KEY POINTS FROM THIS ARTICLE

— Although he lost in West Virginia’s Republican primary for U.S. Senate, Don Blankenship (R) is actively seeking to run in the general election as the Constitution Party’s nominee. His attempt to run in November will likely involve a legal challenge to “sore loser” election rules that prevent a losing primary candidate from running in the general election. Most states have such laws today.

— Blankenship’s primary vote was more concentrated in the southern and central parts of the Mountain State, particularly the southern congressional district, WV-3. Blankenship’s best district in the GOP primary also happened to be Sen. Joe Manchin’s (D) best district in his 2010 and 2012 Senate contests, and the district also was Trump’s best in his 2016 presidential victory. If the race between Manchin and state Attorney General Patrick Morrisey (R) is close and Blankenship does indeed run in the general election, the former coal baron could affect the outcome.

— If Blankenship runs as the Constitution Party’s nominee or as a write-in candidate, he will join a short list of candidates who lost their primary contests but then ran in the general election. In all, 39 Senate elections have featured candidates who won at least 1% in a major-party primary and then won at least 1% in the general election as a third-party, independent, or write-in candidate. In at least four cases, those “never say die” candidates may have influenced which party won a Senate race, and two of them won: Sen. Lisa Murkowski (R-AK) in 2010 and now-former Sen. Joe Lieberman (D-CT) in 2006.

West Virginia: Wild and wonderful political machinations

In most instances, losing a party primary signals the end of a candidate’s run for office. However, in West Virginia’s 2018 U.S. Senate contest, Republican primary loser Don Blankenship wants to join a select list of candidates who lost their primary bids in a Senate race but ran in the general election regardless. In a few cases, these candidates notably influenced the outcomes of their respective Senate elections.

On May 8, Blankenship finished third in the GOP primary for the Mountain State’s Senate seat, seemingly ending his bid for a place in Congress’ upper chamber. Blankenship won 20.0% of the primary vote, trailing state Attorney General Patrick Morrisey (34.9%) and Rep. Evan Jenkins (29.2%). Morrisey advanced to the general election, where he will face Sen. Joe Manchin (D-WV), one of the most endangered Democratic Senate incumbents in the 2018 cycle (the Crystal Ball currently rates the West Virginia race as a Toss-up).

Yet Blankenship announced on May 21 that he would attempt to run in the general election under the banner of the Constitution Party. The conservative minor party occasionally nominates candidates who cause a splash — for example, former Rep. Tom Tancredo (R, CO-6) finished second in the 2010 Colorado gubernatorial contest as the Constitution nominee — but never win statewide contests (or most other elections, too). A possible third-party bid by Blankenship obviously worries Republican leaders because it might siphon some conservative votes away from Morrisey in an election that could be very close. On June 6, Blankenship began a petition drive to qualify for the November ballot; West Virginia’s rules require him to collect around 4,500 valid signatures by Aug. 1 to mount his third-party bid.

However, it remains to be seen if Blankenship will qualify for the general election ballot. Like most states, West Virginia’s election code has statutory elements that either expressly or effectively prevent candidates who lost a party primary from running as the nominee of another party or as an independent. According to a 2011 paper by Michael Kang of the Emory University School of Law, 39 out of 50 states have either: a “sore loser” law that specifically prohibits losing primary candidates from running in the general election; or a ban on cross-filing as a candidate of multiple parties in a primary, which prevents a candidate from running as a third-party or independent candidate after losing a party primary (at the time of Kang’s paper, West Virginia’s election law fell into the latter category). Five other states have partial prohibitions on cross-filing that can prevent candidates from running in general elections after losing primaries (Vermont falls in this category though there have been recent examples of losing primary candidates running in the general). Three states (California, Louisiana, and Washington) operate nonpartisan primaries that differentiate them from the rest of the country (Kang’s paper predates California’s switch to a top-two primary system). Lastly, three states (Connecticut, Iowa, and New York) have no sore loser laws or bans on cross-filing with different parties that specifically bar a candidate from running in the general election after losing a party primary.

