Virginia's 'sore loser' law could affect 5th District primary lineup

With at least seven candidates running for the Republican nomination to challenge Rep. Tom Perriello (D) in the 5th District, there has been talk of some of those candidates running as independents if they lose the primary - but Virginia law prohibits that.

According to the Code of Virginia's section on candidates and elections (24.2-520), candidates filing for a primary must sign a statement agreeing that if they lose, their names cannot be printed on ballots for the general election. Meaning, if a candidate in the Republican primary for the 5th District loses on June 8, he or she cannot run as a third-party candidate in November.

The deadline for filing as an independent, however, is June 8 at 7 p.m. - the same time the primary polls close.

"We give them the same deadline as the primary candidates," said James Alcorn, deputy secretary of the State Board of Elections.

Isaac Wood, the House of Representatives race editor of political analyst Larry Sabato's "Crystal Ball" newsletter, noted that the filing deadline makes the "sore loser" law a moot point.

"It wouldn't really be possible to find out you lost (the primary) and submit all your petitions and signatures by that time," Wood said. "It's kind of a moot point.

"I think that what it means though is that if anybody on the Republican side wants to run as an independent, they have to decide obviously before the primary. In effect, the calendar acts as a 'sore loser' law. It's self-enforcing."

The deadline to file the declaration, petitions and fee for the Republican primary is April 9 at 5 p.m. - although the SBE may grant extensions. What is unclear, however, is by what date a candidate must pull out of the primary race in order to re-file as an independent.

"We're not aware of any deadline to withdraw," Alcorn said.

To withdraw from a primary, Matt Abell, assistant manager of the election services division at the SBE, said the candidate must submit a withdrawal letter to the party chairperson and the SBE. He also noted that there was no law preventing a primary candidate from simultaneously preparing to run as an independent.

"There is no prohibition in the code which would stop a qualified primary candidate from circulating independent petitions for the general election," Abell said in an e-mail. "Certainly, party rules would frown upon the action but the code doesn't explicitly block the action."

Republican primary candidates Laurence Verga and Jim McKelvey have both contributed a significant amount of money to their own campaigns - $276,579 and $500,000, respectively - leading some to infer a possible independent run. But Verga said he would not run as an independent.

"I am aware of that law," Verga said. "I will not run as an independent. I think it's a waste of time and a waste of money and a sure fire way to help Tom Perriello win ... I am determined to win the Republican nomination and to reform the Republican Party."

McKelvey, however, was not so clear - he said "all options are open."

"Jim McKelvey can only support a fiscal constitutional conservative," McKelvey said. "With that said, we'll see what the future brings. I plan on being there through November.

"There's a point ... where people are going to make decisions, hard decisions. There's a lot of people in this district who are concerned about who the Republican Party will put forth ... I do not play to lose."

Should the field of independents grow larger, Wood said it is likely that candidates will begin to drop out of either the Republican or independent fields and throw their support behind another candidate.

"Virginia has not had a very long or successful history of third parties," he said.

But former Republican candidate Bradley Rees - who initially dropped out to run as an independent partly because of the "sore loser" law - thinks a strong independent candidate could be successful in the 5th District. Rees, however, is no longer seriously considering a run for Congress, but was not optimistic about the Republican Party's chances if state Sen. Robert Hurt wins the nomination.

"I think (the Republicans) stand a very good chance of losing in November because there will be no contrast between (Hurt and Perriello)," Rees said, referring to Hurt's 2004 vote to raise Virginia taxes.

"Political battles, especially for a general election, are all about contrast. If you have a Republican that has raised taxes and a Democrat that has voted for policies that basically constitute a tax increase, then an independent that has a record and core principles that are opposed to tax increases ... that may be enough of a contrast for an independent to win."