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Rand Paul’s constitutional Kentucky conundrum

June 9, 2014 by Scott Bomboy


U.S. Senator Rand Paul is considered a likely 2016 candidate for the Republican presidential nomination, but a Kentucky law poses an interesting question about part of his candidacy.


randpaul400x300By all indications from the Paul camp, if the freshman Senator runs in what could be a crowded GOP field for the White House, he would also run to retain his U.S. Senate seat at the same time – in the same way Joe Biden ran for Vice President and the Senate simultaneously in 2008 from Delaware. Paul Ryan did the same thing from Wisconsin in 2012.


But the laws are different in Kentucky. Under statute 118:405, a person’s name can’t appear twice on the same election ballot. In this case, at least theoretically, Paul would be on a 2016 primary ballot running for Republican senatorial and presidential nominations.


That issue hasn’t gone unnoticed in the political press over the past few months, and Paul’s former chief of staff recently addressed it.


“Federal law governs federal elections, and the Supreme Court has made it clear that states cannot impose additional qualifications beyond those in the Constitution,” Doug Stafford, a senior adviser to Mr. Paul, said in a March statement. “We are not seeking to change the law, but rather to clarify that the Kentucky statute does not apply to federal elections.”


According to multiple reports, Paul’s camp is basing its argument on a 1995 U.S. Supreme Court decision called U.S. Term Limits v. Thornton.


The Supreme Court ruled in that case on an amendment to the Arkansas state constitution that limited terms for House and Senate members elected from that state to serve in the federal Congress. In a 5-4 decision, the majority said that states can’t alter qualifications for the U.S. Congress that are specifically enumerated in the Constitution. Paul’s team interprets the ruling as helping to define the issue of who controls setting the rules for federal elections; in this case, they say, the state of Kentucky wouldn’t be able to block someone from running for a federal office.


Last Thursday, Paul confirmed that thinking to reporters.


“Can you really have equal application of federal law if someone like Paul Ryan or Joe Lieberman can run for two offices but in Kentucky you would be disallowed?” Paul said. “It seems like it might not be equal application of the law to do that. But that means involving a court, and I don’t think we’ve made a decision on that. I think the easier way is to clarify the law.”


The “easier way” for Paul would be to get Kentucky’s legislature to change the state law, to make it clear that he can run for two offices. But the Democrats control Kentucky’s House and they’ve blocked the legal changes proposed by the state’s GOP-controlled Senate.


And a court battle might not be simple for Paul. Recently, Josh Blackman from the South Texas College of Law looked at the Paul conundrum and reached out to two election law experts about the Paul argument and the Court’s 1995 term-limits decision.


Rick Hasen from the University of California-Irvine told Blackman, via Twitter, that it seemed the Kentucky law was permissible under the 1995 U.S. Term Limits decision, and another Supreme Court case called Cook v. Gralike. Derek T. Miller from Pepperdine University School of Law had a similar reaction when asked by Blackman about the issue.


The issue also could become a moot point if the Republicans win Kentucky’s House in 2014, or if Paul decides to not run for President in just the Kentucky presidential primary, while running in the rest of the primaries.


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