Fourth Circuit rejects First Amendment challenge to SC's "sore loser" statute

by Kirsten E. Small

One of the things I love about being a lawyer is that I learn something new every day. Yesterday, I learned two things: (1) A candidate who appears on the ballot for more than one party (e.g., the Green Party and the Constitution Party) is a fusion candidate, and (2) a "sore loser" law prohibits a defeated primary candidate from appearing on the general election ballot for another party. South Carolina is one of only eight states that permit electoral fusion. All but three states prohibit failed primary candidates from appearing on general election ballots.

The Fourth Circuit yesterday rejected a constitutional challenge to South Carolina's sore loser law, S.C. Code Ann. § 7-11-10, by the South Carolina Green Party. SC Green Party v. SC State Election Comm'n, No. 09-1915 (July 20, 2010). In 2008, Eugene Platt sought the nomination for SC House seat 115 from the Democratic Party, the Green Party, and the Working Families Party. After the Green and Working Families Parties had selected Platt as their nominee for the seat, Platt was defeated in the Democratic Party primary election. As a result, the sore loser law prohibited Platt from appearing on the ballot for the Green and Working Families Parties.

The Green Party sued, claiming that Platt's removal from the ballot violated its First Amendment right to freedom of association.

The Fourth Circuit rejected this challenge, holding first that the burden on the Party's associational rights was only "moderate" (as opposed to "severe") because, while the Party was deprived of its ability to nominate a particular candidate, the SC sore loser law does not permit members of one political party to select the candidate of a rival party (as was the case with the "blanket primary" law struck down by the U.S. Supreme Court in California Democratic Party v. Jones, 530 U.S. 567 (2000)). Second, the court held that SC's sore loser statute is a reasonable, nondiscriminatory restriction that is justified by important regulatory interests. These interests, the court said, are in minimizing factionalism, avoiding voter confusion, and ensuring orderly, fair, and efficient procedures for the election of public officials.

One interesting procedural note: Judge Barbara Keenan, who has been on the court for all of four months, was the lead judge on the panel (the other two judges were Senior Judge Clyde Hamilton and District Judge Samuel Wilson).