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Libertarian Party

A matter of timing

That’s the stated reason why SCOTX overturned the earlier decision that booted three Green Party candidates off the ballot.

The Texas Supreme Court in a new opinion Friday explained its decision to reinstate to the November ballot Green Party candidates who did not pay their filing fees, saying lower courts denied them the chance to resolve the issue while there was still time under the law.

[…]

Justices acknowledged the strain that adding last-minute candidates may put on county elections officials, who were just days away from sending out their first rounds of ballots before the court’s order was announced on Tuesday. The high court did not publish its opinion in the matter until Friday.

“We recognize that changes to the ballot at this late point in the process will require extra time and resources to be expended by our local election officials,” the opinion read. “But a candidate’s access to the ballot is an important value to our democracy.”

[…]

In the unsigned opinion handed down Friday, justices said Democrats challenging the validity of Green Party candidates failed to prove that the election law requires party chairs to declare candidates ineligible when they don’t pay filing fees, and that the 2019 law doesn’t include a deadline for paying them.

Justices also say the Third Court of Appeals should have given Green Party candidates a chance to pay their fees before declaring ineligible and tossed from the ballot.

See here and here for the background. The opinion is here, and Michael Hurta continues his Twitter thread on this here, with some replies from me at the end. We’re going to need to delve into the opinion, because it’s more nuanced than what this story gives, and also clarifies something else that I hadn’t realized I was confused about.

First, in stating that RRC candidate Chrysta Castañeda “failed to prove the Election Code clearly spelled out the duty of the co-chairs to declare the Green Party candidates ineligible for their failure to pay the filing fee”, SCOTX clears up something from the legal challenge to the filing fees that I had missed.

The court explained that section 141.041 does not set a deadline for compliance but that the requirements apply only to the candidates actually nominated at a party’s nominating convention generally held in March or April of the election year. Id. at ___. Candidates who intend to seek a nomination at a convention must file a notarized application in December before the convention. Id. at ___ (citing TEX. ELEC. CODE §§ 141.031, 172.023(a), 181.031–.033). The advisory, by requiring payment of the filing fee before the nominating convention, expanded the requirements in 141.041 from all nominated candidates to all candidates seeking nomination. Id. at ___. The court ultimately held that payment of the filing fee under section 141.041 was still required, but the court affirmed the trial court’s order temporarily enjoining the Secretary of State from refusing to certify third-party nominees on the grounds that the nominees did not pay a filing fee at the time of filing. Id. at ___.

We agree with the Fourteenth Court of Appeals that under section 141.041 only a convention-nominated candidate is required to pay the filing fee. See TEX. ELEC. CODE §141.041(a) (“[A] candidate who is nominated by convention . . . must pay a filing fee . . . .”). Therefore, we also agree that the Secretary of State’s advisory requiring payment of the filing fee at the time of filing an application is not required by, and indeed conflicts with, the Election Code. See id. Section 141.041 does not include a deadline for compliance, but as we explained in In re Francis, when an Election Code provision does not provide explicit guidance, we apply a presumption against removing parties from the ballot. 186 S.W.3d at 542.

I had not understood the distinction between mandating that all candidates who compete for the nomination must pay the fee and just mandating that the candidates who actually receive the nomination must pay it. I’m fine with that. The key to the decision here is the question about deadlines, and how much time the Green Party and its candidates were supposed to have to fix their failure to pay these fees (which as we know they claim are unconstitutional).

Castañeda presented a public record to the co-chairs showing that as of August 17, the Green Party candidates had not paid the filing fee. As previously noted, section 141.041 requires the filing fee but contains no deadline for its payment, see TEX. ELEC. CODE § 141.041, and the only potential applicable deadline in the Secretary of State’s election advisory conflicts with that provision. Hughs, ___ S.W.3d at ___. Strictly construing these sections against ineligibility, we disagree that the public document demonstrating that the Green Party candidates had not paid the filing fee as of August 17 conclusively established that they were ineligible. To be “eligible to be placed on the ballot,” the Green Party Candidates were required to pay the filing fee or file signature petitions. TEX. ELEC. CODE § 141.041 (emphasis added). The co-chairs did not have a ministerial statutory duty to declare the candidates ineligible, as the law did not clearly spell out their duty on August 17 when the candidates had not yet paid the filing fee such that nothing was left to the exercise of their discretion. See In re Williams, 470 S.W.3d at 821.

The court of appeals ordered the co-chairs to declare the Green Party candidates ineligible and take necessary steps to ensure their names did not appear on the ballot. ___ S.W.3d at ___. But the court did not address a deadline for payment, nor did it otherwise allow for payment of the fee. And under In re Francis, an opportunity to cure should be provided when a candidate could still comply with Election Code requirements. 186 S.W.3d at 541–42 (noting that an opportunity to cure complies with the purposes of the Election Code and avoids potential constitutional problems that “might be implicated if access to the ballot was unnecessarily restricted”). “The public interest is best served when public offices are decided by fair and vigorous elections, not technicalities leading to default.” Id. at 542. In the absence of recognizing a deadline for paying the filing fee or giving the candidates an opportunity to comply, the court of appeals erred in ordering the Green Party candidates removed from the ballot on August 19.

Emphasis in the original. The opinion cited an earlier case of a candidate who had turned in petition signatures to be on a ballot but failed to correctly fill out all the petition pages with information about the office he sought, and was tossed from the ballot as a result. On appeal, he was restored on the grounds that he should have been given the chance to fix the error before having the axe fall on him. Much as I dislike this opinion, I agree with that principle, and I don’t have a problem with it being applied here, though of course we can argue about what a reasonable amount of time should be to allow for such a fix to be applied. SCOTX left that question open, so if the filing fees are still in place in 2022 and the Libertarians and Greens are still resisting it, look for some judges to have to determine what sort of schedule should be applied to non-fee-payers, in an attempt to follow this precedent.

As I said, I don’t like this decision, but I can accept it. It didn’t immediately make me want to crawl through the Internet and slap someone. But let’s be clear about something, if SCOTX is going to appeal to higher principles in cases like this, which just happen to also align with the desires of the Republican Party, then I’d like to see some evidence that they will err on the side of the voters in a case that doesn’t align with the GOP. Like, say, the Harris County mail ballot applications case. What are you going to do with that one, folks? And please note, the clock is ticking. A decision rendered for Chris Hollins in late October doesn’t exactly mean anything. Let’s see where the SCOTX justices really stand.

The Green Party owes Ken Paxton a thank-you note

He did them a solid, that’s for sure.

Turns out it is easy being Green

In the legal fight to exclude minor party candidates from the November ballot, Republican Attorney General Ken Paxton took a flexible view of time and deadlines.

After the Texas GOP filed suit Aug. 21 to remove 44 Libertarians from the ballot for failure to pay a required candidate filing fee, Paxton told the Texas Supreme Court that there was plenty of time to pursue the challenge.

This week, however, Paxton told the same court that a Democratic bid to oust three Green Party candidates — filed four days before the unsuccessful GOP challenge — was begun much too late and needed to be overturned.

“The (Democrats’) dilatory conduct and unjustified delay in seeking relief imposed an undue burden on the Green Party officials,” Paxton told the court in a brief filed Monday.

[…]

[F]acing an Aug. 21 deadline to declare candidates ineligible, Democrats sued Aug. 17 to strike three Greens running for U.S. Senate, U.S. House and Railroad Commission.

The Austin-based 3rd Court of Appeals gave the Greens less than 48 hours to respond, then issued an Aug. 19 order declaring the three Green Party candidates ineligible for failure to pay the filing fee. The 2-1 ruling had two Democrats in the majority and one Republican dissenting.

The ruling drew the notice of Republican Party leaders, who quickly demanded that Libertarian leaders drop a long list of candidates for the same reason.

When those demands were rejected, Republican organizations and candidates asked the 3rd Court of Appeals to follow the precedent set in the Democratic challenge and order the Libertarians removed from the ballot.

But the GOP filed its challenge on Aug. 21, the deadline to declare candidates ineligible, and the appeals court tossed it out, ruling that there wasn’t time to hear from all parties and gather the necessary information before the deadline expired.

