The Wisconsin Elections Commission voted Tuesday to keep independent presidential candidate Robert F. Kennedy, Jr., shown here at an event in Des Moines, Iowa, in August 2023, on the Wisconsin ballot in November despite his request to be removed. (Jay Waagmeester | Iowa Capital Dispatch)
Independent presidential candidate Robert F. Kennedy Jr. will stay on the Wisconsin ballot in November, the Wisconsin Elections Commission decided Tuesday, despite Kennedy’s last-minute request to be removed.
Elections commission Chair Ann Jacobs, one of three Democratic appointees to the evenly divided commission, argued that state law prevents removing a candidate for office who has met the requirements.
“If you file nomination [papers] and qualify, you may not decline the nomination, and the name of that person shall appear upon the ballot, except in the case of the death of the person,” Jacobs said, arguing against taking Kennedy off the ballot.
The 5-1 vote that included Kennedy on the ballot followed a motion by one of the three Republican commissioners, Don Millis, that excluded Kennedy from a list of approved independent tickets. The Millis proposal failed on a 3-3 tie vote with only Republicans voting in favor.
“I think it’s clear that somebody should have the opportunity to withdraw before we decide to put them on the ballot,” said Republican commissioner Bob Spindell, who voted against the motion that kept Kennedy.
Kennedy announced Friday he was suspending his independent presidential campaign and throwing his support behind former President Donald Trump, the Republican nominee. In a statement, he said he would seek to pull his name from the ballot in 10 battleground states “where my presence would be a spoiler,” siphoning votes from Trump.
Along with Kennedy, the commission certified two other independent presidential tickets: Cornel West and his running mate, Melina Abdullah, running under the Justice For All party banner; and Claudia De la Cruz and Karina Garcia representing the Socialist and Liberation Party.
The commission rejected, on a 5-1 vote, a challenge that would have excluded West and Abdullah from the ballot because one of two notarized pages on the papers their campaign submitted lacked a notary’s signature. Jacobson cast the dissenting vote.
In a separate vote, the commission included three third parties along with the Democratic and Republican parties on the November presidential ballot, after a lengthy discussion about whether state law regarding how presidential electors are chosen would block the smaller parties.
Electoral votes also figured into another argument, over whether prospective independent presidential candidate Shiva Ayyadurai qualified for the ballot.
An elections commission staff report recommended excluding Ayyadurai based on a challenge to his candidacy on the grounds that the presidential hopeful was born in India and therefore isn’t a natural-born U.S. citizen as required by the U.S. Constitution.
Ayyadurai argued that the commission’s only jurisdiction was over presidential electors pledged to the candidate, whose qualifications were not challenged — not Ayyadurai himself.
He cited the U.S. Supreme Court opinion in the Colorado case that blocked Donald Trump from that state’s presidential ballot on the grounds of committing insurrection. In its review of that case, “the Supreme Court unequivocally, in a 9-0 ruling, asserted that only Congress, only Congress, can qualify or disqualify candidates for federal office,” Ayyadurai said.
On a 5-1 vote, with only Millis dissenting, the commissioners rejected the argument and voted against listing Ayyadurai on the ballot.
Over the course of nearly three hours of debate, commissioners grappled with legal questions that included arguments over the precise meaning of language in state law as well as minutia involving the Electoral College — the mechanism in the U.S. Constitution by which U.S. presidents are formally elected.
In the debate over whether to honor Kennedy’s request to withdraw, Millis acknowledged that the statute appears to bind candidates once they pass the hurdle of filing signatures to run for office.
“This is a troubling thing for me,” Millis said. “I think after we have acted [to certify a candidate for the ballot], that’s a different situation, because clerks have to print ballots, and I think you don’t want to have people being arbitrary or willy-nilly withdrawing at that point. But before we set the ballot, it seems to me that it makes sense to allow candidates to withdraw, and that’s what I’m struggling [with].”
Marge Bostelman, another Republican commissioner, suggested that the law’s language might refer to candidates after they’ve been approved for the ballot. “They are not on the ballot yet,” Bostelman said of Kennedy and his running mate, Nicole Shanahan. “Why, if they have requested to be off the ballot before it’s printed … cannot we honor their request to be off the ballot?”
“Because the statute literally says, If you filed nomination papers and qualified,” Jacobson replied. Kennedy’s nomination papers were not challenged, she added. “He qualifies.”
Argument over electors
The debate and vote over Kennedy followed a longer debate over an attempt by Democratic Party representatives to block the Green Party from the November ballot because of language in state law relating to how presidential electors are supposed to be chosen.
On Monday, the Wisconsin Supreme Court declined to hear a case brought by Democrats that argued Green Party candidate Jill Stein should not be on the ballot because the party has no official state officers who can nominate presidential electors.
With the court’s rejection of the case, the issue returned to the elections commission, Jacobs said, “to address whether or not we can put people on the ballot who cannot qualify under state law to nominate electors for a presidential race.”
According to Wisconsin law, political parties are to choose their presidential electors in October of the election year at a meeting of that party’s state government officers. The Democrats’ objection to the Greens was that since the party has no state government officers, it could not name electors and therefore couldn’t field a candidate.
Millis observed that the issue hasn’t been raised in the past, and that other state laws have awarded the Green, Constitution and Libertarian parties ballot status on the basis of their past election showings.
“I don’t recall seeing anything in the statutes that say you don’t get ballot status, or your candidate can’t be on [the ballot] for a ballot-status party…. if you’re not able to go through the statutory process to nominate electors,” Millis said.
Jacobs said that if any of those parties carry Wisconsin, they couldn’t actually turn their popular vote majority into electoral college votes.
“There’s no method by which to nominate the electors, and if you don’t have electors, then essentially the votes of people who vote for them are thrown out,” Jacobs said.
State law, she added, “specifically states that a person is ineligible for ballot placement if a candidate is ineligible to be elected,” she added.
Millis called that a “kind of paternalistic” argument.
“You’re making a judgment call for people out there who might want to vote for a third party,” he said. “I think many people vote for a third party knowing that they’re not going to win, or they’re highly unlikely to, but they want to send a message. And what you would do is not even give them that chance to send the message.”
The commission rejected Jacobs’ attempt to turn the certification motion into two separate motions. One would certify the Republican ticket of Trump and Sen. J.D. Vance, as well as the Democratic ticket of Vice President Kamala Harris and Minnsota Gov. Tim Walz. The other would consider whether the Constitution, Green and Libertarian parties qualified for the ballot under the law covering how electors are chosen.
The commissioners tied on a party-line vote, defeating the amendment, then voted 4-2 to certify all five parties. Jacobs and Mark Thomsen, both Democrats, voted no.
This report has been updated.
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