A state law that would prevent U.S. Sen. Rand Paul from seeking the presidency and his seat in Congress on the same Kentucky ballot in 2016 is unconstitutional, claim supporters who are girding for a fight over the law.
Paul certainly wouldn't be the first federal politician to run for the presidency and re-election to Congress at the same time. U.S. Rep. Paul Ryan, R-Wis., Vice President Joe Biden, D-Del., former U.S. Sen. Joseph Lieberman and many others have done it.
In Kentucky, though, state law says a candidate can't appear on the same ballot twice. That would presumably be a problem for Paul, who has said he plans to seek re-election in 2016 regardless of what he decides about running for president the same year.
Paul's allies in Frankfort and Washington contend that Kentucky's law contradicts the U.S. Constitution. They cite a 1995 decision by the U.S. Supreme Court that nullified an Arkansas law that set congressional term limits and prevented a candidate from being on the ballot if he or she exceeded those limits.
"Such a state-imposed restriction is contrary to the 'fundamental principle of our representative democracy,' embodied in the Constitution, that 'the people should choose whom they please to govern them,'" retired Justice John Paul Stevens wrote in the majority opinion.
That opinion clearly "invalidates" Kentucky's law, said Doug Stafford, executive director of Rand PAC, Paul's political action committee.
"It doesn't seem like Kentucky could prohibit somebody from doing two different federal elections since federal law applies to federal elections," Stafford said.
But Stafford and other Paul supporters anticipate a legal challenge if the state legislature doesn't take action.
"I'm sure, if it's not clarified before then, that some partisan operative would attempt to challenge it," Stafford said. "Which makes it all the more important for Kentucky to clarify it ahead of time."
Senate Majority Floor Leader Damon Thayer, R-Georgetown, has drawn up legislation — "a one-sentence clarifier" — that would ensure that Paul has no problems.
Thayer, who said he has discussed the matter with Paul only in passing, is unsure whether to introduce the legislation in the coming year or wait until 2015, when Republicans hope to have majority control of the state House for the first time since 1921.
"I would think that Democrats would want to clarify the law," Thayer said. "They may have a situation like this. And also, why wouldn't they want someone from Kentucky to be able to run for president, whether he or she is a Republican or a Democrat?"
Lexington attorney Scott White, a Democrat with experience in civil and criminal election law, said the legal reasoning of Paul's supporters is wishful thinking.
"Kentucky law plainly forbids a person to be on a ballot for more than one office," White said. "Until that law is ruled unconstitutional, no Kentucky official can certify a ballot with Sen. Paul's name on it for both the U.S. Senate and the U.S. president."
White said that federal law allows that states are to implement "ballot access restrictions," such as filing fees, signature requirements on petitions and requiring state office holders to resign before running for federal office.
In addition, there's the irony of a states' rights advocate such as Paul trying to run for the White House by favoring an almost 20-year-old Supreme Court decision over Kentucky's laws, White said.
"If Sen. Paul does choose to run for both at the same time, then he is basically saying federal power is greater than Kentucky's power to regulate its elections, and he would have to succeed on a close constitutional challenge to an existing Kentucky law," White said.