The GOP turned to the Texas Supreme Court, arguing that instead of challenging candidate eligibility under an expired deadline, it was challenging the Libertarians’ candidate applications as improper — giving them until Sept. 18 to seek court intervention.

Paxton, in a letter brief to the Supreme Court, agreed with the GOP interpretation of state election law.

“Under Texas law, there is still time for this Court to compel compliance,” Paxton told the court on Sept. 4.

The all-Republican Supreme Court disagreed, ruling Sept. 5 that the GOP and Paxton were looking at the wrong section of the Election Code on deadlines. The court concluded that the Libertarians could not be removed from the ballot because the GOP challenge was filed too late.

[…]

Then on Friday, the Green Party asked the Supreme Court to reinstate its three candidates, arguing that like the GOP, the Democrats relied on the wrong part of the Election Code, rendering their challenge void as well.

The court asked Paxton’s office for its opinion.

In Monday’s response, filed 10 days after arguing that the GOP had not acted too late in challenging Libertarian opponents, Paxton urged the court to reinstate the Green candidates because the Democrats waited too long to act and because the 3rd Court of Appeals engaged in a rushed process that didn’t give the Greens, other political parties and other candidates time to weigh in.

“The 3rd Court abused its discretion,” Paxton wrote.

The Supreme Court’s one-paragraph order to reinstate the Green candidates did not explain the court’s rationale.

See here for the background. We expect SCOTX to publish its opinion on this ruling today, so we may get some idea if it’s all a bunch of sophistry or if they can make a principled argument that the Greens were deprived of their right to respond to the Dems’ legal action in a timely manner, which was a part of the ruling against the GOP in the Libertarian purge attempt. That Ken Paxton was willing to be morally and conveniently flexible on the subject should come as no surprise, given everything we know about him and his character. The Republican Party of Texas has a longstanding willingness to help the Greens whenever they think it might benefit them. This time that support came from an elected official instead of a deep-pocketed donor. Whatever works.

There was a debate in the comments of the last post about ranked choice voting (RCV) being a solution to this kind of legal gamesmanship. The theory is that since the people who voted Green or Libertarian (or independent, or whatever else may have been on the ballot) would still be able to express their electoral support for whichever major party candidate they like as their backup selection, which in turn would reduce the incentive for the major parties to bump them off the ballot. The logic has merit, though the lack of RCV around the country means there’s no data to test that hypothesis.

In this case, the argument that had been made by both the Ds and the Rs is that the other parties’ candidates had violated the law by not paying the newly-mandated filing fees – you may note, the Dems did not challenge the three Greens who did pay their filing fees, just the three candidates who had not – and there is a long history of candidates being challenged because they failed to meet eligibility requirements. If the filing fee law continues to survive the lawsuits against it, and there are Greens and Libertarians who refuse to comply with it in 2022, I would fully expect them to be taken to court again, surely in a more expeditious fashion, and I would expect that even in an RCV-enabled world. This is a basic tool in the political toolbox, one that I would not expect to go away if the method of determining the winner of an election changes. That too is a testable question, and perhaps one day we’ll have an answer for it. For now, that’s how I see it.

SCOTX puts Greens back on the ballot

That sound you hear is my head spinning.

The Texas Supreme Court has ordered three Green Party candidates to be restored to the November ballot after Democrats successfully sued to remove them.

Last month, a state appeals court sided with the Democrats, who were seeking to kick the candidates off the ballot because they had not paid filing fees. The three candidates are David Collins for U.S. Senate, Katija “Kat” Gruene for Railroad Commission and Tom Wakely for the 21st Congressional District.

The Texas Green Party appealed the decision to the state Supreme Court, which ruled Tuesday that the secretary of state “shall immediately take all necessary actions to ensure these candidates appear on the” November ballot. The Supreme Court did not give its rationale, but said a full opinion was forthcoming.

It is the latest development in a spate of legal battles over third parties on the November ballot. At issue is a new requirement that third parties pay filing fees like Democrats and Republicans do. The law, passed last year by the Legislature, is the subject of multiple legal challenges, and many third-party candidates had not paid filing fees amid the pending litigation.

A state appeals court upheld the 2019 law last week.

While the Democrats were initially successful in booting the three Green Party candidates off the ballot, Republicans more recently failed in their bid to remove 44 Libertarians from the ticket for a similar reason. In rejecting the GOP effort earlier this month, the Supreme Court said the party waited too long to raise the issue.

[…]

It is crunch time for finalizing ballots across the state, with a Saturday deadline for counties to mail overseas and military ballots. The state’s most populous county, Harris County, wrote to the Supreme Court on Monday saying that “it is too late to make changes,” even if the court acted that day.

In an email sent to county election officials shortly after the Supreme Court’s ruling, the Texas secretary of state indicated that counties that had already sent out mail ballots would need to send a corrected version “as soon as possible.”

“The Supreme Court’s ruling and ballot change will not be an acceptable excuse for missing the [Sept. 19] deadline,” wrote Keith Ingram, the state’s director of elections. “That deadline must still be met.”

State law requires corrected ballots to include both a written notice explaining the change and instructions to destroy “defective” ballots that have not yet been returned to a county. A defective ballot returned to the county will be counted if a corrected ballot is not returned in time.

See here and here for the background on the Dems’ effort to boot those three Green candidates, and see here and here for more on the Republicans’ failed effort to boot the Libertarians. A fourth Green candidate had withdrawn from the ballot before all this started because he had voted in the Democratic primary this year.

My first reaction on seeing this news was that it was awfully late in the game for further changes to the ballot. Looking at the case filings, the writ was filed by the Greens on September 11, the Dems had till the 14th to respond, and the ruling came down on the 15th. I’ll have an opinion on the ruling when it is available, but until then all I can do is shrug. It is what it is. You can read this Twitter thread, which began with the original rulings in the two cases, for some more context. The Chron has more.

CD31 poll: Carter 43, Imam 37

Another interesting Congressional race poll.

Donna Imam

With less than two months to go until Election Day, an increasing number of eyes are looking toward Texas, where Republicans are fighting to keep their grip on the once-reliably conservative state.

There is perhaps no better sign of Texas’ shift toward Democrats than what’s happening in the state’s 31st Congressional District. The previously deep red district north of Austin has shifted dramatically in recent years, and a new poll obtained exclusively by COURIER shows incumbent Rep. John Carter (R-Texas) is vulnerable.

The poll, conducted by Public Policy Polling (PPP), found Carter leading challenger Donna Imam by only six points, 43-37 among 831 voters in the district. Libertarian Clark Patterson and Independent Jeremy Bravo tallied 10% of the vote combined, while 11% of voters remained undecided.

Imam performs particularly well with independent voters, leading Carter 44-28. She also appears to have significant room to grow, as 53% of voters said they were unsure whether or not they had a favorable opinion about her.

The poll also surveyed voters on the presidential race and found that President Donald Trump holds a narrow one-point lead (48-47) over Democratic nominee Joe Biden, a substantial shift from 2016 when Trump won the district 54-41.

[…]

While Democrats have set their eyes on several prizes across the state, the recent blue shift in the 31st has been particularly notable. Between 2002 and 2016, Carter won each of his elections by at least 20 points. But in 2018, Carter faced the fight of his career and narrowly edged out his Democratic challenger, MJ Hegar, by only three points. Hegar is now challenging Cornyn and finds herself down only 2 points in the district (48-46), according to the PPP poll.

You can see the poll data here. It’s a solid result in a district where Beto got 48.4% of the vote. Hegar ran just a shade behind Beto – he lost to Ted Cruz 50.5 to 48.4, while Hegar lost 47.6 to 50.6 – and this district has been on the radar for the DCCC (and for the Republicans, and for the national race-raters) from the beginning of the cycle. The problem has been finding a standout candidate, as there was a rotating cast of players in the primary, with nobody raising any money or making much noise until the runoff, when Imam finally started to edge forward. She still has to establish herself as a fundraiser – the DCCC is in town, but they’ve got plenty of fish to fry. I’ll be very interested in Imam’s Q3 finance report.

