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.