Democrat Who Won His Primary Almost Schemed His Way Off the Ballot

South Carolina Democrat brought state's 'sore loser' law into play with attempt to win third party nominations

James Smith
James Smith /
August 7, 2018

An attempt by South Carolina Democrat James Smith to get his name listed on the ballot as the gubernatorial candidate for more than one party has opened the door to him being removed from the ballot entirely.

Smith, a Democratic state legislator who won his party's primary handily in June, hoped to boost his chances of unseating incumbent Republican governor Henry McMaster by securing the nominations for the Green, Working Families, and Libertarian parties.

South Carolina law allows a candidate's name to appear on the ballot numerous times, with the votes obtained in each different slot going toward the same total. Smith jumped at the opportunity because none of the three parties had anybody else running for the nomination.

But South Carolina also has what's known as a "sore loser" law, which could now unravel Smith's chances in November.

The state's sore loser statute says that "no person who was defeated as a candidate for nomination to an office in a party primary or party convention shall have his name placed on the ballot for the ensuing general or special election."

Smith, having realized he opened the door to disaster, moved to withdraw his candidacy in the parties, but the Libertarian Party went ahead and voted against having him as their nominee and made clear it's willing to press the issue of whether Smith should be decertified with the state's Election Commission.

Sore loser laws are generally intended to keep candidates who lose their primaries from getting on the ballot through other parties. A similar law in West Virginia was just used to block Don Blankenship, who had already lost in the Republican primary, to run for Senate as a member of the Constitution Party.

There is, however, precedent in South Carolina for the sore loser law being applied to candidates who had already secured nominations.

In 2008, a candidate by the name of Eugene Platt had already won nominations from the Green Party and Working Families Party when he was notified by the Election Commission that he would not appear on the ballot because he lost the Democratic Party's primary election.

Platt and the Green Party filed a lawsuit against the Election Commission, claiming the sore loser statute as applied to the situation was unconstitutional because Platt had already secured the nomination. They argued that the statute gave the Democratic Party the power to "veto" the Green Party's candidate. The commission defended the statute, putting blame on Platt for his decision to run for a second nomination after already securing a spot on the ballot.

"Platt's decision to run in the Democratic primary, rather than any interference by Democratic voters, placed him at risk of disqualification as the Green Party nominee," the defendants argued.

The constitutionality of the sore loser statute was affirmed by the U.S. Court of Appeals, which said the statute was properly applied to Platt.

The Election Commission would likely be reluctant to use the statute to boot the winner of a major party's primary off the ballot, but a legal challenge would force a closer look at whether the law was being fairly applied.

Smith's saving grace could be that the state's Libertarian Party doesn't have the resources to file that legal challenge.

"It would be a matter of whether we sell enough T-shirts to pay for a lawsuit," Libertarian Party chairman Stewart Flood joked to The State, which has led coverage on the issue.

Republicans have said they don't plan to mount a legal challenge Smith's spot on the ballot, but do plan to use the mishap to question his competency.

"While this may not be the weirdest thing I’ve seen a South Carolina campaign do it is quite possibly the stupidest," wrote Tim Pearson, a longtime South Carolina operative working on the McMaster campaign.

McMaster's campaign spokesman said Smith's attempt to "game the electoral system with a half-baked ballot scheme ... raises serious questions about his competency that we plan on highlighting."

Smith has indicated no fear of losing his spot on the ballot, arguing that he withdrew his application to be a nominee for the Libertarian Party before it held its vote. He also says his attempt to obtain nominations from other parties was intended to send the message that "every voter deserved to be heard," not because he thought having his name appear four times on the ballot would help his chances of winning.

McMaster, who was promoted from lieutenant governor after Nikki Haley joined the Trump administration as U.S. ambassador to the United Nations, is viewed as the favorite in the race.

Published under: 2018 Election