This poll is reminiscent of the polling in CD21, another near-miss district from 2018 with a similar demographic profile. In 2018, Joe Kopser lost to Chip Roy 50.2 to 47.6, Beto lost the district by a tenth of a point, and in 2016 Hillary Clinton lost it to Donald Trump 52-42. These latest polls have Biden up by one in CD21 and down by one in CD31, consistent with statewide polling that has Texas as a real tossup.

They key here has been the shift in voter preferences in Williamson County, which comprises a bit more than two-thirds of the district. Here’s how the Williamson County vote has gone in recent elections:


2012       Votes    Pct
=======================
Romney    97,006  59.4%
Obama     61,875  37.9%

Cruz      92,034  57.3%
Sadler    60,279  37.5%

Carter    96,842  60.9%
Wyman     55,111  34.6%


2016       Votes    Pct
=======================
Trump    104,175  51.3%
Clinton   84,468  41.6%

Carter   112,841  56.8%
Clark     74,914  37.7%


2018       Votes    Pct
=======================
Cruz      99,857  48.0%
Beto     105,850  50.8%

Abbott   112,214  54.1%
Valdez    90,002  43.4%

Patrick  101,545  49.2%
Collier   98,375  47.6%

Paxton    98,175  47.7%
Nelson   100,345  48.7%

Carter    99,648  48.2%
Hegar    103,155  49.9%

The story of 2018 was of the huge gains Democrats made in suburban areas like Williamson, but the thing here is that Dems gained about as many votes from 2012 to 2016 as they did from 2016 to 2018, with Republicans barely growing their vote at all outside of a couple of races. It wasn’t so much a shift as an acceleration, and it took WilCo from being on the fringes of competitiveness, where you could see it off in the distance from the vantage point of 2016 but figured it was still a few cycles away, to being a true swing district just two years later. If Dems can even come close to replicating that kind of growth in 2020, then CD31 is likely being undersold as a pickup opportunity. Obviously, the pandemic and the ambient chaos and pretty much everything else is a variable we can’t easily quantify. But the numbers are right there, so if CD31 does go Dem, we can’t say we didn’t see it coming.

One more thing: That 10% total for the Libertarian and independent candidates combined is almost certainly way too high. Libertarian candidates actually do pretty well overall in this district. The Lib Congressional candidate in 2012 got 3.7%, while a couple of statewide judicial candidates in races that also had a Democrat topped five percent. In 2016, the Libertarian in CD31 got 5.2%, with Mark Miller getting 7.1% in the Railroad Commissioner’s race. They didn’t do quite as well in 2018, however, with the Congressional candidate getting 1.9%, and the high water mark of 4.1% being hit in the Land Commissioner’s race. I’d contend that’s a combination of better Democratic candidates, with more nominal Republicans moving from casting a “none of the above” protest vote to actually going Dem. My guess is 2020 will be more like 2018 than 2016 or 2012, but we’ll see. In any event, I’d put the over/under for the two “other” candidates at five, not at ten. The Texas Signal has more.

State appeals court rules (mostly) against Libertarians in filing fee lawsuit

Here’s the story. It gets into the legal weeds, and I’m going to try my best to clear them out.

A state appellate court this week upheld a 2019 law that extended a requirement that candidates pay a filing fee or submit a petition to appear on the ballot to minor party candidates.

A district court found the fee was unconstitutional, siding with nine Libertarians who had sued, saying it was unreasonably burdensome. But the three-justice panel of Texas’ 14th Court of Appeals on Tuesday sided with the state, saying the plaintiffs did not make a strong enough constitutional argument to waive the secretary of state’s sovereign immunity to civil suits.

The law at issue, House Bill 2504, lowered the amount of votes a party needed to get in a statewide election to retain a place on the ballot. But it also added a requirement that candidates nominated at a convention — such as those in the Libertarian and Green parties — rather than through a primary had to pay a filing fee or gather petition signatures in order to be on the ballot. Previously, only major party candidates had to pay those fees.

The law “imposes reasonable and nondiscriminatory restrictions that are sufficiently justified by the State’s interest in requiring candidates to show a modicum of support to guarantee their names on the general-election ballot,” Justice Meagan Hassan wrote. “These are the same restrictions imposed on major-party candidates with respect to their participation in the primary election.”

The ruling Tuesday will not affect Libertarian candidates on the ballot this year.

There are a couple of active lawsuits challenging the new filing fee/petition signature requirements from HB2504, this one in state court which I had not blogged about before and a federal lawsuit that as far as I know has not had a hearing yet. I gave the state lawsuit a mention at the end of this post, mostly to note that the requirement to pay the filing fees was in effect in Texas despite the original order from Judge Kristin Hawkins, as it had been superseded by the state’s appeal. This lawsuit was partly about that now-not-in-effect injunction that enjoined the collection of the filing fees, partly about whether Secretary of State Ruth Hughs could be properly sued over this, and partly about the constitutionality of the fees in the first place. Let’s go to the opinion to try to unpack things.

The trial court granted Appellees’ request for a temporary injunction and enjoined Hughs from enforcing section 141.041 and the related advisory. The trial court also denied Hughs’s plea to the jurisdiction. Hughs filed separate appeals with respect to these decisions, which were consolidated into a single appeal.

For the reasons below, we affirm the trial court’s temporary injunction in part as modified and reverse and remand in part. We conclude the trial court erred insofar as it (1) denied Hughs’s plea to the jurisdiction with respect to Appellees’ claim challenging the constitutionality of section 141.041 and (2) improperly enjoined the enforcement thereof. We further conclude the trial court (1) properly denied Hughs’s plea to the jurisdiction with respect to Appellees’ claim challenging the advisory and (2) did not abuse its discretion by temporarily enjoining the advisory’s enforcement in part.

First, the appeals court denied SOS Ruth Hughs’ claim that she was immune to being sued for this. Harris County Judge Lina Hidalgo and then-Harris County Clerk Diane Trautman were also sued in their official capacities in the original petition, but they were not party to the appeal.

Second, the appeals court overturned Judge Hawkins’ ruling that the filing fees were unconstitutional. This was covered in the story and is the bulk of the opinion, which gets into some exceedingly mind-numbing detail. I consider myself a reasonably sophisticated layman for the purposes of reading and understanding legal writings, but boy howdy did my eyes glaze over in this part of the document. The bottom line is that the court concluded that the fees did not constitute an excessively burdensome requirement.

The matter of the injunction is where it gets a little tricky. Let’s skip ahead to the end, where that piece of business is addressed.

The trial court’s temporary injunction enjoins Hughs from enforcing section 141.041’s requirements at the time of the Advisory’s December 9, 2019 deadline or “at any other time.” We therefore construe the injunction to enjoin the enforcement of both section 141.041 and the Advisory.

We concluded above that sovereign immunity precludes Appellees’ claim challenging the constitutionality of section 141.041. Therefore, to the extent the injunction enjoins enforcement of section 141.041, the trial court lacked subject matter jurisdiction to enter the injunction.

Turning to the enforcement of the Advisory, […]

I’ll spare you a bunch of mumbo-jumbo to say that this means that while the law is constitutional and thus will not be enjoined, the enforcement of the law via the Secretary of State’s advisory that specified the minor parties’ need to collect filing fees or petitions was still in question. Let’s move up to the thrilling conclusion:

When injunctive relief is provided for by statute, we review the trial court’s decision on a temporary injunction application for an abuse of discretion. 8100 N. Freeway Ltd., 329 S.W.3d at 861. We do not substitute our judgment for that of the trial court and may not reverse unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonableness. Id.