Blankenship, a former coal executive who served time in jail because of his role in the 2010 Upper Big Branch Mine disaster, promises a legal challenge to West Virginia’s election laws in order to qualify for the November ballot. As mentioned above, West Virginia’s pre-2018 rules effectively prevented a “sore loser” run, but earlier this year the state legislature passed a “sore loser” law that specifically prohibits such a bid. While it is unclear if the legislation’s authors gave thought to Blankenship while crafting the legislation, the new law prohibits losing primary candidates from changing their party registration to a minor party or unaffiliated in order to become a general election candidate via the later filing deadline for third-party and independent office-seekers. Complicating matters, however, is the fact this new law did not go into effect until June 5, about a month after the West Virginia primary. The legal situation is murky, but it is possible that Blankenship could make the general election ballot as the Constitution Party nominee. Otherwise, he definitely has the wherewithal (read: money) to mount a credible write-in bid. Blankenship is very unlikely to win if he is a candidate — recognized or write-in — but he has made it clear that his disdain for the GOP establishment, especially Senate Majority Leader Mitch McConnell (R-KY), could provide him with sufficient motivation to carry out his threat to run.

So far, only two nonpartisan polls of the Mountain State race have included Blankenship as a third-party candidate (though there have been few horserace polls in West Virginia or other competitive Senate contests). A May 22 Gravis survey showed Manchin ahead of Morrisey 53%-40% in a head-to-head matchup. When the pollster included Blankenship, it did not find a notable difference in the Manchin-Morrisey margin, finding the Democratic incumbent up 51%-39% and Blankenship at 5%. A Monmouth poll released on Wednesday found Manchin ahead of Morrisey 49%-42% in the head-to-head question. Manchin’s margin improved slightly to 48%-39% when Monmouth included Blankenship, who took 4%. While the conventional wisdom is that Blankenship would take more from Morrisey, these two polls do not prove that conclusively.

If the Manchin-Morrisey matchup is close and Blankenship does indeed run in the general election, the former coal baron could affect the outcome. Blankenship’s vote was more concentrated in the southern and central parts of the Mountain State, particularly the southern congressional district, WV-3. Map 1 shows his performance by county with the state’s three congressional districts outlined in black. While Blankenship won 20.0% statewide, he did better in WV-3 than elsewhere, garnering about 22% of the vote there and finishing ahead of Morrisey, the overall winner. As some observers predicted in the lead-up to the primary, Jenkins may have been hurt by the large number of Democratic registrants in WV-3, his home district, who might have voted for President Donald Trump in 2016 but were not eligible to cast ballots in a Republican primary (Democrats maintain a voter registration advantage statewide even though Republicans have come to dominate the state at the ballot box). WV-3 was Trump’s best district in his second-best state: he won the Mountain State 67.9% to 26.2% over Hillary Clinton and carried WV-3 by 72.5% to 23.3%, a 51.1-point margin.

Map 1: Blankenship percentage by county in the 2018 Republican primary for U.S. Senate

Note: Current congressional district lines outlined on map

Source: Official results from West Virginia Secretary of State

Blankenship’s relative strength in the south, at least compared to other parts of the Mountain State, is important because that area has also been Manchin’s highest-performing region in his two Senate wins in 2010 and 2012 against John Raese (R). Maps 2 and 3 show Manchin’s margin in the state’s three congressional districts in the 2010 and 2012 races. West Virginia’s districts barely changed in redistricting after the 2010 census, with only Mason County in the far west of the state shifting from WV-2 to WV-3 on the post-2010 map.

Map 2: Manchin margin in 2010 U.S. Senate race, by congressional district

Source: Dave Leip’s Atlas of U.S. Presidential Elections; West Virginia Secretary of State

Map 3: Manchin margin in 2012 U.S. Senate race, by congressional district

Source: Dave Leip’s Atlas of U.S. Presidential Elections; West Virginia Secretary of State

