September 19, 2008
Barr to county clerks: Don't mail those ballots!

As we know, Libertarian candidate Bob Barr has filed a lawsuit claiming that Barack Obama and John McCain failed to meet a deadline for appearing on the Texas ballot, and thus should be excluded. He has now sought an emergency order from the Texas Supreme Court to stop county clerks from mailing out absentee and overseas ballots, which would contain their names.

The Libertarians claim both national parties missed an Aug. 26 deadline for submitting the name of their presidential candidate to the Texas secretary of state for certification.

While neither national party officially had a presidential nominee by that date, both state parties filed paperwork with the secretary of state's office regarding their intent. The office certified McCain and Obama.

The lawsuit, filed earlier this week, contends this amounts to an illegal pre-certification. The state's high court has given the state and the state and national parties until 3 p.m. Monday to respond. The motion filed today seeks to stop the mail-out of ballots until after the lawsuit is resolved.

Barr said both state parties have known for years when their national conventions would be held and the date of the certification deadline. He said the parties should have asked the 2007 Legislature to modify the deadline to match the conventions. He described their inaction as "hubris."

Barr said the state law is clear and the Supreme Court should have no problem ruling in the Libertarians' favor.

"It should require no legal contortions whatsoever to stand for the rule of law," Barr said. "The law we have here in Texas is not ambiguous. It is not vague."

Texas Libertarian Chairman Pat Dixon said the party in the past has been denied ballot access for not following the rules. And he noted that independent candidate Ralph Nader has been denied ballot access in Texas for not getting enough voter signatures in a very complex ballot access petition procedure.

Nader sued over his failure to make the ballot, but lost, with the judge saying that the procedures were "reasonable, nondiscriminatory, and constitutional". Maybe that bolsters Barr's case, I don't know. In any event, the State Solicitor General wrote a letter (PDF) to the court calling the mandamus petition "meritless" and saying that the relevant law is only about a "Party candidate's entitlement to be on the ballot", and doesn't say anything about removal. He also states that the timing of this suit, especially given that the problem it seeks to address would have occurred three weeks ago, threatens the rights of military and overseas voters.

I'm not a lawyer, so I can't really address the merits of Barr's claims. I'll simply note that I'd expect about 8 million ballots to be cast this year (there were 7.4 million in 2004, and we've already set a record for voter registrations in Texas, with two weeks to go before the deadline), and if historic patterns hold true, probably at least 7.8 million of those ballots will be cast for McCain/Palin or Obama/Biden. That may be an underestimate, given that the high water mark for a Libertarian Party Presidential candidate in recent years was 0.52% of the vote in 2004 - Ralph Nader (who not unsurprisingly supports Barr's effort) got 2.15% of the vote in 2000, easily the best showing for anyone not named Ross Perot. From my perspective, to deny the perferred choices of 98+% of the electorate from appearing on the ballot is a pretty drastic remedy, and should only be applied in the event of a really atrocious sin. I don't think this comes close to measuring up to that, but we'll know what the Supremes think soon enough.

UPDATE Turns out they don't think the emergency stay was worth granting. On to Monday!

UPDATE: The Statesman and BOR have more.

Posted by Charles Kuffner on September 19, 2008 to The making of the President


The ruling duopoly of Republicans and Democrats have been using hard deadlines such as the August 26, 2008 to keep other, growing parties off the ballots for decades. To use the 2% showing of Nader as reason to keep McBama on the ballots is circular reasoning at best. Candidates kept off the ballot don't do well so therefore the people keeping them off the ballot should not be removed from the ballot. If support for the Republican and Democratic party is so vast, then the presence of their names on the ballot is irrelevant. Their slate of presidential electors will win regardless.

This is about the rule of law and whether Texas has it.

The Democrats and Republications could have had their conventions in July so as to not compete against the Olympics.

The Libertarian, Green, and Constitutional parties had their convention in May, June and April; respectively. The main reason for such early conventions is so that volunteers for NAMED nominees can meet the the onerous petitioning and filing requirements of the ballot exclusion laws created by the Republican and Democratic parties.

What the R&D party is upset about is that turnabout is fair play, but they don't want to play fair and obey the clearly written law.

Posted by: John Washburn on September 20, 2008 8:40 AM
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