Why RFK Jr. didn't qualify for the first presidential debate

The clock struck midnight on Robert F. Kennedy Jr.'s window to qualify for CNN's June 27 general election debate, and the network formally announced that he won't make the stage. That hour on Thursday marked the deadline to meet CNN's qualification requirements, which included being constitutionally eligible to become president, having at least four qualifying national polls with at least 15 percent support that meet CNN's guidelines and having confirmed ballot access in enough states to potentially win a majority in the Electoral College (270 electoral votes). Kennedy ultimately came up short on both polls and ballot access in his bid to get a spot on the debate stage alongside President Joe Biden and former President Donald Trump.

But even though Kennedy didn't qualify, his legal challenge to the debate is still ongoing. In late May, Kennedy's campaign filed a complaint with the Federal Election Commission alleging that the CNN debate violates campaign finance law because the network "colluded" with the Biden and Trump campaigns in planning the debate and is using different ballot access rules for the two major-party contenders compared with Kennedy. CNN has said that Kennedy's complaint is unfounded. All in all, it seems unlikely — although not impossible — that the FEC will intervene on Kennedy’s behalf.

Here then is a look at Kennedy's qualification situation and the legal wrangling that could play into the CNN debate.

Kennedy ended up short on polls and ballot access

On the polling front, Kennedy's situation was pretty cut and dried: He had three national polls at 15 percent or better that qualify under CNN's rules, which means he needed one more at that level of support. However, Kennedy likely missed his final shot at a fourth poll when Beacon Research/Shaw & Co. Research/Fox News released a national survey on Wednesday evening that found him at 10 percent.

Although he's polled at around 9 to 10 percent in 538's national polling average since mid-March, Kennedy's support level from survey to survey has varied enough that getting to 15 percent in four qualifying polls seemed plausible for him when CNN released its debate criteria in May. However, Kennedy has hit that mark in just three of the 14 eligible national surveys of registered or likely voters that included him as an option. Still, a small bit of variation in the result of just one other survey would have allowed him to meet CNN's polling criteria — after all, he hit 14 percent in two qualifying surveys.

Yet even if he had gotten a fourth poll, Kennedy sat well shy of CNN's requirement for ballot access at the end of the qualifying period. Unlike the major-party nominees, independent and third-party contenders aren't all but guaranteed ballot access in all 50 states and the District of Columbia, so they must navigate each state's rules for garnering a spot on the ballot — a process that usually involves gathering a sizable number of petition signatures. Kennedy's campaign claims to have made the ballot in 23 states worth 310 electoral votes, but CNN said last Saturday that it had only confirmed he'd made the ballot in six states worth 89 electoral votes. Earlier this week, ABC News confirmed that Tennessee has also put Kennedy on the ballot, but that still gives Kennedy only 100 potential electoral votes — far short of the 270 he needs to meet the debate requirement.

To reach 270 potential electoral votes, Kennedy would have needed, at a minimum, nine of the 16 unconfirmed states his campaign claims access in to confirm that he's made the ballot — a tall order. Recognized minor parties with ballot access in Florida (30 electoral votes) and South Carolina (9) have announced Kennedy as their presidential nominee, and Kennedy's We The People Party appears on the cusp of having access in North Carolina (16), so he might credibly say he's at 155 electoral votes. But that would still leave him needing confirmation in most of the medium-to-large states on his list — such as Texas (40), New York (28), Ohio (17), New Jersey (14), Washington (12) and Minnesota (10) — along with perhaps one or two smaller states.

Ongoing litigation over Kennedy's ballot status has potentially delayed confirmations in some states, too. For instance, Nevada's secretary of state said the campaign's petitions in the state were likely invalid under state law because they didn't list Nicole Shanahan, Kennedy's vice presidential running mate. While Kennedy's campaign has mounted a lawsuit over the issue, it has also begun efforts to recollect signatures with a new petition form in the meantime.

A debatable legal situation

But Kennedy is also waging a more direct legal battle over the debate qualification situation: He's filed an FEC complaint alleging that CNN's debate violates campaign finance rules. Based on federal law, the organization staging a debate must determine candidate inclusion based on preestablished objective criteria, and, for a general election debate, a candidate's nomination by a particular party cannot be used as the lone factor. Otherwise, the event could be seen as a contribution to the debate participants, subject to campaign finance limits — which the cost of a debate would almost certainly run well beyond.