As discussed above, we conclude that the Advisory conflicts with section 141.041 in part by impermissibly expanding the section’s requirements to all minorparty candidates seeking nomination at a convention. Considered in conjunction with Texas Election Code section 273.081, this conclusion supports the trial court’s finding that Appellees “are in danger of being harmed by a violation or threatened violation” of the Election Code. See Tex. Elec. Code Ann. § 273.081. Therefore, the trial court did not abuse its discretion by enjoining Hughs’s enforcement of the Advisory insofar as the Advisory required compliance with section 141.041’s fee/petition requirements by minor-party candidates who have not been nominated by the convention process. See 8100 N. Freeway Ltd., 329 S.W.3d at 861. Candidates who ultimately secured their party’s nomination as a result of the convention process, however, must comply with section 141.041. The injunction thus is erroneous to the extent that it relieves candidates nominated by convention of any obligation to comply with section 141.041 at any time. Therefore, we modify the injunction’s language by deleting the bolded text from the following paragraphs:

The Court ORDERS that Defendant Hughs is temporarily enjoined from refusing to accept or rejecting applications for nomination from
third-party candidates on the grounds that the applicant did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendants Hidalgo and Trautman are temporarily enjoined from refusing to accept or rejecting applications for nomination from third-party candidates on the grounds that the applicant did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendant Hughs is temporarily enjoined from refusing to certify third-party nominees for the general-election ballot on the grounds that the nominee did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendants Hidalgo and Trautman are temporarily enjoined from refusing to certify third-party nominees for the general-election election ballot on the grounds that the nominee did not pay a filing fee or submit a petition in lieu thereof at the time of filing or any other time.

The bolding is in the original, where the appeals court is quoting from Judge Hawkins’ order establishing the injunction. What this says is that the SOS and Harris County were enjoined from enforcing the filing fee requirements at the time that the candidates were being placed on the ballot, but not forever. These candidates were in fact required to pay the filing fee or collect the petition signatures – again, because the court ruled those requirements were legal. That was essentially the status quo when the Democrats successfully defenestrated the Greens, and it is my interpretation that this means the Libertarians would have been equally vulnerable to such a challenge if the Republicans had timely fashion.

All of this is my reading, and I Am Not A Lawyer, so those of you who know better please feel free to point out my idiotic errors. As to what happens next, the plaintiffs may appeal to the Supreme Court – they did not comment about that in the story – and of course there remains the federal challenge, though based on the Ralph Nader experience of 2004, I would not be holding my breath. Use the next year-plus between now and the 2022 filing period to figure out how to pay the fees or collect the signatures, that’s my advice. The Statesman has more.

Libertarians will stay on the ballot

Sorry, Republicans. You were too late after all.

The Texas Supreme Court on Saturday rejected an attempt by Republicans to kick 44 Libertarians off the ballot in the November elections.

Several Republican Party candidates and organizations had sued to remove the Libertarians, arguing they did not pay filing fees — a new requirement for third parties under a law passed by the Legislature last year. But the Supreme Court dismissed the suit, finding that the Republicans missed the August 21 deadline to successfully boot people from the ballot.

“The available mechanism for seeking the Libertarians’ removal from the ballot for failure to pay the filing fee was a declaration of ineligibility,” the court wrote in a per curiam opinion. “But the deadline by which such a declaration can achieve the removal of candidates from the ballot has passed.”

[…]

“Although the result in this instance may be that candidates who failed to pay the required filing fee will nevertheless appear on the ballot, this Court cannot deviate from the text of the law by subjecting the Libertarian candidates’ applications to challenges not authorized by the Election Code,” the court wrote.

See here, here, and here for the background. Let me quote from the intro to the opinion, which was released on the Saturday evening of a holiday weekend, to give you the basic gist of it.

Several Republican Party candidates and organizations seek to prevent 44 Libertarian Party candidates from appearing on the 2020 general-election ballot due to the Libertarians’ failure to pay the filing fee required by section 141.041 of the Texas Election Code. The Republicans concede that the statutory deadline to have the Libertarians removed from the ballot using a declaration of ineligibility passed on August 21. See TEX. ELEC. CODE § 145.035. They claim a later deadline applies to their petition, which they describe as a challenge to the Libertarians’ ballot applications governed by the deadline in section 141.034.

For the reasons explained below, the Election Code does not authorize the requested relief. Because the Libertarian Party nominates candidates by convention rather than primary election, its candidates’ applications are governed by chapter 181 of the Election Code, not by chapter 141’s procedures for challenging ballot applications. See id. §§ 181.031–.034. The relators invoke deadlines governing challenges to “an application for a place on the ballot” under chapter 141, but Libertarian Party candidates do not file such applications. Instead, they file “an application for nomination by convention” under chapter 181, which is a statutorily separate type of application governed by a separate set of statutes. Id. The Election Code does not subject the Libertarian candidates’ applications for nomination by convention to the procedures and deadlines for ballot-application challenges on which the relators rely.

Although the result in this instance may be that candidates who failed to pay the required filing fee will nevertheless appear on the ballot, this Court cannot deviate from the text of the law by subjecting the Libertarian candidates’ applications to challenges not authorized by the Election Code. The Legislature established detailed rules for ballot access and for challenges to candidates, and courts must carefully apply these rules based on the statutory text chosen by the Legislature. The available mechanism for seeking the Libertarians’ removal from the ballot for failure to pay the filing fee was a declaration of ineligibility. However, the deadline by which such a declaration can achieve the removal of candidates from the ballot has passed. The Election Code does not permit the relators to bypass that deadline by belatedly challenging the Libertarians’ applications. The petition for writ of mandamus is denied.

In other words, the novel attempt to say they are not challenging the candidates’ eligibility, which the Republicans conceded was too late, but were challenging their applications. The Supreme Court says that the law the Republicans were citing for this challenge doesn’t apply, and as such they’re out of luck. They did say in a footnote on page three that the Green Party could have sought Supreme Court review of that Third Court of Appeals order that forced their candidates off the ballot, and that an Attorney General amicus brief that took no position on that question was filed and considered for this case. They don’t seem to be saying how such a motion for review might have been received, just that it could have been done.

The bulk of the opinion is a tour through the part of the Election Code that governs parties that nominate their candidates by convention instead of by primary election, and how the Legislature treats the two kind of nominating processes differently. I gave it only a quick scan, because life is short and it is a holiday weekend, but feel free to dive in if that’s your jam. I will say, unless the Libertarians win one of their lawsuits challenging the new statute that mandates a filing fee, which was the basis for all of this legal wrangling, both Rs and Ds will be sure to do this again in 2022, since it is clear that they can knock Libertarians and Greens who don’t pay that fee off the ballot. The Ls and Gs may not like this law, but it’s in effect until further notice, and they know what the price of not following it is. And I have to imagine that somewhere, someone inside the Republican Party is getting reamed out by someone else for not being as on the ball about this as the Democrats were. They had a path to get what they wanted, they just didn’t take it in time. From where I sit, they were caught flat-footed and were out-lawyered by the Dems. That’s gotta sting a little for them.

More on the Republican attempt to defenestrate the Libertarians

From the Statesman:

Republican candidates and organizations are asking the Texas Supreme Court to remove 41 members of the Libertarian Party from the November ballots.

All of the Libertarians are ineligible to run, the GOP argues, because they failed to pay a newly created candidate filing fee or collect the necessary petition signatures to avoid the fee. But the Libertarian Party argues that the GOP, which could have challenged the candidates in December, waited too long to seek a court remedy.

“In the midst of pandemic, with life in general taking longer and facing more complications than usual, this Court should not exacerbate the problem by ordering counties across the state to stop preparing ballots so (the GOP) can strip Texas voters of their rights to vote for their chosen candidates,” the party’s leaders told the Supreme Court in a Tuesday filing.

[…]

The Republicans argued that they “fell in the trap” of challenging the eligibility of candidates, too late as it turned out, when they should have challenged the candidate applications as improper under a different section of the state’s election laws. Removing candidates based on improper applications can take place any time before Sept. 18, when ballots are mailed to members of the military serving overseas, the Republicans told the Texas Supreme Court.

Practically, however, the party acknowledged that the Texas secretary of state’s office has been arranging to print and distribute those ballots since Aug. 28, and its petition urged the Supreme Court to act as quickly as possible.

“Should this Court issue relief, the Secretary of State can take corrective action through early September,” said the petition, filed last Wednesday.

One day later, the court gave the Libertarian Party until 10 a.m. Tuesday to file a response. In that filing, party officials urged the court to avoid a rushed decision over a filing fee that many Libertarians see as an unconstitutional poll tax — particularly with two court challenges underway.

In the first, a state lawsuit filed by current and former party candidates in Harris County led to a court order blocking the fee as unconstitutional, though the ruling was halted by an appeals court that has yet to decide the case. The second involves a federal lawsuit by the party and several of its candidates that is set for trial next year.

