On September 16, Bob Barr and Wayne A. Root asked the Supreme Court of Texas to rule that the Texas Secretary of State had no authority to certify the Democratic and Republican presidential and vice-presidential nominees for the ballot. As is fairly well-known, the Texas law requires qualified parties to certify their national nominees by 5 p.m. of the 70th day before the general election, which was August 26. UPDATE: here is the text (preliminary non-text portions are not included).
Of course, the reason the major parties were late was because both of them held their national nominating conventions later than the deadline. The Democratic National Convention was underway when the deadline passed, but the party had not yet nominated Obama and Biden. The Republican National Convention was entirely beyond the deadline.
The petition for a writ of mandamus is quite poetic, quoting the famous passage from “A Man for All Seasons”: “What would you do? Cut a great road through the law to get after the Devil?…And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws all being flat?…This country’s planted thick with laws from coast to coast–Man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then?”
There are Texas Supreme Court decisions that have put candidates on the ballot even though deadlines were not met, but they involved errors by party officials. In this case, party officials made no errors; they were simply unable to comply with the law. Lenora Fulani had filed a similar lawsuit in Indiana in 1988, since both the Democratic and Republican Parties had failed to file timely. In Fulani v Hogsett, the 7th circuit ruled that, since she was also listed on the ballot, she had standing to sue; but that she filed her lawsuit eleven weeks after the deadline had been missed, so was guilty of laches.
Glad they finally filed it.
I fear they waited to long. The deadline was past 21 days ago. Is 3 weeks timely action?
The date of the deadline is not what should start the clock. The date that the first late filing was accepted or better the acceptance was made public.
According to the State of Texas the ballot was officially certified on September 3rd, so it was filed just shy of 2 weeks after that date. I’d say that’s fairly timely. Weighing options, acquiring competent counsel, and crafting case language takes some time.
The target date was the 20th or 21st of September, depending on how one counts days. We filed it as soon as we could do the very extensive research and find a lawyer in Texas brave enough to handle the case. Fortunately, we got an able and courageous man to do so. Texas is built on politics and it is tough when a lawyer stands up to “the big guns” as has to be done in this case. There are numerous Texas cases where the Supreme Court has either ordered the ballots to be changed or held for new printing after long the statutory date – in one case as late as 14 days before the election. By the way, the national LP is paying at least some fees for this case so anyone willing to send them a donation specific to the filing of the case would be very welcome – they need all the funds they can get to do campaign work. Thank you all.
The key issue on the timing of the suit will probably be the date the state has to get the ballots printed. The HAVA requirements for military voters may also be a factor.
good move regardless of outcome
So this isn’t outside the statute of limitations?
I am disappointed with the TX Congress… Didn’t they know when they rewrote the election laws that the Olympics may cause the Conventions to be at the end of Aug or early Sept?
But the law is the law… should we make exceptions?
Wait a second.. wasn’t there a report that LPTX filed this suit and not the Barr campaign?
Not that it matters much, because in either case I hope they win, but some clarification from both Barr and LPTX would be nice.
I’m very pleased to see the LP and the Barr Campaign take a stand here in Texas. I’m tired of the government policy of “do as I say, not as I do”!
With such a clear argument with no disputed facts, I’d be surprised if the court sides with the TX Secretary of State. I can already hear the false cries of “disenfranchisement!” If the court agrees with the LP, all blame is on the Republicans and Democrats.
Let the fireworks begin!
There only statutes that we need to worry about time-wise are those governing early voting. 141.034 allows challenges to positions on the ballot until the beginning of “early voting by personal appearance”. This is important because it is a date only 17 days before the election. The other date is the beginning of early voting, i.e. mailing of absentee ballots, etc. That date would be Sept. 21st, 45 days prior to the election. In some cases the courts have gone with the first date, in others, with the second. I even found a case where the Supreme Court directed the Secretary to issue new ballots only 14 days before the election. (There is a provision in the law for sending out corrected ballots for overseas and other absentee voters.)
Joe, you are absolutely right. There should not be exceptions of this kind. I can go along with many that courts have granted, for example, where there was something wrong with the petition through no fault of the party or the candidate. But here with have the two major parties treating the elections laws as though they don’t apply to them but do apply to any third party or independent candidate who dares to come along and try to get on the ballot. The Republicans got the Libertarians off the ballot in West Virginia this year on a technicality. The Democrats have consistently in the last three elections fought against Nader being on the ballot in many states – always on technicalities. Should these folks be above the law or not? No.
Besides, we have a great constitution that allows for interesting little problems with elections of presidents and vice presidents should they not get a majority of electoral votes through the regular general election. We are a country of laws, not a banana republic. In my opinion, the way the Texas Supreme Court rules on this is going to tell us if we are a country of laws or not.
Sorry for all the typos – trying to respond here while doing research for a restraining order in the Texas case LOL Thanks for your patience.
The TX Congress should not concern themselves with the possibility of the Olympics shifting convention dates. Both the DNC and the RNC could have chosen to hold their conventions in July and avoided the whole problem. The responsibility rests with the party to file on time; and if no one took the time to look up all of the States’ filing deadlines before they scheduled nominating conventions, that’s their problem. You either file on time, or you don’t. It’s that simple! Kudos to the Barr/Root campaign for filing this!!
