Charles F. Bass, a Republican from New Hampshire, was a member of the U.S. House of Representatives from 1995 to 2007 and 2011 to 2013.
Addressing hundreds of supporters while campaigning in Keene, N.H., last month, Sen. Bernie Sanders (I-Vt.) declared: “Let me tell you a secret: We’re going to win New Hampshire!”
He has some reason to feel confident, given that a new poll put him just 10 percentage points behind front-runner Hillary Clinton in the Democratic presidential primary in the Granite State. But before he pops the champagne corks, I have a secret of my own to share with the senator: He may not qualify for the New Hampshire ballot as a Democrat.
To understand why, let’s step back a bit.
The U.S. Constitution gives Congress the power to set the time of federal elections but not the manner in which political parties choose their nominees. That process is left to the states. The New Hampshire Constitution empowers the legislature to determine the qualifications for those being elected to office (something in which I was closely involved when I chaired the committee with jurisdiction over state election law while a member of the state Senate). Pursuant to that power, state law makes clear that candidates must be registered members of the party on whose ballot line they wish to appear.
This is a problem for Sanders, who is not a registered Democrat. One might ask why the good senator can’t simply change his registration in his home state from socialist or independent to Democrat. The answer is that Vermont doesn’t have a party registration system, so he can’t. Similar issues arose with the candidacies of Al Gore and both George H.W. and George W. Bush because, like Vermont, Tennessee and Texas do not register voters by party. But Gore and the Bushes qualified for New Hampshire’s primary ballots because they could show that they had previously appeared on ballots as a Democrat and Republicans, respectively. In his last election, Sanders likewise won the Democratic primary in Vermont, but he declined the nomination and asked that his name not appear on the general election ballot as a Democrat.
In short, Sanders is not a Democrat, has not been elected as a Democrat, has never served as a Democrat and cannot plausibly claim, at least in New Hampshire, to be a Democrat.
Once Sanders appears at the New Hampshire secretary of state’s office to file to compete in the Democratic primary, it is quite possible that someone will challenge his declaration of candidacy, and it’s likely that the state Ballot Law Commission would agree with the challenge. The commission’s decisions are final, although Sanders might be able to pursue an appeal in either state or federal court. Interestingly, the Democratic establishment, including the Clinton campaign, might not want to see such a challenge succeed, since it could force Sanders to run as an independent — which in turn could split the left and throw the state’s electoral votes to the Republican nominee in November.
Don’t get me wrong: I would love to see Sanders on the Democratic ballot. He is passionate and articulate about his views, and he would give Democrats a real choice. But being a Republican or a Democrat in New Hampshire is a commitment, not a convenience, and Sanders has simply not been willing to make that commitment.
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