For Republican leaders, perhaps the biggest nightmare scenario in the presidential race is not Donald Trump winning their party’s nomination, but him losing, and then running in the general election—and siphoning off Republican votes—as an independent. To prevent that in the Carolinas, GOP leaders could look to election laws known as “sore loser” provisions.
Almost every state has some form of the provision, to deter candidates from running in a general election after losing in a primary, as Donald Trump has hinted he might.
Richard Pildes, a constitutional law professor at New York University says sore loser provisions are legal. In fact, the Supreme Court has upheld them.
“Many academics have been critical about that decision, on the view that political competition is furthered by allowing the voters in the general election to choose the candidate they most prefer,” says Pidles. “But as a matter of existing constitutional law, these provisions are constitutional.”
Both North and South Carolina have pretty strict sore loser provisions, but they wouldn’t necessarily doom a Trump run, because presidential primaries aren’t technically considered primaries. Voters don’t actually cast ballots for their candidate. Instead, they vote for delegates to go to the party’s convention and cast votes on their behalf. North Carolina has another sore loser provision that applies to presidential primaries, but it has a problem, says Josh Lawson, the general counsel for the state Board of Elections.
“We can’t judge how this specific statute would apply,” says Lawson. “The last time the court’s construed this statute was in 1980. And they called our particular statute ‘cryptic.’ Their term, not mine, but it’s there.”
Still, Lawson points out that the general principle across North Carolina election law is “no sore losers.”
In South Carolina, that’s not the case. The state Elections Commission says presidential candidates are entirely exempt from sore loser provisions.
So, the state GOP has included a “pledge” all candidates must sign to run in the primary—where they agree to support the eventual Republican nominee. But, without the force of the state’s sore loser provisions behind it, that pledge might have about as much heft as any other political promise.