“There are two constitutional challenges pending,” the Libertarians said. “In this context without the benefit of a more developed record, it would be difficult to say that ineligibility is conclusively established.”

See here for the background. My not-a-lawyer self thought the Republicans’ second attempt to knock off the Libertarians had some merit – certainly more than the clumsy and too late initial attempt had – but I also think the Libertarians make a good point in their response. The successful Democratic attempt to boot the Greens was based on well-established state law, and the facts were incontrovertible. The Republican challenge is novel, and the Libertarians are correct that the facts are still in dispute in this case. The ongoing federal litigation may sway the court as well, though that same appeal did not work for the Greens. We should get a ruling quickly, that much I feel confident saying.

Republicans go to Supreme Court to remove Libertarian candidates

If at first you don’t succeed, make up a new statutory deadline that you claim is the real date that matters.

About a week after Texas Democrats took several Green Party candidates to court and had them knocked off the ballot for failing to pay candidate filing fees, state and national Republicans are taking a similar case to the state’s highest civil court.

The Third Court of Appeals ruled against three Green Party candidates, but in the case of the Libertarians, the court dismissed the case as moot, saying it was no longer timely because the Aug. 21 deadline to declare a candidate ineligible had passed. The Republicans’ petition was filed Aug. 21.

This latest lawsuit filed by the Republicans names 40 Libertarian candidates, including two candidates for Texas Supreme Court, three for Texas Senate, 10 for Texas House and 25 for Congress.

The high court doesn’t have much time to take action: Friday was the deadline for the Secretary of State to certify candidates for the ballot.

“It’s a last-ditch effort on their part,” said Libertarian Party of Texas Chair Whitney Bilyeu. “They’re clearly desperate to do everything they can to remove voter choice at the polls to continue to have a one-party state here in Texas.”

The Libertarians say their candidates chose not to pay the fee for various reasons: some were taking a personal stand against a law they believe to be unconstitutional, some filed with the Secretary of State during a window of time when a judge had temporarily blocked the law, and others simply did not have the funds.

The filing fees in Texas are $3,125 for the U.S. House, $1,250 for Texas Senate and $750 for Texas House. Fifty-three of 70 Libertarian candidates paid theirs, state data shows.

Lawyers for the Republicans wrote that “timing is of the utmost importance” because “each day closer to September 19 — the date ballots are mailed — makes relief less practical.”

[…]

At the Texas Supreme Court, the Texas House Republican Caucus PAC and National Republican Congressional Committee, as well as 27 of their candidates and the GOP parties in Harris, Travis and Tarrant counties, are arguing that while the deadline to challenge eligibility may have passed, the deadline to challenge a candidates’ application is Sept. 18, the day before any mail-in ballots are sent out.

See here for the background. Patrick Svitek has a copy of the writ of mandamus, and honestly the “Relief Requested” section of the document, starting on page 18, explains why this is different in a fairly clear manner:

When a candidate fails to submit the required filing fee, there is confusion whether the appropriate challenge is to the application, under Chapter 141 or the eligibility under Chapter 145. The statute is less than crystal clear on this point, providing that “To be eligible to be placed on the ballot for the general election . . . a candidate must” pay a filing fee or submit a petition in lieu of a filing fee. TEX. ELEC. CODE § 141.041(a) (emph. added). At the same time, Chapter 141 provides that a challenge under this section, to provide the application, is not “a determination of a candidate’s eligibility.” TEX. ELEC. CODE § 141.034(b).

Adding to the confusion, courts and parties have intermingled these two challenges. See In re Davis. No. 03-20-00414-CV, 2020 Tex. App. Lexis 6663 (Tex. App.—Austin, Aug. 19, 2020, orig. proceeding) (granting mandamus relief challenging a minor candidate’s eligibility under Chapter 145 based on a candidate’s failure to pay the required filing fee).

Candidly, in the tight window to seek mandamus relief, many of the Relators fell in the same trap last week when they challenged certain Libertarian candidates eligibility under Chapter 145. The Third Court of Appeals denied that relief, finding it untimely.

But, as an analysis of the statutory scheme and case law bear out, a challenge to a candidate’s failure to submit the application with the required filing fee is a challenge arising under Chapter 141.

This distinction is important because challenges to application— versus eligibility—have different timing requirements. The Third Court of Appeals concluded that a challenge to eligibility must be completed by the 74th day preceding the election. On the other hand, a party can challenge a candidate’s application, including the failure to pay the filing fee “the day before any ballot to be voted early by mail is mailed . . .” TEX. ELEC. CODE § 141.032. That date is September 18.

Relators institute this new original proceeding under Texas Election Code Section 273.061, challenging the candidates’ ability to appear on the general election ballot for failure to submit the required filing fee under Chapter 141. As this is a new action, requesting new relief, this is an appropriate original jurisdiction proceeding before this Court. In this action, Relators ask the Court to compel the Libertarian Party of Texas and its Chair to comply with their statutory duty to reject these applications and to notify the Secretary of State of the rejection. If the Secretary of State is made aware of the rejection, it can take appropriate corrective action.

There is no question of timeliness in this challenge, as it can occur at any time prior to September 18. Practically, though, after August 28, the Secretary of State will begin to make arrangements to print and distribute ballots. Thus, timing is of the utmost importance. Should this Court issue relief, the Secretary of State can take corrective action through early September. However, each day closer to September 19—the date ballots are mailed—makes relief less practical.

Basically, what this claims is that the challenge that the Third Court rejected was made under the wrong law, given the timing. This challenge is made under a different law, where the timing is not an issue, at least not yet. Will it fly? I have no idea, but points for effort.

Two other items of interest here. One is that the long list of relators (again, that’s what you call a plaintiff in a case like this) here includes multiple Republican candidates, presumably all of whom have a Libertarian opponent. You may recall from the previous challenge that the absence of Republican candidates in affected races raised the question of standing. The Third Court did not address that issue because they ruled that the motion was moot, but the Supreme Court would surely have to address it in any race where the candidate was not among the relators. Two, the story says that 53 of 70 Libertarian candidates did in fact pay the filing fee, but the Republicans named 40 of them in this writ and claimed none of them paid the fee. Both of these facts can’t be true, so we’ll see what the court says. My guess is we’ll get an answer in short order.

Republicans try and fail to remove Libertarian candidates from the ballot

From Patrick Svitek:

The Third Court of Appeals decision is here. You may be wondering, why did this same court agree to boot three Green candidates off the ballot last week, for the same reason of not paying filing fees? A good question, with a straightforward answer in the opinion.

Basically, the key difference is timing. By state law, the deadline for withdrawing from the ballot is 74 days before the general election, which this year was August 21. The same date is also the deadline for removing an ineligible candidate’s name from the ballot. A candidate who has withdrawn, or been declared ineligible, or died after this date will still appear on the ballot. Recent examples of the latter include Sen. Mario Gallegos in 2012 and State Rep. Glenda Dawson in 2006. If the ineligible/withdrawn/deceased candidate wins the election (as was the case in those two examples I cited), there is then a vacancy for the office, because that person cannot take office, and thus there is the need for a special election to fill that vacancy.

How that matters in this case is that the plaintiffs (“relators” in Appeals Court-speak) waited too long to take action. The relators included the NRCC, the Republican Party of Travis County, and Rep. Van Taylor. As outlined in the Dem cases against the Greens, they asked via email the Libertarian Party of Texas to disqualify the candidates that didn’t pay the filing fee, and then followed that up with the filing to the Third Court. The problem was, they sent that email “late in the evening on Thursday, August 20”, and filed their mandamus petitions on the 21st (the NRCC in the morning, the Travis County GOP at 9:19 PM). That did not leave adequate time for the Libertarian Party to respond, and it also means that the legal deadline I just mentioned had already passed. Here’s the analysis of the case from the court’s ruling:

“The law is clear that a challenge to the candidacy of an individual becomes moot ‘when any right which might be determined by the judicial tribunal could not be effectuated in the manner provided by law.’” Brimer v. Maxwell, 265 S.W.3d 926, 928 (Tex. App.—Dallas 2008, no pet.) (quoting Polk v. Davidson, 196 S.W.2d 632, 634 (Tex. 1946) (orig. proceeding)). “If a challenge to a candidate’s eligibility ‘cannot be tried and a final decree entered in time for compliance with pre-election statutes by officials charged with the duty of preparing for the holding of the election,’ we must dismiss the challenge as moot.” Id. (quoting Smith v. Crawford, 747 S.W.2d 938, 940 (Tex. App.—Dallas 1988, orig. proceeding)).

