justin Amash has been making noises like he might try for a last-minute third-party run.
Why don’t the Never Trump people just back a Libertarian candidate?
I mean, they could. And they might. But there are big reasons for some of them not to. In the case of Kristol, he’s a hawkish neocon. In the case of Erickson, he’s a social conservative. Both of these positions are anathema to the Libertarians.
So what are the odds of any of this third-party stuff happening, then? What are we even talking about here?
Bill Kristol told MSNBC on Thursday that there was a “50/50” chance of a “serious” third-party run. “There’s a lot of serious talking going on. There’s polling being done over the next couple nights by both a Republican and a Democrat … which I think will try to show how much opening there is, confirm really the sense that there really is an opening for an independent candidate,” Kristol said. “Serious people are working on making it [happen], and I think there’s a decent chance it will happen.” And his powers of prognostication are legendary, of course. Seriously, though, Winger is probably a more reliable source here. According to Winger, the lawyer representing Kristol’s group, Matthew Sawyer, has been talking to Winger about potential legal challenges. Their last talk was two weeks ago, and they spent that time “commiserating that they can’t find a candidate, therefore they can’t file these lawsuits.” (Winger really, really, really loves minor parties.)
Winger was even blunter earlier in our chat: “Since they’ve been trying so hard to find a candidate and they have failed, I think it’s extremely unlikely that anything’s going to happen. I mean they’ve been searching for more than a month.”
Libertarian Party chairman Nicholas Sarwark was blunter still: “This idea that you’re going to have some sort of quixotic bid from Romney or something as an independent, it’s just—it’s batshit basically.”
Is batshit short for batshit insane?
Yep, you got it.
Correction, May 12, 2016: This post originally misstated that Anderson v. Celebrezze was decided in 1982. It was argued in 1982 and decided in 1983.