Paul Clears Big Hurdle

Senators Paul and Rubio have a problem running for both president and re-election to the Senate in 2016, as Kentucky and Florida election laws complicate running for two federal offices. Since Florida has a March presidential primary and an August regular primary, Rubio could conceivably run early next year for president and keep his options open, as his filing deadline for senator is not until May 6, 2016.

Paul does not have the same luxury, since Kentucky’s May primary is for all offices, and Democrats in the Kentucky State House have made it clear they will not change the law. Paul’s allies in the state GOP though, will likely succeed in triggering a little-known provision of Kentucky election law which allows either state party to simply opt out of the presidential primary in favor of a caucus. And now Sen. McConnell has just announced he supports switching to a caucus to help Paul. This will be voted on at the next state central committee meeting on March 7, where it is considered a certainty, as virtually every current member of that body is either a Paul or McConnell person.

That takes care of the primaries, what of the general election? I would say at this point neither man has a very good shot at the national ticket, so that may be moot. But if one of them did get nominated, I think the Kentucky and Florida laws would be partially overturned in federal court, allowing them to run for two offices.

The reason is the Supreme Court has consistently ruled state ballot laws cannot in any way add to or modify the requirements for federal office in the Constitution. In fact, this is the rare place where “strict constructionism” is the reigning legal doctrine. The last important qualifications case the high court ruled in was U.S. Term Limits, Inc. v. Thornton which broadly held against virtually any limit on ballot access for federal offices. Since the federal Constitution doesn’t prohibit candidates for multiple federal office, that’s probably the last word.

But rather than just relying on my legal prognosticating, brilliant though it is, both the Rubio and Paul camps ought to be encouraging a legal challenge to their state’s election laws. Conceivably a federal court could rule this year, greatly strengthening the credibility of a dual-campaign strategy.

In any event, as a Kentucky Republican, I am very glad we will be going to an early March presidential caucus, when there is still a contest going on. We can do big money straw polls and Lincoln dinners with the best of them. Why should Iowa have all the fun?

Frank Friday is an attorney in Louisville, KY.

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