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Still no indies

Just a reminder that no matter who or what may be the flavor of the month, the deadline for filing as an independent candidate for President in Texas was last month.

Will not be on the ballot

Will not be on the ballot

If an independent presidential candidate wanted to get on the November ballot in Texas, at this point they would face sky-high hurdles — not the least of which being that the deadline has already passed. So someone like David French, a lawyer and writer rumored to be a prospect, would have to wage a costly legal battle against Texas’ ballot procedures, considered among the most challenging in the country for independent candidates.

“I think Mr. French would have a real, real hard time of doing it and would have to spend a lot of money,” said James Linger, an Oklahoma attorney who worked for Ralph Nader when he sued to get on the ballot in Texas in 2004. “Even if the deadline were moved back, I think he would be in a hard situation in a place like Texas.”

Ballot access in the Lone Star State has gotten more attention than usual during the 2016 presidential race as Republicans dissatisfied with their presumptive nominee, Donald Trump, contemplate an independent or third-party alternative. It was reported throughout Tuesday that French, a conservative lawyer from Tennessee, is considering running as an independent at the urging of Trump opponents such as Weekly Standard Editor Bill Kristol.

Even those sympathetic to the anti-Trump cause acknowledge French’s success would depend on overcoming many obstacles — including his ability to challenge procedures in Texas, whose May 9 ballot deadline was by far the earliest among all 50 states.


The May 9 deadline came and went in Texas without any candidates applying to run for president as an independent. To do so would have required 79,939 signatures, or 1 percent of the total votes cast for all candidates in the previous presidential election.

The next major deadline in Texas is June 23, which is when independent non-presidential candidates must apply for the ballot. Those filing under that deadline must have submitted a statement declaring their intent to run with the secretary of state’s office by Dec. 14, 2015.

At least one ballot-access expert, Richard Winger, believes the June 23 deadline is vulnerable to a legal challenge because, in his estimation, there is no state interest in making independent presidential candidates file 52 days before their non-presidential counterparts. That was a criteria established by Anderson v. Celebrezze, a 1983 case in which the high court struck down Ohio’s March deadline for independent presidential candidates.

“They have to come up with a state interest because this does harm voting rights,” said Winger, the editor of Ballot Access News. Noting the high court “has never given any comfort at all to supporters of early deadlines,” Winger estimated someone who takes Texas to court over its independent candidates deadlines would have a “75 percent” chance of prevailing.

See here for the background. The only thing that has changed since the May 9 deadline for filing as an indy (with the accompanying petition signature requirements) is the presence of a potential candidate. If you’ve never heard of David French – and honestly, why should you? – I recommend a quick look at what Roy Edroso and Martin Longman can tell you. Beyond that, as noted in the story Ralph Nader sued to get on the ballot in 2004 after failing to collect enough signatures to qualify. A federal court judge ruled that Texas’ ballot access laws were constitutional; this ruling was subsequently affirmed by the Fifth Circuit Court of Appeals. I don’t know why the odds of success for a lawsuit would be any better this year than they were in 2004, but I Am Not A Lawyer, so pay no attention to me. Of course, first French would have to actually declare his intention to run, and then he’d have to file a lawsuit, and all of that needs to happen in a fairly short time frame, so we return to my original premise: There ain’t gonna be no independent candidates for President on the ballot in Texas. Feel free to write in whoever you want, but don’t expect any more than that.

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