With this in mind, the Kennedy campaign contends that CNN "colluded" with the Biden and Trump campaigns to set the debate criteria and make sure that they were the only two candidates on stage. It also argued that CNN is using different qualification criteria for Biden and Trump by mandating that Kennedy meet the 270-electoral vote ballot status requirement even though the two major-party contenders won't be formally nominated — and thus secure ballot access as their respective parties' nominees — until their conventions happen later this summer. In response, a CNN spokesperson said in May that "the law in virtually every state provides that the nominee of a state-recognized political party will be allowed ballot access without petitioning. As the presumptive nominees of their parties both Biden and Trump will satisfy this requirement."

Derek T. Muller, a professor at the University of Notre Dame Law School who studies election law, told me that the Kennedy campaign's case for collusion may not be particularly strong. Although CNN clearly engaged with the Biden and Trump campaigns as it put together the debate, Muller felt CNN might "have a good leg to stand on" because the network adopted qualification criteria similar to what the Commission on Presidential Debates has long used for its debates and planned to use for any it hosted this cycle: a 15 percent polling threshold and minimum ballot access threshold. In theory, CNN could have created criteria that would have been nigh impossible for Kennedy to meet, such as a 30 percent polling threshold, but chose not to. Minor parties and candidates have previously challenged such criteria, only for the courts to consistently uphold the CPD's rules. "There's pretty robust precedent that at least the things that the CPD has used in the past are acceptable criteria," Muller said.

However, Muller said the Kennedy campaign may have a stronger case that CNN has failed to consistently apply its qualification rule regarding ballot access. "Biden and Trump are not the nominees. They're not on the ballot in any state," Muller said. "So CNN has had to massage that criteria and say, 'Well, they're the presumptive nominees, and we expect they will be on the ballot.'" That this is the earliest general election debate ever is part of the issue: Although the CPD uses similar criteria, its debates have always come after Labor Day, by which time ballot certification has concluded in all or nearly all states, making it more straightforward to assess ballot access as a criterion.

Yet even if Kennedy's complaint has merit, the FEC may not take action, in part because of partisanship. The FEC has six members — three Democrats and three Republicans — and four commissioners would have to agree to pursue a case against CNN, necessitating at least some degree of bipartisanship. The Biden campaign clearly doesn't want Kennedy on stage, so it may be unlikely that any of the Democrats would break ranks to join three Republicans to vote to move forward with a case — if the three Republicans had any interest in doing that. (While there has been a recent run of bipartisan agreements among the Republican trio and one Democratic member to loosen some campaign finance rules, Muller wasn't sure that trend was either sustainable or applicable to questions surrounding a debate.)

Meanwhile, Muller noted past ideological opposition among Republican commissioners to FEC intervention in media-run debates. In 2015, a little-known GOP presidential contender named Mark Everson filed an unsuccessful FEC complaint against Fox News over the broadcaster's choice to change its preestablished criteria for qualification to the first Republican primary debate of the 2016 cycle. The newsiest part of the proceedings was a 4-2 FEC vote determining that Fox News's debate rules had not violated the law. But another vote in the proceedings may have particular relevance here: All three GOP commissioners also felt the FEC regulations themselves were invalid and supported a separate motion that said the FEC lacked the power to investigate Fox News (the motion failed 3-3).

"The three Republican members said, 'We think there's a First Amendment issue here, and we can't even get involved in the first place,'" Muller told me. "Who are we to tell the campaigns or debate organizations what they can and can't do as a media entity?"

Even if four commissioners agreed to move forward with a case, time is running short for the FEC to issue a ruling to compel CNN to put Kennedy on the stage. Even if such an order came just before the debate, CNN could challenge it in court, which could push any resolution beyond June 27. And a ruling that came after the CNN debate (i.e., issuing a fine on CNN) wouldn't help Kennedy in that debate, or in the next general election debate that ABC News plans to host in September. By then, the matter of whether Kennedy has sufficient ballot access should be unambiguous.

Kennedy is trying to become the first third-party or independent presidential candidate to make a general election debate since Ross Perot in 1992, but barring unexpected and swift action by the FEC, it looks like he'll have to hope for success in September instead.