The Texas Election Code provides that “[a] candidate’s name shall be omitted from the ballot if the candidate withdraws, dies, or is declared ineligible on or before the 74th day before election day.” Tex. Elec. Code § 145.035. However, “[i]f a candidate dies or is declared ineligible after the 74th day before election day, the candidate’s name shall be placed on the ballot.” Id. § 145.039. “If the name of a deceased, withdrawn, or ineligible candidate appears on the ballot under this chapter, the votes cast for the candidate shall be counted and entered on the official election returns in the same manner as for the other candidates.” Id. § 145.005(a).

Because relators waited to file their challenge to a total of 30 candidates until the last possible day this Court could grant the relief they seek, they made it impossible for the Court to obtain the information and briefing needed to afford due process and make a reasoned decision until less than 74 days remained before election day. Accordingly, even if this Court were to conclude based on the mandamus record that respondents have a statutory duty to declare the real parties in interest ineligible, their names would remain on the ballot and any votes cast for them would be counted. See id. §§ 145.039, .005(a); see also Brimer, 265 S.W.3d at 928 (holding that challenge to candidate’s eligibility for general election becomes moot when it cannot be tried and final decree entered in time for compliance with pre-election statutes); accord Smith, 747 S.W.2d at 940 (“This is true, even though the contestant may have good cause or grounds for the contest.”) (citing Cummins v. Democratic Exec. Comm’n 97 S.W.2d 368, 369 (Tex. App.—Austin 1936, no writ)). No order that this Court might enter would be effective to change this result. The Republican Party candidates’ only legally recognized interest in pursuing this mandamus is to avoid being opposed by an ineligible candidate—an outcome that we cannot, at this point, change.

In other words, if the Republicans wanted the Libertarians who didn’t pay the fee off the ballot, they needed to act sooner than they did, in order to meet the statutory deadline for removing those candidates’ names from the ballot and also to give them their due process rights to respond to the allegations. Because they waited as long as they did, the law was clear that the candidates’ names would remain on the ballot, even if they were indeed ineligible. If one of those Libertarians were to win, then (I presume, anyway) there could be a subsequent lawsuit over whether they could take office or not, but that would be a fight for another day. They snoozed, they lost, better lawyering next time.

One more thing, from a footnote to the analysis of the case:

We note that relators seek the same relief that was sought and granted in our recent opinion, In re Davis, No. 03-20-00414-CV, __S.W.3d__, 2020 WL 4931747 (Tex. App.—Austin Aug. 19, 2020, orig. proceeding). There, the petition for mandamus was filed four business days before the statutory deadline. To assure due process to respondents, this Court required responses in one business day, the same as it did here. And in In re Davis, the candidates themselves brought the challenge. While it is clear that “a candidate for the same office has ‘an interest in not being opposed by an ineligible candidate,’” Brimer v. Maxwell, 265 S.W.3d 926, 928 (Tex. App.—Dallas 2008, no pet.) (quoting In re Jones, 978 S.W.2d 648, 651 (Tex. App.—Amarillo 1998, orig. proceeding [mand. denied]) (per curiam)), respondents in this proceeding challenge whether political parties have an interest sufficient to confer standing to pursue mandamus relief. See Colvin v. Ellis Cnty. Republican Exec. Comm’n, 719 S.W.2d 265, 266 (Tex. App.—Waco 1986, no writ) (holding that “voter” who was opposing political party’s chair had no justiciable interest apart from general public and could not bring suit to enjoin candidacy of ineligible candidates). We need not reach this issue or the other legal and evidentiary arguments raised by respondents because we are disposing of the mandamus petitions based on mootness.

In other words, the question of who raised this challenge to the Libertarian candidates would have been an issue for the court to decide if the matter was not moot. I should note that the Brimer v. Maxwell case cited in that footnote was a reference to a challenge brought by then-Sen. Kim Brimer against Wendy Davis for the 2008 election. There had been a prior challenge made by some Fort Worth firefighters who alleged that Davis did not resign her Fort Worth City Council seat in time to file for the Democratic primary, but that case was dismissed because the court ruled those plaintiffs did not have standing. Brimer did have standing, but a district court ruled in Davis’ favor and a subsequent appeal was denied in part because it was way past the deadline to boot anyone from the ballot. You never know what tidbits of interest can lurk in these things. Anyway, that should be that for now.

Further thoughts on the Dems defenestrating the Green candidates

But first, the Chron story about yesterday’s legal action.

An appellate court on Wednesday blocked three Green Party candidates from the November ballot because they failed to pay candidate filing fees.

The candidates are David Collins, who was running for Senate; Tom Wakely, who was running for the 21st Congressional District, and Katija “Kat” Gruene, who was running for the Railroad Commission. The legal challenge was filed by their Democratic opponents: MJ Hegar, Wendy Davis and Chrysta Castañeda, respectively.

Two members of a three-judge panel of the court sided with the Democrats late Wednesday.

In their majority opinion, Justice Thomas Baker wrote that Wakely, Gruene and Collins are ineligible to appear on the ballot and compelled the Green Party to “take all steps within their authority” to ensure they don’t appear on the ballot. Due to the time sensitivity, Baker said the court would not entertain motions for a rehearing.

Chief Justice Jeff Rose dissented, saying providing no other explanation than that relief was “not appropriate based on the record before us.”

[…]

Davis’ campaign declined to comment. Hegar’s campaign did not respond to a request for comment. Randy Howry, Hegar’s lawyer in the Travis County case, referred questions about the impetus for the suit to attorney Alexi Velez, who was not available for comment.

Castañeda said the suit was a matter of fairness and that the timing was “based on the fact that the Green Party tactics only recently came to light.”

“I and my fellow candidates worked very hard to get on the ballot, and the statute is clear for all of us,” she said, adding that if the candidates didn’t want to or couldn’t pay the fee, they “could have acquired the signatures to petition to be on the ballot but chose not to do so.”

[…]

Wakely said it was clear to him that the last-minute pile-on of lawsuits was a coordinated strategy to eliminate competition. He added that it was curious that Libertarian candidates, including the one in his 21st District race, Arthur DiBianca, who also did not pay fees, were facing similar scrutiny.

Gruene added that the last-minute nature of the case also seems to be part of the Democrats’ strategy, as it leaves the Green candidates without many options for relief.

Charles Waterbury, a lawyer for the Green Party candidates, agreed that the timing seemed like a tactic and said Democrats should have raised the issue sooner.

“The Democrats waited so long for what I would argue is kind of an artificial emergency,” Waterbury said. “If this is such a huge deal, if keeping the juggernaut that is the Green Party off the ballot is so important, this is something they should have filed way before. … They know the difficulty faced by a party like the Greens is basically insurmountable.”

Gruene said she views the suit against her in the same way as Wakely.

“It’s a way to siderail a campaign to shift into dealing with legal matters instead of campaigning,” Gruene said. “The Democratic Party has always seen the Green Party as their opposition, and they, from 2001 until today, have used lawsuits as a way to bankrupt candidates, bankrupt parties and prevent voters from having the choice of voting for Green Party candidates.”

See here and here for the background. Let me begin by saying that yes indeed, the Democratic Party and the Green Party are opponents, by definition. Only one candidate in a race can get elected, so by definition every candidate in a given race is an opponent to the others. I have no patience at all for the whining of these candidates about how mean the Democrats are being to them because I am old enough to remember the 2010 election, in which deep-pocketed Republican backers paid hundreds of thousands of dollars to help Green candidates get on that year’s ballot, an act of charity that the Green Party was only too happy to accept. Those Republicans did that with the intent of making it just a bit harder for Bill White to beat Rick Perry in the Governor’s race. It turned out they needn’t have bothered, but that wasn’t the point. So please spare me the hand-wringing, and pay the filing fee or collect the petition signatures as long as that is required by law, or face the consequences of your actions.

