Texas Has the Most Obviously Unconstitutional Deadline for Independent Presidential Candidates

All states have deadlines for independent presidential candidates to file ballot access petitions that range from June 9 to September 9, 2016; except that the Texas independent presidential petition deadline is May 9.

The U.S. Supreme Court said in Anderson v Celebrezze, in 1983, that independent presidential petition deadlines cannot be as early as March 20. Since then, most states have moved their deadlines to July, August or September. Only four states are in June. Lower courts have invalidated June deadlines in Alaska, Arizona, Idaho, Kansas, Nevada, and South Dakota.

Thus, it seems likely that if any independent presidential candidate challenged the Texas May deadline, he or she would win. The Texas presidential independent deadline is even more difficult to defend because the Texas petition deadline for independent candidates for office other than president in 2016 is June 23 (30 days after the runoff primary). Obviously, if Texas election officials can cope with a late June petition deadline for independent candidates generally, there is no need for an early May petition deadline for presidential independents.

The Texas legislature doesn’t sit in even years, for the purpose of ordinary law-making. And the 2015 session adjourned months ago. Thus it won’t be possible for the legislature to fix the problem until 2017, unless there is a 2016 special session.


Texas Has the Most Obviously Unconstitutional Deadline for Independent Presidential Candidates — 3 Comments

  1. Wasn’t that Texas deadline’s validity already sustained by the horrendous decision issued in Nader v. Connor, 332 F. Supp. 2d 982 (W.D. Tex. 2004), summarily aff’d, 388 F.3d 137 (5th Cir. 2004)? Given the Nader decision’s holding, it would seem that any such challenge would have to either allege additional compounding barriers not raised by the plaintiffs in that case, or else petition the Fifth Circuit to overrule that decision en banc.

  2. Texas law has changed since Nader v Connor was decided in 2004. Back then the Texas runoff primary was only 30 days after the first primary, so there was little difference between the independent candidate petition deadline for president and the independent candidate petition deadline for other office.

    Also the US District Court in Nader v Connor made an important factual error in his decision. He said the deadline wasn’t discriminatory between independents and newly-qualifying parties because the presidential candidate of a newly-qualifying party had to file a declaration in January of the election year. That was not true and even the state’s attorney admitted that. But the 5th circuit went right ahead and wrote a one-paragraph opinion saying they were affirming the “wonderful” US District Court opinion.

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