In other words, Blankenship’s best district in the GOP primary also happened to be Manchin’s best district in his 2010 and 2012 Senate contests, and the district also was Trump’s best in his 2016 presidential victory. Additionally, WV-3 was Morrisey’s worst-performing congressional district in his two general election wins for state attorney general: In 2012, he lost it by around six points while winning statewide by a little more than two points, and in 2016, he won it by four points while winning statewide by about 10 points. It was also Morrisey’s worst district in the 2018 GOP primary, though it was also Jenkins’ home base. Should he be an active candidate in November, Blankenship could exacerbate Morrisey’s pattern of relative weakness in WV-3 by winning over some potential GOP voters, which would help Manchin. However, West Virginia is an unusual state politically-speaking, so it is possible that Blankenship could win over some disaffected voters who traditionally cast Democratic ballots and might otherwise vote for Manchin against Morrisey, who Manchin allies are attacking as a carpetbagger (born in New York, Morrisey grew up in New Jersey and ran for Congress in NJ-7 in 2000 prior to winning West Virginia’s attorney generalship). With little polling to go on, it is hard to say. Nonetheless, some of Blankenship’s strongest areas overlap with the Democratic incumbent’s traditionally highest-performing counties and the Republican challenger’s weakest.

“Never say die” candidates: Past primary losers who ran in the general election

Of course, Blankenship actually has to run in the general election, and it is impossible to know whether he will successfully surmount the legal hurdles seemingly blocking his path. But if he does run as the Constitution Party’s nominee or as a write-in candidate, he will join a short list of candidates who lost their primary contests but then ran in the general election. I made a list of every candidate who lost a major-party primary while winning at least 1% and then won at least 1% in the general election as a third-party, independent, or write-in candidate. In all, 39 candidacies (some candidates are on the list more than once) met the criteria for inclusion in Table 1.

Table 1: Candidates who lost a major-party U.S. Senate primary but ran in the general election

Symbols and abbreviations: An “*” indicates a special election. A “^” indicates that Alaska held an open primary that included candidates from all parties, so Gruening’s primary percentage is calculated based on the overall votes cast for just Democratic candidates. Candidates with “(i)” by their names were incumbents seeking reelection. Party abbreviations: “Con.” for Conservative Party, “Const.” for Constitution Party, “Ind.” for independent, “Lib.” for Liberal Party, “Marij.” for U.S. Marijuana Party, “Nat’l” for National Party, “Prog.” for Progressive Party, “Proh.” for Prohibition Party.

Notes: Candidates are listed according to their finish in general elections and then primaries (the “rank” columns). This list only includes candidates who lost a major-party primary and ran as a third-party, independent, or write-in candidate in the general election (this includes one candidate — Ernest Gruening — who lost a nomination in a type of all-party primary). The list excludes candidates who lost a major party’s primary while either winning another major party’s primary or while winning write-in votes in a losing primary effort. For example, Sen. George Norris (R-NE) won write-in votes in both the Democratic and Republican primaries in 1936 but did not officially enter the primaries, instead seeking reelection as an independent rather than as a Republican. The list also excludes primary winners who declined a major-party nomination. For example, Sen. Bernie Sanders (I-VT) has twice won the Democratic primary for Senate in Vermont but maintains his independent affiliation.

Footnotes: 1) Incumbent won as third-party or write-in candidate but caucused with same party in next Congress; 2) Hutchens lost at the Democratic state convention after no candidate won a majority of delegates based on the Georgia primary result; 3) Shuler also won 16.8% in the Democratic primary; 4) O’Brien also won 1.6% in the Republican primary; 5) Cerney also won 0.9% in the Republican primary; 6) Bates also won 35.3% in the Farmer-Labor primary; 7) Candidate cross-filed to run in the primaries of both major parties.

Sources: Archived election results from state election websites, Hathi Trust, and archive.org; CQ Press Guide to U.S. Elections, vol. II (6th ed.); Newspapers.com