If this really wins the blowback would be mighty (“don’t mess with Texas” comes to mind). It does make a good point though — only the R’s and D’s would be allowed to get away with this.
Do you think Barr will cite “Nader v Connor” as a precedent? In 2004 Ralph Nader didn’t turn in any petition signatures by the May 10th deadline in Texas to be on the ballot, he did however file about 80,000 two weeks later on May 24th however they denied him access because he did not turn in the proper number of signatures by the deadline. Certainly there are some differences for in Nader’s case but meeting deadlines were an important part in that ruling.
I have no doubt that the courts will go through some mental gymnastics to find a way to rule against Barr–but at least that will establish a very useful precedent the next time a state rules against a minor party on some deadline issue.
I think the question is will the courts in texas ignore a ruleing just two years old where they warned candidates and parties not to miss legislated deadlines. I can think of two reasons they may make an exception.
1) That the Secretary of State missinformed the parties and the candidates about the law.
2) That waiting 3 weeks to file wasn’t timely.
Other then those two reasons I think the Texas courst will have to rule for Barr. Then the two parties have a couple of options. Change the law or go to federal court.
At any rate I think this will be amussing.
Since reportedly several Republicans had called Barr up and asked him not to run I have to wonder if they haven’t called him up and tried to talk him out of this?
Now lets suppose this thing blows up and becomes a media issue. Imagine the book deals.
I was living in NJ when the State Supreme Court unbelievably acted like Gods and created an exception to allow the Democrats to replace Torricelli when the scandals against him were getting red hot and it looked like he was going to lose. Here’s is a quick quote from one story I just looked up on it:
————— from http://www.newsday.com/topic/ny-news_1001,0,5989985,full.story ——–
New Jersey’s election laws also pose problems. The deadline for candidates to file for the race has passed. New Jersey state law permits a political party to select a replacement candidate when a vacancy occurs on the ballot 51 days before an election. With that window closed, Torricelli filed an appeal with the New Jersey Supreme Court to allow for an alternative candidate to be placed on the ballot. In 1969, the New Jersey Supreme Court granted such an exception after a candidate died.
Republican Party officials plan to wage a vigorous legal challenge to the replacement effort, said Ginny Wolfe of the National Republican Senatorial Committee, the party’s campaign organization. “For them to try to put a new person in the race just because they are losing is clearly against the law,” Wolfe said. “We will challenge that.”
Great news! I’ll be keeping my eye out for this case. If the (R) and (D) candidates get on the Texas ballot, then they open up the ballot to ALL parties who have made an effort to file (and have had their efforts turned down due to deadlines).
I’m rooting for the court to decide for the plaintiffs (Barr and Root), that will really highlight the pure hypocrisy of the two major parties when it comes to fairness and adhering to the process. 34 electoral votes potentially to the Libertarian Party!
Folks, I need to correct a dumb mistake I made earlier. Be nice and blame tiredness instead of brainlessness, ok?
The Barr campaign NOT the Libertarian Party is providing funds for prosecution of the case. I know the folks in the Barr campaign will generously forgive my mistake.
More good news in the case. The Solicitor General of Texas attempted to stop the case dead with a letter to the court essentially asking them to ignore the case for any number of baseless reasons. In spite of the letter, the Supreme Court yesterday ordered the Texas Secretary of State and the Texas Republican and Democratic Parties to file responses to the petition by 3PM on September 22nd.
Well, the chance that the court is actually going to remove McCain and Obama from the ballot is like zero, whether or not they can actually legally justify not removing them. The practical justification is that the court isn’t going to want to deprive millions of voters of their preferred presidential candidate being on the ballot.
But if the Republican Party was allowed to certify its candidates nine days late, Barr should request that, as an alternative remedy, the Secretary of State be ordered to accept filings from any candidate or party for any office that were up to nine days late this year. After all, if deadlines can be slipped nine days for a major candidate, there’s no reason they can’t be slipped nine days for a minor candidate too.
*rolls eyes* I can’t decide whether to take this seriously or not. I imagine this would be good as collateral to get Barr on the West Virginia ticket though.
I think almost every regular citizen would find this lawsuit too technical, as the Olympics pushed back the conventions. Maybe the election should have been pushed back to account for this 70 day rule. And do any of the other states have this rule, or just Texas?
With all the sucessful efforts that the Democrats and Republicans have gone through in various states to keep other folks off the ballots, I believe they should have to follow the same rules they are trying to use on others. I am very surprised that this has not been pickedup by any major news outlets.
Still waiting to hear about it on the evening news.
Michael: The Olympics were scheduled for their dates this year even before the Democratic and Republican conventions were scheduled. For that matter, the dates of the 2012 Olympics are already known (July 27 to August 12).
There are various reasons that a party might want to schedule its convention either earlier or later in the year. But I would hope that one of the constraints they would take into account was the deadlines imposed by the various states for certifying their candidates. If they are legally required to certify their candidates by a certain date, they ought to schedule their convention to end before that date.