Along those same lines, I respectfully disagree with RG Ratcliffe:

I have never voted for the Green Party and never will, but it is really chickenshit of Texas Democrats to complain about voter suppression and then try to suppress the choices of voters who want to cast ballots for candidates of a party with ballot access over a filing fee the party candidates did not have to pay until this year. And this is about more than a few candidates, this is about denying the Greens ballot access in the future.

I don’t agree that challenging candidates who did not follow the law as written – and please note, a couple of the Green candidates did pay the filing fee, so it’s not that they all shared this principle or all lacked the ability to pay – is in the same universe as passing discriminatory voter ID laws, refusing to expand vote by mail in a pandemic, aggressively pursuing felony prosecutions against people who made honest mistakes (two words: Crystal Mason), but I’ll allow that filing these motions to oust the Greens is not exactly high-minded. To respond to that, let me bring in Evan Mintz:

Here’s an important lesson: Hypocrisy in politics isn’t a bug. It’s a feature. There is no grand umpire or arbiter who punishes elected officials for inconsistency (besides the voters, and they usually don’t mind). Politics isn’t about truth; it’s about power. If past positions get in the way, change them.

I’d say that’s a lesson they don’t teach you in school, but actually they do. Rice University graduate student Matt Lamb told me it’s the first thing he teaches students in his Introduction to American Politics class: “Politics is about power.”

It’s the power to implement an agenda, impose one’s own morality on others, or distribute resources. It’s the reason people try to get elected in the first place.

Texas Democrats must’ve missed that class, because for the past 30 years or so they’ve acted as if noble intentions alone are enough to merit statewide office. Uphold the process. Act professionally. Do the right thing. Party Chairman Gilberto Hinojosa said essentially that in a May conference call with journalists in response to the governor’s plan on ending COVID lockdowns. “The Democratic Party is not looking at the response through a political lens,” he said. “We’re looking at what is good for the public. If that costs us votes, so be it.”

There’s a slight flaw in Hinojosa’s plan: You can’t pursue the public good if you don’t get the public vote.

I’d say it’s clearly the case that the Democrats took legal action to remove these Green Party candidates from the ballot for the same reason why the Republicans paid money in 2010 to help put them on the ballot: They want to increase the chances that their candidates can win these elections. Obviously, there are limitations to this. One need only look at the utter degradation of the Republican Party and the principles it once held on subjects like free trade and personal morality under Donald Trump, where the only principle they now have is winning at all costs for the sake of holding onto power, to understand this. I’d like the Democratic candidates I support to hold principles that I support as well. But you also have to try your best to win elections, because as I’ve said way too many times over the past decade-plus, nothing will change in this state until the Dems start winning more elections. If that means I have to live with the knowledge that we booted some Green Party candidates off the ballot for the purpose of maybe upping our odds some small amount, I’ll do that. If you want to judge me for that, you are free to do so. I can live with that, too.

More challenges to Green Party candidates

From Patrick Svitek:

As we know, the Green Party candidate for Supreme Court Chief Justice withdrew following a challenge that alleged he had violated election law by voting in this year’s Democratic primary. The writ makes the following allegations:

1) The passage of HB2504, the same bill that lowered the statewide vote threshold from five percent to two percent for third parties to automatically qualify for the ballot also mandates a filing fee (or collection of petition signatures), with the same fees or petition requirements for third parties as for Dems and Republicans.

2) Candidates Wakely and Gruene did not pay the filing fees or collect the petition signatures, and the Green Party was aware of this. Indeed, the Green Party specifically stated in their April newsletter that some of their candidates did pay the filing fee while others (including Gruene, Wakely, the already-withdrawn Waterbury, and Senate candidate David Collins, who for whatever the reason was not named in this mandamus) did not.

3) Both the Greens and the Libertarians filed lawsuits alleging that the filing fee was illegal for them, since the idea of the fee was to help pay for the primary elections, which they don’t have. The Libertarians won a temporary injunction against the fee in December, but that was put on hold by the Fourteenth Court of Appeals, and as of today the filing fee is still in effect. (This had caused some confusion for the Ls and Gs, and I have no idea how many other candidates there may be in this particular boat.)

4) Because of all this, the Green Party was required to disqualify these candidates, and since they did not, the Dems are asking the Supreme Court to do so. They are asking via mandamus because Friday the 21st is the statutory deadline for candidates to be included or excluded from the November ballot.

So we’ll see what happens. In theory, I’ll have an update to this by the weekend. The Libertarians’ lawsuit over the legality of the filing fees is still ongoing, it just won’t be resolved in time for this election. Two side notes of interest that I discovered while writing this: One, Katija Gruene also tried to file for HD51, but was not allowed to file for two different offices by the SOS. Pretty sure it’s clear in state law that’s a no-no. Also, a candidate who had applied to run for HD45 was disqualified by the Greens at their convention because he had voted in the Dem primary. Just like Charles Waterbury, except I guess he was up front about it. So there you have it.

UPDATE: Apparently, there was more than one effort going on.

A Travis County judge issued an order Wednesday that temporarily blocked two Texas Green Party candidates for Congress from appearing on the November ballot.

The 14-day temporary restraining order was granted after Democratic Senate candidate MJ Hegar, joined by two national Democratic organizations, argued that her Green Party opponent, as well as a Green candidate opposing Democrat Wendy Davis, should not be placed on the ballot because they failed to pay a candidate filing fee as required by a new state law.

District Judge Jan Soifer’s order blocked the Texas secretary of state’s office from certifying David Collins, the Green candidate for U.S. Senate, and Tom Wakely, running for U.S. House District 21, to appear on the Nov. 3 ballot. Both candidates were “indisputably ineligible” to appear on the ballot, Soifer said.

Soifer, who was head of the Travis County Democratic Party before becoming a judge, also set an Aug. 26 hearing to determine if the Democrats’ request for an injunction should be granted.

[…]

Hegar’s challenge was one of two that Democrats had recently filed in state courts seeking to keep Green Party challengers off the ballot over failure to pay the fees.

Davis, running for the House seat held by U.S. Rep. Chip Roy, R-Hays County, and Chrysta Castañeda, running for the Railroad Commission, filed an emergency petition Monday asking the Austin-based 3rd Court of Appeals to issue an order blocking their Green Party opponents from the ballot.

Hegar, seeking to unseat U.S. Sen. John Cornyn, R-Texas, also joined that effort Wednesday. The appeals court has not yet ruled on the request.

Green Party candidates are generally believed to take votes that would otherwise go to Democrats.

The Green Party acknowledges that its candidates – Collins, Wakely and Katija Gruene for railroad commissioner – did not pay the filing fee or collect the needed number of petition signatures to avoid the fee.

But the party believes the fee, as it applies to third parties, is unconstitutional and improper, said Laura Palmer, Green Party co-chair.

Wow. I had wondered about Collins, given that he wasn’t mentioned in the mandamus request. If all of these motions succeed, the Greens will end up with no statewide candidates, one Congressional candidate (in CD36), one State Senate candidate (SD26), and two State House candidates (HDs 92 and 119). That’s not a lot, but even if the Greens prevail they’d still only have seven total candidates on the ballot. Seems like maybe there’s a bigger issue than the filing fee here, but maybe that’s just me.

UPDATE: And here’s a Trib story by Patrick Svitek with further information.

On Wednesday, both a Travis County district judge and a state appeals court blocked the Green Party nominees for U.S. Senate and the 21st Congressional District from appearing on the ballot. The Austin-based 3rd Court of Appeals additionally forced the Green Party nominee for railroad commissioner off the ballot.

Earlier this week, it surfaced that a Green Party contender for chief justice of the Texas Supreme Court had withdrawn after the Democratic nominee questioned his eligibility.

The Democrats are largely targeting Green Party candidates because they have not paid filing fees — a new requirement for third parties under a law passed by the Legislature last year. The filing fees were already required of Democratic and Republican candidates. The new law is being challenged by multiple lawsuits that remain pending, and the Green Party of Texas has been upfront that most of its candidates are not paying the fees while they await a resolution to the litigation.