Some of the “never say die” candidates in Table 1 cross-filed to run in the primaries of multiple parties, sometimes both major parties. This was particularly easy in California, where from 1914 to 1959 candidates could cross-file to run in as many party primaries as they wanted, and candidates did not have to reveal their actual party registration on the ballot until 1953. For most of that period, however, if a candidate lost the primary of the party with which he was registered, he could not win the nomination of another party even if he won that other party’s primary. Among the candidacies listed in Table 1, the most notable California case was Reverend Bob Shuler, a prohibitionist who ran in both the Democratic and Republican primaries in 1932. Although he lost in both major-party primaries, he won the Prohibition Party’s primary; as a registered member of that minor party, Shuler advanced to the general election despite losing the major-party primaries, and his campaign may have cost the GOP a seat in the U.S. Senate. Winning 23% of the Republican primary vote, Shuler had finished a very close third in a five-way race for the GOP nomination, trailing defeated incumbent Sen. Samuel Shortridge (24%) and victor Tallant Tubbs (25%), who opposed Prohibition. In November, the typically Republican Golden State backed Democratic nominee William Gibbs McAdoo (43%) over Tubbs (31%) and Shuler (26%), with Shuler’s prohibitionist stance attracting many “dry” Republican voters opposed to Tubbs’ status as a “wet.” Of course, Franklin Roosevelt’s 21-percentage point edge over incumbent President Herbert Hoover at the top of the ticket likely boosted McAdoo as well.

Besides Shuler’s 1932 campaign, three other cases where a major-party primary loser may have influenced which party won a Senate seat include the 1918 Montana, 1944 North Dakota, and 1980 New York races.

In Montana, Rep. Jeannette Rankin (R, MT-AL) ran for her party’s Senate nomination in 1918 rather than reelection due in part to redistricting, which replaced the state’s two at-large seats with geographically-based districts and created a seat in her part of the state that was heavily Democratic. Rankin famously became the first woman elected to Congress when she won a seat in 1916, and she gained further notoriety as a pacifist by casting votes against the declarations of war for American entry into both World War I and II (she had won election to the House again in 1940, enabling her to vote on the latter declaration). With the First World War raging, she lost the August 1918 GOP primary by about four percentage points to Oscar Lanstrum (R) for the right to face incumbent Sen. Thomas Walsh (D-MT) in November. But in mid-September she was nominated by the National Party to run in the general election against Walsh and Lanstrum. In a favorable environment for Republicans — the GOP gained five net seats in 1918 Senate contests — Rankin won 23% of the vote and may have helped Walsh win reelection in Big Sky Country with just 41% of the vote to Lanstrum’s 36%.

In North Dakota, intraparty friction on the Republican side helped enable a Democratic takeover in a 1944 contest. The factional strife between the agrarian and progressive Nonpartisan League and the conservative Independent Voters Association (later renamed the Republican Organizing Committee in 1942) had long been a fact of life in North Dakota GOP politics, often leaving the Democratic Party as a third wheel in the Peace Garden State.[1] In 1944, the ROC endorsed incumbent Sen. Gerald Nye (R) in his reelection bid at its convention, while the NPL supported Rep. Usher Burdick (R, ND-AL) against Nye in the Republican primary. But Lynn Stambaugh, a third major Republican candidate who had been mooted as a potential choice for the ROC instead of Nye, entered the GOP race independently of both camps. In an incredibly close three-way primary battle, Nye narrowly won renomination with 34%, defeating Stambaugh (33%) by only about one percentage point (less than 1,000 votes) and finishing ahead of Burdick’s 32% (a fourth candidate won 1%).[2] Stambaugh opted to run in the general election as an independent, something that a previous GOP primary loser to Nye — William “Wild Bill” Langer — had unsuccessfully attempted in Nye’s 1938 reelection bid (Langer is included in Table 1; he later won the state’s other Senate seat in 1940). In November 1944, Gov. John Moses (D) defeated both Nye and Stambaugh while garnering 45% of the statewide vote. Nye won 33% and Stambaugh 21%, helping Moses become the first Democrat to win a Senate election in North Dakota since the start of popular elections for U.S. senators following the ratification of the 17th Amendment in 1913. In a postscript, Moses did not hold the seat for very long, dying just three months into his term. His appointed replacement, Sen. Milton Young (R), won a 1946 special election and held the seat until retiring before the 1980 election.

