Sore Loser Laws and Democratic Contestation

Michael S. Kang, Sore Loser Laws and Democratic Contestation, 99 Geo. L.J. 1013 (2011).

Abstract:  Courts have spent a decade striking down party reforms aimed at reducing the ideological polarization of the two major political parties, but this Article proposes a more promising and novel approach from the supply side of politics – the repeal of sore loser laws. The Article is the first to analyze sore loser laws, a powerful but virtually unnoticed set of laws in almost every state that restrict losing candidates from a party primary from running in the subsequent general election as a minor party nominee or independent candidate. The Article argues that sore loser laws not only entrench the major parties against outside challenges, but even more importantly, they disrupt the fluid process of conflict and compromise within the major parties by removing the leverage of moderate dissenters to threaten splitting the party coalition in the general election through a sore loser candidacy. In so doing, the Article critically shifts the normative focus, from the usual preoccupation with interparty competition, to intraparty competition. The Article analyzes the value of democratic contestation produced by the political rivalry within the fundamental institutions of American democracy, its major political parties.

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