Kentucky Democrats maintained control of the state House after the Nov. 4 midterms. That means the road to the White House for Sen. Rand Paul, R-Ky., remains uncertain — his path forward momentarily blocked by an obscure statute in the Bluegrass State.
In Kentucky, a candidate’s name cannot appear on the ballot more than once in the same election. If this issue goes unresolved, Paul will be forced to choose in 2016 between running for the U.S. Senate and the White House. He had hoped that Republicans would take over the state House and help him by changing the law.
The state’s Republican-controlled Senate earlier this year passed a measure that would amend the statute, allowing Paul to run for both the Senate and the White House. This is not unprecedented: Texas in 1959 passed a similar measure that allowed Lyndon B. Johnson to make a dual run in 1960.
But the Democrat-controlled House has no plans to pass the Senate’s bill, a spokesman for Greg Stumbo, the state’s Democratic House Speaker, told the Washington Examiner.
Stumbo believes that “if a person can’t decide which office to run for, that person may not be fit for either one,” spokesman Brian Wilkerson said.
The House does not plan to pass the measure this session and “it likely will not happen in the next one,” Wilkerson added. So it’s almost guaranteed Kentucky’s state legislature won’t address the statute issue before the 2016 presidential election.
So that’s one option down for Paul, who finds himself with few others.
Paul can seek aid from Kentucky Secretary of State Alison Lundergan Grimes, who has the power to waive the limitations the statute places on Kentuckians running for federal office.
A Grimes spokeswoman said earlier this year that if Paul’s team filed to run for two federal offices simultaneously, the Kentucky Secretary of State would “seek guidance from the attorney general and or the courts.”
However, the Secretary of State’s spokeswoman said that in March, well before Grimes’ brutal midterm defeat at the hands of Sen. Mitch McConnell, R-Ky. — a close Paul ally.
The other option available to Paul is that he can challenge the statute as unconstitutional, arguing in court that it puts unfair limitations on an American citizen seeking election to higher office.
“I do think he has a constitutional argument,” University of Kentucky law professor and election law expert Joshua Douglas told the Washington Examiner. Citing the Supreme Court case U.S. Term Limits v. Thornton, he added that he thought Paul’s argument would be “plausible, but not winning.”
“The U.S. Supreme Court…held that states could not impose additional qualifications for a candidate beyond those that are listed in the U.S. Constitution,” Douglas explained.
The U.S. Constitution requires that U.S. Senate candidates be at least 30-years-old upon inauguration and that presidents be 35 years old. It also requires that members of Congress be citizens for a certain period, and that presidents be citizens from birth.
Paul’s team is flirting also with the idea of beating his ballot problem by getting the Kentucky GOP to switch to a caucus system instead of a primary system.
“[T]he theory behind that is he would … either be selected by caucus to be the candidate for president, and then by the time the presidential ballot was printed, he would know that that was what he’s running for, or he wouldn’t be selected and he could leave his name on the ballot,” Scott Bauries, a state constitutional law expert at the University of Kentucky, told the Washington Examiner.
This would allow Paul to get around the issue without having to rely on Kentucky Democrats or winning in court. But the deadline for filing in Kentucky is on the last Tuesday in January 2016. As of publication, no GOP presidential primary is slated to for earlier than Feb. 1, a spokesman for the Republican Party told the Washington Examiner.
If any of these options fail, then Paul’s path to the White House becomes even riskier and unlikely for him and the GOP.
The Kentucky senator can’t opt for a write-in campaign because, again, his name can’t appear more than once on a ballot in the Bluegrass State.
“Kentucky law says that write-in votes will count only for registered write-in candidates,” Douglas told the Washington Examiner. “To appear as a write-in candidate, the person cannot appear as a candidate for another office. Also, a person can only register as a write-in candidate for one office. So that option won’t work for him.”
Paul can drop his Senate seat and seek what is likely a longshot White House bid. This is obviously risky as his chances of taking the White House are uncertain, whereas the Kentucky Senate seat is probably his to keep if he wants it.
The other option is that Paul runs for both the Senate and the Oval Office with the agreement that he cannot run as president in Kentucky — automatically forfeiting the state’s eight electoral votes.
The only realistic options available to Paul, Douglas said, “is that he makes the constitutional argument or he runs in only 49 states.”
“With current Kentucky law, the only way that Paul can run for President in all 50 states is that he give up his senate seat,” he added. “He has got to find a way to either get that Kentucky law overturned by the legislature or to have it found unconstitutional.”
Paul’s Senate colleague, presumptive Majority Leader Mitch McConnell, likely won’t want the senator risking his safe seat in a year when the GOP will be defending a tough map, nor would the national party be thrilled with the idea of forfeiting eight critical electoral votes. Another consideration: At this point, it is unclear who will be governor of Kentucky in 2016. The election is a year from now, and the winner would be able to appoint someone to Paul’s Senate seat in the event that he did become president later.
This is likely why the Kentucky GOP is seriously considering the idea moving from the state’s presidential primary to a caucus instead, as noted by Politico — although again, this wouldn’t completely solve Paul’s problem, because all the other primaries and caucuses are scheduled later.
Senator Paul, for his part, has been coy, quietly weighing his options as 2016 fast approaches.
“Rand is 100 percent committed to running for re-election for the Senate seat and he will make an announcement very soon,” Paul spokesman Dan Bayens said.
This article was originally published Nov. 7 at 7:11 p.m.
