Kentucky Republicans are poised to grant Sen. Rand Paul’s (R-KY) wish to hold a one-time party caucus instead of the usual Republican presidential primary, allowing the likely presidential candidate to circumvent a state law barring candidates from appearing on the ballot multiple times in the same election.
On Saturday the Kentucky Republican Party’s executive committee unanimously endorsed Paul’s proposal to hold the caucus. It’s not official until the proposal is formally approved by the Republican central committee in August, but it appears likely Paul will be able to run for the GOP presidential nomination and his Senate seat at the same time. Still, that doesn’t solve the problem for Paul on a general election ballot.
The caucus move essentially “punts” the double-name ballot problem down the road, University of Kentucky political science professor Josh Douglas told TPM. Paul’s ballot problem doesn’t go away if he were to get the presidential nomination so Republicans, Douglas said, will have to make a choice.
“At that point, they’ll have to do one of two things. They’ll have to challenge the law in court or they’ll have to drop out of the Senate race and just focus on the presidential race,” Douglas said.
The next step for Paul is to get the official approval of the Kentucky Republican Party’s central committee when it releases a report on the caucus plan at its Aug. 22 meeting. Given the unanimous approval of the executive committee, the central committee is very likely to endorse the plan. By holding a party caucus instead of presidential primary, Rand would only be on the primary election ballot as the party’s Senate nominee.
Paul had tried a few times to fight the law, but Democrats in the Democrat-controlled Kentucky House of Representatives were able to stop him. The fact that Paul has opted for the caucus suggests that Paul’s legal team won’t plan to challenge the state law later on, Douglas said.
“And I also think the legal arguments are weak,” Douglas said of a possible legal battle over the law. “I mean it could be a close case but I think he loses. So I think their plan is to move forward with a caucus which really doesn’t require the Democrats or the state to do anything, and then his hope is that he gets the nomination and then he’ll drop out of the Senate race, and if he doesn’t get the nomination he’ll still be on the ballot in the Senate race.”
Paul himself has argued that the one-time caucus creates a more fair playing field for him.
“I think there are two reasons to be for the caucus —one is fairness, and the other is relevance,” Paul said after the committee gave its initial approval to the caucus system, according to the Lexington Herald-Leader. “Fairness is that I just want to be treated like many other candidates around the country who have not been restricted.”
Paul pointed to Rep. Paul Ryan (R-WI), who was on the ballot twice in 2012, as a vice presidential candidate and also a candidate for re-election in his House seat.
“A lot of people have done it historically,” Paul said. “I don’t know that there’s really a problem. I don’t know that anybody has ever been punished at the ballot box for being an elected official who ran for president.”
Scott White, a Kentucky attorney who’s represented a number of top Kentucky Democratic officials, including Secretary of State Alison Lundergan Grimes (D), bets that if Paul did win the nomination, Democrats would go after him through his Senate seat.
“He obviously wouldn’t file in the [presidential] primary but he would file in the primary for Senate, then I would think Kentucky or federal courts would likely be presented with the issue, ‘does the caucus road equate to being a candidate so that you’re disqualified from the Senate race?'” White told TPM. “That would be the attack that I would see. And it’s kind of set up. They’ve almost conceded, to me, that it’s a legitimate issue, otherwise why would he go through all these gyrations and essentially tell the Republicans that he’s going to fund the caucus? If he were confident that he could do both in the primary, he’d just do it.”
Both Republican and Democratic experts expect Democrats to pose some kind of legal objection to Paul running on the ballot twice. But unlike White, who argues there’s plenty of good arguments against Paul’s caucus move, Eric Lycan, another Kentucky attorney who’s advised Senate Majority Leader Mitch McConnell (R-KY) among others, expects Paul could survive whatever challenge came his way.
Lycan, like Paul, cited Ryan along with Vice President Joe Biden and former President Lyndon Johnson as examples of candidates who were allowed to run for re-election and the presidency. He also cited the 1995 Supreme Court case U.S. Term Limits, Inc. v. Thornton where the high court found that states can’t bring on qualifications for possible members of Congress that are more strict than the Constitution. That’s what Kentucky’s law prohibiting a candidate from appearing on the ballot does, Lycan said.
“Kentucky’s statute prohibiting a candidate from appearing on the ballot twice does exactly that – adds a qualification that one not also be running for President. While Courts had upheld laws that require a candidate to resign from office to run for a second state office, they have not done so in connection with federal office, and under Thornton are unlikely to do so,” Lycan told TPM.
Lycan added that he expected Kentucky courts to rule in Paul’s favor.
“Additionally, courts (including specifically Kentucky courts) will liberally construe election statutes in order to ensure that voters are able to vote for the candidate of their choice,” Lycan said. “In my opinion a court would find that Kentucky’s prohibition from appearing on the ballot twice adds an unconstitutional additional qualification to run for the office, and would deny any attempt by Democrats to disenfranchise Kentucky voters who seek to again cast their for vote Senator Paul.”
Either way, Democrats are interested in playing spoiler for Paul where they can. The Democratic National Committee refused to comment on possible legal tactics against Paul if he decided to run for president but did say his caucus move was hypocritical.
Shortly after the Republican executive committee gave Paul a green light for the one-time caucus meeting, Grimes, the top election official in the state, warned that the move “could create potential chaos in our electoral process and severely undermine the integrity of the commonwealth’s elections.”
Grimes added that she would “continue to monitor the situation.” It’s unclear what Grimes could do on her own even as the top election official in the state, given that the Republican Party has control over how presidential delegates are selected. But her quick response shows how eager Democrats are to either stop Paul or at least give him a major headache along the way.
“Rand Paul wants to have his cake and eat it too,” DNC spokesman Ian Sams told TPM. “The hypocrisy is rich – Paul rails against career politicians and wants a constitutional amendment on term limits while he is actively trying to skirt or change Kentucky law to allow him to run for two offices simultaneously. You can’t make it up. Rand Paul thinks the rules don’t apply to Rand Paul – on this and many other issues.”