In that 1980 election, Sen. Jacob Javits’ (R-NY) third-party candidacy in New York probably helped a more conservative Republican retain Javits’ seat. A Rockefeller Republican, Javits was probably the most liberal Republican in the Senate — his DW-Nominate score for the 96th Congress of 1979-1981, his final one, placed Javits to the left of all other GOP senators and four Democrats (plus independent former Democrat Harry Byrd Jr. of Virginia). In a New York Republican Party shifting to the right, conservative Hempstead Town Presiding Supervisor Al D’Amato (R) of Nassau County won sufficient support at the June state GOP convention to take on Javits in a primary without needing to gather petition signatures. Ahead of the September primary, D’Amato received the nominations of the influential Conservative and Right-to-Life parties while Javits earned the ballot line of the Liberal Party. (New York remains one of three states in the country with no ban on cross-filing, and its multiparty system has long been a staple of Empire State politics.) With opposition to the Republican incumbent unified behind D’Amato, Javits lost the Republican primary 56%-44%. Bad headlines about the 76-year-old Javits’ health probably hurt the incumbent, too. However, as the Liberal Party nominee, Javits was on the November ballot, and his candidacy still attracted significant support, including backing from the state teachers’ union. On Election Day, Javits won 11% of the vote, and had Javits instead abandoned his reelection bid, many of his 665,000 voters might have backed Rep. Elizabeth Holtzman (D, NY-16), the Democratic nominee. D’Amato narrowly defeated Holtzman 44.9%-43.5%, needing a relatively small plurality to claim victory. As the Republican nominee, D’Amato probably earned an additional boost from Ronald Reagan’s three-point edge in New York over incumbent President Jimmy Carter at the top of the ticket (analogous to Javits’ role in the Senate race, independent liberal Republican John Anderson’s 7.5% vote share may have cost Carter the Empire State’s 41 electoral votes).

Outside of these four cases, most general election bids by major-party primary losers do not appear to have notably affected the party-winner outcomes in U.S. Senate general elections. Notably, the two candidates to win a general election after losing a primary were both incumbent senators who accomplished this feat in recent times. In 2006, Sen. Joe Lieberman (D-CT) lost renomination to an anti-Iraq War primary challenger on his left, Ned Lamont (who is the frontrunner for the Nutmeg State’s Democratic gubernatorial nomination this year). But Lieberman mounted a general election campaign in one of the only states that still does not have any legal prohibitions against primary losers qualifying for the general election ballot. Lieberman won the general by garnering many Democratic and Republican votes, with the Republican nominee relegated to third-wheel status in the race. In 2010, Sen. Lisa Murkowski (R-AK) lost renomination to Tea Party challenger Joe Miller. However, she managed to win reelection without even making the official November ballot, successfully running a write-in campaign to defeat Miller. A previous primary loser in Alaska, Sen. Ernest Gruening (D-AK), had attempted to do this in 1968 after losing renomination to Mike Gravel (D), but the incumbent finished third with 17% in the general election.[3] Two other incumbent senators, Sen. Robert Stanfield (R-OR) in 1926 and Sen. Smith Brookhart (R-IA) in 1932, lost renomination in their party primaries but won at least 1% in losing general election bids.

Some of the other candidates in Table 1 were not especially influential on general election outcomes, but many were interesting figures. For example, John Neal of Tennessee is on the list five times, but he never came close to winning the Democratic nomination for U.S. Senate or harming Democrats’ chances of retaining a Senate seat. Neal, a progressive who helped lead the defense team during the famous Scopes Trial regarding the teaching of evolution, may have been the archetypal perennial candidate: He sought election at least 20 times in the Volunteer State, mainly for Senate and governor, over a 40-year period between 1920 and 1960. Having previously run unsuccessfully for various state and local offices in Massachusetts, Thomas O’Brien joined demagogic crypto-fascist Charles Coughlin’s Union Party in the mid-1930s. In 1936, O’Brien ran in both the Democratic and Republican primaries for Senate in Massachusetts, losing both races. He then ran in November as the Union Party’s Senate candidate — where he won 7% — while also serving as his party’s vice presidential nominee in that year’s presidential contest. The Union ticket, led by Rep. William Lemke (R, ND-AL), won about 2% of the vote nationally. Louis Ward, another Coughlin acolyte, finished a close second to Rep. Prentiss Brown (D, MI-11) in Michigan’s 1936 Democratic primary for Senate and then won a little more than 4% in the general election, which Brown won with an outright majority.

