Florida, DeSantis and the long history of election law hardball
The Republican-controlled Florida legislature recently changed a "resign-to-run" statute that prevented elected officials from running for other offices without first stepping down from their existing position. The revised statute exempts anyone running for president or vice president from the provision. Why did Florida Republicans do this? And how common is it to change state laws in this fashion?
The DeSantis factor
"This isn't just for our governor," said GOP state Rep. Ralph Massullo after his fellow Republicans changed the state's resign-to-run law. "It's for anyone in politics." But despite Massullo's protestations, the bill was a transparent maneuver to allow Gov. Ron DeSantis (R) to pursue his long-rumored White House bid. It is actually the third time that the legislature has changed its election laws to benefit a specific office-seeker – in 2008, the GOP legislature eased resign-to-run requirements to aid then-Gov. Charlie Crist's potential selection as John McCain's running mate. And then in 2018, the legislature restored the law with a carve-out to allow then-Gov. Rick Scott to run for the U.S. Senate.
There is a rich history in the United States of partisan tweaks to election laws designed to thwart or grease the skids for particular people or parties. In 2004, Massachusetts Democrats, hopeful that then-Sen. John Kerry would win the presidency against incumbent Republican George W. Bush, passed a law requiring a special election within 145-160 days after a vacancy. The governor, at the time Republican Mitt Romney, wouldn't even have been able to make a temporary appointment had Kerry won. State Democrats then tweaked the law again in 2009 so that Democratic Gov. Deval Patrick could appoint a temporary replacement for the late Sen. Ted Kennedy.
A mixed history
Vacancy games are played by both sides. In 2021, the Republican supermajority in the Kentucky state legislature passed a law requiring the governor to appoint a senator from the same party as the incumbent should a vacancy occur. Voters in the deep red state had unexpectedly elected a Democrat, Andy Beshear, governor in 2019. Kentucky's senior senator, Senate Minority Leader Mitch McConnell, was 79 when the law was passed and rumored to either be in poor health or considering resignation. Kentucky Republicans didn't seem too worried that there will be blowback from the change. With supermajorities in the state legislature, Republicans figure they can just change the law back if a Democrat ever wins another Senate seat there under a GOP governor. And the voting public did not seem terribly bothered by any of it, re-electing McConnell by almost 20 points over a generously funded Democratic challenger.
These partisan maneuvers tend to have a shelf life, and often come back to haunt their architects. The whole Massachusetts ordeal would ultimately boomerang on Democrats as Republican Scott Brown won the 2010 Senate special election, immediately depriving President Barack Obama of a Senate supermajority and depriving the Democratic majority of the opportunity to pass more legislation. State Democrats almost certainly would have changed the law once again if Sen. Elizabeth Warren had joined President Biden's cabinet after 2020.
The rise of 'constitutional hardball'
All of these gambits fall under the rubric of what legal scholar Mark Tushnet termed "constitutional hardball." In a now-famous UIC Law Review essay, Tushnet defined the idea as partisan schemes "that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings." In other words, constitutional hardball refers to cut-throat political tactics that may technically be permissible under the legal order but that nevertheless are violations of informal understandings and practices. A good example from recent history was then-Senate Majority Leader Mitch McConnell's decision not to hold hearings for Merrick Garland, Obama's pick to fill the late Antonin Scalia's seat on the Supreme Court in 2016. When deployed over and over again, hardball tends to erode trust between political actors, who are then incentivized to pursue maximal political gains at the expense of the future stability of the system.
Election laws should, in theory, represent important principles that transcend the needs of partisan politicians at any given moment. Florida presumably had a resign-to-run law in the first place because lawmakers believed that state executives should focus on the task at hand rather than trying to simultaneously govern the state and pursue higher office. When the law becomes just another extension of partisan combat, subject to revision after revision based on changing circumstances, it undermines public faith in the integrity of the political system and breeds justifiable contempt for the elected officials doing the manipulating.
DeSantis, however, would hardly be the first presidential candidate whose state backers unshackled him from an inconvenient obstacle. In April 1959, Texas Democrats passed what became known as the "LBJ Law," repealing a statute that prevented state officials from running simultaneously for multiple offices. It allowed Senate Majority Leader Lyndon Baines Johnson to seek election as John F. Kennedy's vice president and also to run for his Senate seat. Kennedy and Johnson won their White House bid, and Johnson's appointed replacement, William Blakley, lost his 1961 special election to Republican Jim Tower. Democrats have yet to recover the seat, which has remained in GOP hands for 62 years.
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