Sen. Rand Paul’s biggest obstacle to the White House might not be another Republican primary opponent or even Hillary Clinton, but rather Kentucky state law forcing him to make a choice.
On its face, Kentucky law prevents someone from appearing on the ballot more than once, and Paul — widely considered a presidential contender — is up for re-election to the Senate in 2016. Will he have to choose one?
Paul and Kentucky Republicans say no — that that law only applies to state offices and not federal offices. Just in case though, Kentucky Senate Majority Leader Damon Thayer introduced a bill to clarify the law to reflect that point.
“I sponsored the bill at the request of Senator Rand Paul, but it will affect any future member of the Kentucky delegation considering running for president or vice president,” Thayer told TheBlaze.
He said he will be amending the bill further in committee on Wednesday.
“I believe he can run for both offices right now,” Thayer said. “This is just a clarification. In committee tomorrow, we’re going to clarify it further to say it only pertains to running for president and vice president, not a state legislator running for Congress.”
Paul’s staff concurred that the freshman senator is eligible to run for the Senate and for president now, but wanted clarification.
“We are not seeking to change the law, but rather to clarify that the Kentucky statute does not apply to federal elections,” Paul senior adviser Doug Stafford told TheBlaze in an email. “We thank Sen. Thayer for taking this step in clarifying this issue.”
The state legislature is mulling the bill after Paul pulled off a decisive victory Saturday for the second year in a row at the Conservative Political Action Conference, an annual gathering of conservative and Republican activists from across the country.
Presidential candidates hedging their bets is by no means unprecedented: Vice President Joe Biden was re-elected as a Delaware senator in 2008 and Rep. Paul Ryan was re-elected to the House in Wisconsin, despite losing on the Republican ticket as Mitt Romney’s running mate.
But state laws differ.
A spokeswoman for Kentucky Secretary of State Alison Lundergan Grimes referred TheBlaze to Kentucky Revised Statute 118.405, which states: “No candidate’s name shall appear on any voting machine or absentee ballot more than once, except that a candidate’s name may appear twice if he is a candidate for a primary or a regular election and also a candidate to fill a vacancy in the same office required to be filled at a special election, when the special election to fill a vacancy is scheduled for the regular election day.”
But that’s less than clear, spokeswoman Lynn Zellen said.
“The Secretary of State’s office does not interpret law,” she said. “Under current law, if a candidate filed to run for two offices, we anticipate that we would seek guidance from the attorney general or the courts.”
Lundergan Grimes, incidentally, is a Democrat running to replace Senate Majority Leader Mitch McConnell (R-Ky.)
While the letter of the law make no distinction between state and federal offices, Paul’s staff referred to the 1995 Supreme Court case of U.S. Term Limits, Inc. vs. Thornton, and among other things determined states cannot set the parameters of federal candidates, saying, “If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.”
“Federal law governs federal elections, and the Supreme Court has made it clear that states cannot impose additional qualifications beyond those in the Constitution,” Stafford said.
The bill is likely to be partisan. Even if it makes it through a Republican-controlled state Senate, it still has to go through a Democrat-controlled state House and a Democratic governor.
House Speaker Greg Stumbo expressed cynicism.
“If he can’t make up his mind on that, how can he care for the people’s business?” Stumbo told the Associated Press.
There is a long history of candidates appearing on the ballot twice, after several states adopted what was nicknamed an “LBJ law.”
The state of Texas once expressly prohibited a candidate from appearing on the ballot twice. That didn’t stop U.S. House Speaker John Nance Garner, the running mate for Democratic nominee and New York Gov. Franklin Roosevelt in 1932, from also campaigning for the House. The loophole was that before 1945, presidential tickets in the state only listed parties – so his name was on the ballot just once, according to George Mason University’s History News Network.
In 1960, Lyndon B. Johnson, the U.S. Senate majority leader, was up for re-election to the Senate in Texas. When he fell short of winning the Democratic presidential nomination, nominee and Massachusetts Sen. John F. Kennedy tapped him for the ticket.
In this case, the Texas legislature changed the law to allow Johnson to be on the state’s ballot twice. Other states followed.
In 1988, another Texas Democrat, Sen. Lloyd Bentson used the law to run on a ticket with Massachusetts Gov. Michael Dukakis, a race he lost, losing badly for vice president but getting re-elected to the Senate. In 2000, Connecticut’s Democratic Sen. Joe Lieberman won re-election to the Senate, but lost his bid for vice president on a ticket with Al Gore.
And in 2008, Biden was re-elected to the Senate in Delaware and won his national race. Ryan was not so lucky, getting re-elected to the House seat, but losing with Romney in 2012.
The potential difference for Paul is that previously, it was vice presidential candidate that double-dipped. In this case, Paul likely intends to be the 2012 Republican nominee for president.