Former coal executive, convicted criminal and self-described “Trumpier-than-Trump” West Virginia candidate Don Blankenship wants to remain in his U.S. Senate race after losing the Republican primary.

Right now, however, West Virginia statutes dubbed “sore loser” laws appear to make it impossible for Blankenship to take the Constitution Party line as he wants to. While there are plenty of reasons to disagree with Blankenship’s positions, he ought to be allowed to stay in the race and the laws that forbid people who have lost a primary from running should face repeal.

Some background first: West Virginia, like 46 other states, makes it impossible for someone who has lost a party primary to appear on the ballot in the general election as an independent or minor party candidate. These sore-loser laws mean, by and large, that party primary voters, not the party’s supporters as a whole, pick the candidates that appear on general election ballots.

Since passionate supporters who have the most extreme beliefs tend to vote in primaries, this means candidates who hew to more polarizing, pandering positions frequently fair better in these early contests.

Even worse, the system is very prone to manipulation. In 2012, for example, Missouri Democrat Claire McCaskill, ran ads calling Todd Akin a “true conservative,” designed to boost the chances of her very conservative (and poorly spoken) Republican opponent. The ads helped Akin win the primary and, once he did, McCaskill’s team launched effective attacks against Akin, making hay over his misogynistic comment about “legitimate rape.”

The outcome? A state that was trending Republican re-elected a Democrat handily. This probably wouldn’t have happened without sore-loser laws. The general result of plays like these is that both parties’ Congressional delegations are more extreme than their median voter and — unsurprisingly — held in low esteem by the public. Current support for Democrats in Congress is only a little over a third whereas Republicans barely cling to 20 percent support.

The people who have won general elections after losing a primary give a strong indication that a repeal of sore loser laws would give America a better, less polarized Congress.

Almost universally respected centrist democrat Joseph Lieberman managed to remain in the Senate in 2008 after losing a Democratic primary to a far-left candidate only because his home state, Connecticut, is one of the four without sore-loser policies.

Likewise, sitting Sen. Lisa Murkowski (R-Alaska) won as a write-in candidate after losing her primary to an even more conservative senator. But this was possible only because her sky-high name recognition and Alaska’s very small population made a write-in campaign feasible.

Both Murkowski and Lieberman ranked among the most thoughtful and consistently bipartisan members of the body. The academic research bears this out: a study led by the University of Wisconsin’s Barry Burden showed that sore loser laws account for about 10 percent all ideological division in Congress.

For those who think that a repeal of sore-loser laws would cause chaos on the ballot or result in the election of people with questionable pasts like Blankenship, there’s little evidence this would happen. Candidates who can’t win a primary will rarely be able to attract the money or support to win a general.

And, of course, they’ll have the huge disadvantage of having to re-create the get-out-the-vote infrastructure that parties provide to their candidates. Most candidates who run in a general election after losing a primary flame out pretty quickly.

For example, when New York’s Betsy McCaughey (who was elected lieutenant governor as a Republican) ran in and lost that state’s Democratic primary and then entered the general election under the banner of the Liberal Party (New York has no sore loser laws), she received a mere 1.7 percent of the vote. And this happened despite universal name recognition and a strong initial infusion of campaign cash from a wealthy husband.

Blankenship, who finished third in a low-turnout Republican primary, is much more likely to end up like McCaughey than Lieberman or Murkowski. But there’s no doubt that he speaks for a portion of West Virginians.

Even if Blankenship isn’t the type of person most would like to see in the Senate, he deserves the same chance to run as any other citizen. The sore-loser laws he opposes are, indeed, unjust.


Image credit: 3dfoto

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