A handful of sitting and former officeholders ran competitive primary campaigns but had little effect on the November outcome. Rep. Joseph Monaghan (D, MT-1) eschewed a reelection bid in 1936 to challenge incumbent Sen. James Murray (D-MT) in Montana’s Democratic primary for Senate. After losing the primary by just two percentage points, Monaghan ran in the general as an independent, but Murray won reelection with 55% in November. Rep. Fred Aandahl (R, ND-AL) opted to challenge the aforementioned Sen. William Langer (R-ND) in the 1952 Republican primary in North Dakota. Previously North Dakota’s governor for six years, Aandahl lost to Langer in the primary and then finished a distant third in the general election with 10% as a write-in candidate. Former Sen. Glen Taylor (D-ID) won a Senate seat in 1944, then ran as the Progressive Party’s vice presidential nominee in 1948, and then lost renomination to the Senate in 1950. “The Singing Cowboy” ran for the Senate again in 1956 but lost by 200 votes to Frank Church (D) in Idaho’s Democratic primary. Taylor ran as a write-in candidate in the general, but his 5% vote share mattered little as Church won 56% and routed incumbent Sen. Herman Welker (R). Ex-Rep. Charles Randall (Proh., CA-9), one of the only Prohibition Party candidates to ever win a seat in Congress, did not seriously threaten Sen. Hiram Johnson (R-CA) in the Golden State’s 1928 GOP primary for Senate, but won 6% in the general election as the Prohibition nominee.

Some “never say die” candidates later found some degree of electoral success after their failed primary-general election bids. In 1950, Wesley Powell (R) narrowly lost to incumbent Sen. Charles Tobey (R-NH) in New Hampshire’s GOP primary and then won 6% as a write-in candidate in November; Powell would later win two terms as the Granite State’s governor. In 2006, Christine O’Donnell (R) finished a distant third in the Republican primary for Senate in Delaware. But she attracted 4% of the general election vote as a write-in, presaging her infamous 2010 Senate bid in which she upset Rep. Mike Castle (R, DE-AL) in the GOP primary but then lost badly in the general election to now-Sen. Chris Coons (D-DE).

Still others did not have much of an electoral impact but were notable socio-political figures. A notorious bigot and isolationist, evangelist Gerald Smith lost with 31% in Michigan 1942’s GOP Senate primary and then won around 3% as a write-in candidate in November. Ella Boole ran in the 1920 New York Senate Republican primary, trailing far behind incumbent Sen. James Wadsworth Jr. (R-NY). Boole, a major leader of the Women’s Christian Temperance Union in New York, then ran as the Prohibition nominee in the general election, where Wadsworth easily won reelection.

In West Virginia’s 2018 Senate election, there is little reason to think Blankenship can win the general election if he makes the ballot as the Constitution Party nominee or runs as a write-in candidate. Candidates who are not major-party nominees rarely win elections. Nevertheless, if the Manchin-Morrisey contest is close, a few percent of the vote for a Blankenship bid could affect which party controls the Senate seat for the next six years. In turn, with Republicans holding a narrow 51-49 advantage in the Senate, the West Virginia seat could be pivotal for overall control of the upper chamber in the next Congress. Every vote counts, but particularly so in a close election in a closely divided legislative body.

Footnotes

1. Today, the North Dakota state Democratic Party is officially the “North Dakota Democratic-Nonpartisan League Party,” as the NPL joined forces with the Democrats in the 1950s.

2. A sitting U.S. House member, Usher Burdick opted to run for the House again after losing in the U.S. Senate primary but lost as an independent candidate. Burdick’s son, Quentin Burdick, would go on to become a Democratic member of the House and then the Senate.

3. Gravel served two terms before losing renomination in a primary himself in 1980, finishing behind his former rival Ernest Gruening’s son Clark Gruening (D). The younger Gruening lost to Frank Murkowski (R) in the 1980 general election; today Murkowski’s daughter Lisa Murkowski holds that Senate seat. Gravel later ran a quixotic campaign for the Democratic presidential nomination in 2008.