[…]

The rulings Wednesday came in response to lawsuits in two different courts that involved some of the same candidates. The Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee and the Democratic nominee for U.S. Senate, MJ Hegar, had sued in Travis County district court to disqualify the Green Party nominees for U.S. Senate, David Collins, and for the 21st District, Tom Wakely. Meanwhile, Hegar had joined the Democratic nominees for the 21st District, Wendy Davis, and for railroad commissioner, Chrysta Castañeda, to seek an ineligibly ruling for their three respective Green Party candidates before the 3rd Court of Appeals.

In the appeals court’s opinion, Justice Thomas Baker ordered the Green Party of Texas to declare their three candidates ineligible and do all they can to make sure they do not appear on the ballot. Baker said the court would not accept motions for rehearing, citing the “time-sensitive nature of this matter.”

In the Travis County district court decision, Judge Jan Soifer said her order is in effect for the next two weeks. However, she scheduled a hearing for Aug. 26 — two days before the state’s ballot certification deadline — where she could reevaluate the decision.

Four things: One, as of these rulings we are now at the point I mentioned earlier, where there are no statewide Green candidates. Two, this may moot the mandamus request to the SCOTX. Three, apparently I was wrong earlier, because August 28 is the deadline for party nominees to be certified for the ballot. August 21 is the deadline to withdraw. And finally, that strategy of not paying the filing fees while the lawsuit over filing fees carries on, even though there is no injunction stopping the filing fees, sure does not appear to have worked out well for the Greens.

Green Party candidate for Supreme Court withdraws

It’s not an election without a bit of ballot drama.

Judge Amy Clark Meachum

Charles Waterbury, the Green Party candidate for Texas Supreme Court chief justice, has dropped out of the race after an opponent questioned his eligibility to run.

Waterbury’s withdrawal notice was submitted to the Texas secretary of state’s office Monday and notarized Friday, the same day his Democratic opponent, Amy Clark Meachum, sought a court order declaring his candidacy invalid.

Meachum’s emergency petition to the Supreme Court, the same body she hopes to join, argued that Waterbury is prohibited from appearing on the ballot as the Green Party nominee because he voted in the March 3 Democratic primary.

State law prohibits candidates for state or county office from representing one political party in the general election if they voted in another party’s primary in the same election cycle.

Laura Palmer, co-chair of the Green Party, criticized the petition, saying party officials were given only one day to respond to allegations that Waterbury was ineligible to run and that Waterbury decided to withdraw on Friday.

“The filing is moot, baseless and harassing,” Palmer said.

But Meachum’s lawyer, Brandi Voss, said Monday that the Supreme Court petition was filed because of tight election deadlines after Green Party officials did not respond by a 2 p.m. Friday deadline. A candidate’s name can be omitted from the ballot up to the 74th day before an election, which is this Friday for the Nov. 3 general election, according to Meachum’s petition.

I’m not sure what the timing of all this is. The Greens (and the Libertarians) nominate by convention, and Waterbury was not listed as a candidate as of April 18, when the party confirmed seven other nominees. He was listed on their July newsletter, so somewhere in there he must have been confirmed. Once he was known to be a candidate, someone had to notice that he had cast a Democratic primary vote, and then whatever correspondence leading up to the SCOTX emergency petition had to happen. It’s plausible this could have all taken place on a compressed timeline.

This is also one of those situations where I don’t have a whole lot of sympathy for the candidate who’s been booted off the ballot. Waterbury has run for statewide office before – he was a Green nominee for SCOTX in 2016 and 2014 and probably before that as well but I stopped looking – and so presumably had a passing familiarity with the rules. As with candidates who screw up their ballot applications, it’s not an onerous burden to get it right. All he had to do was not vote in another party’s primary, the same standard to which I as a precinct chair am held. He had one job, and he blew it.

The Libertarian Party has a full slate of candidates, including one for Chief Justice of the Supreme Court, if that sort of thing interests you. Losing Waterbury is a blow to the Greens as a whole, because they need to break two percent in a statewide race in order to ensure future ballot access, and with Waterbury out they only have two others running statewide, David Collins for Senate and Katija Gruene for Railroad Commissioner. With all due respect to Collins, that isn’t happening for them in the Senate race – I mean, the Green candidate for Senate in 2014 got all of 1.18%, and that was with a lousy Dem candidate and with the Green being a Latina (as I have noted before, Latinx third party candidates tend to do better than non-Latinx third party candidates). It is doable in the RRC race, as Martina Salinas cleared 2% in 2014 and 3% in 2016, though in that latter race the major party candidates were the unqualified hack Wayne Christian and perennial candidate Grady Yarbrough. It might be tougher this year, and with turnout expected to be a lot higher, the bar is raised further. It’s not that Waterbury was likely to meet this threshhold – he got 1.23% in 2016, and 0.75% in 2014 – but at least he represented another opportunity. So much for that.

The fifty percent challenge

An interesting point from Amy Walters.

President Trump is at the most precarious political moment of his presidency. Or at least, the most precarious since the summer and fall of 2017 when, in the wake of Charlottesville, the failure to repeal Obamacare, and escalating tensions with North Korea, the president’s approval ratings were mired in the mid-to-high 30s. It was only the success of the tax cut bill at the end of 2017 that brought Trump’s approval ratings back into the 40s, where they’ve remained ever since.

Today, his overall job approval rating sits at 41 percent. Not as bad as 2017, but certainly a dangerous place to be this close to re-election. Of course, this has been a consistent pattern with this president. Like a hammer which only knows how to bash a nail, Trump has one speed. He has never been interested in broadening his base — only in mobilizing it and growing it by targeting and turning out as many Trump friendly non-voters as possible. In states like Wisconsin, Pennsylvania and Michigan, where non-voters are more likely to be white and working class, the theory is that Trump can win by expanding the pool of Trump partisans, rather than trying to win back (or win over), more traditional and frequent voters.

As such, his ability to win re-election is centered on him being as close in his job approval ratings as his popular vote showing in 2016. The closer he sits to 46-48 percent job approval rating in October, the better chance he has to squeak out another narrow Electoral College win. But, when he gets much below 45 percent, his path to Electoral College victory gets more and more narrow.

[…]

Lots of folks short-hand the results of the 2016 election by highlighting Trump’s margin of victory over Clinton instead of his actual vote share. For example, hearing that Trump carried Iowa by 9 points sounds impressive, until you learn that he did so while taking just 51 percent of the vote. Clinton underperformed Obama’s 2012 vote share in more states than Trump over-performed Mitt Romney’s share of the vote. And, in 2018, GOP gubernatorial candidates in Ohio, Florida, and Iowa all took mostly the same percent of the vote Trump did in their states two years earlier. In Ohio, for example, Trump took 51.3 percent of the vote; two years later, Mike DeWine took 50.4 percent.

That’s why it’s more important than ever to understand if Trump’s vote share in 2016 was his ceiling, or whether he has room to grow.

Let’s take this idea and apply it to the data we have for Texas. Since the March primaries, in which Joe Biden effectively clinched the nomination, there have been ten public polls of our state:

UT/Trib, April 25
DT/PPP, April 29
UT-Tyler/DMN, May 3
Emerson, May 13
Quinnipiac, June 3
PPP/TDP, June 4
PPP/PT, June 23
Fox, June 25
UT/Trib July 2
PPP/Emily’s List, July 2

All of them included an approval question on Trump in addition to the horse race question, though in a couple of the polls I really had to hunt through the data to find that exact question. Here’s how the approval numbers for each poll stack up against the “vote for” numbers:


Poll    Approve   Vote
======================
UT/TT        49     49
DT/PPP       46     46
UTT/DMN      45     43
Emerson      46     47
QU           45     44
PPP          46     48
PT/PPP       48     48
Fox          50     44
UT/TT        46     48
PPP          46     46

Avg        46.7   46.3

With the exception of the Fox poll (in which the “disapprove” number was 48 for Trump), the approval number and the “vote for” number are very close. What that suggests, at least if you agree with Walters’ thesis, is that Trump seems to have a ceiling on his support, which in Texas you may recall was only 52.2% of the vote in 2016. Trump’s margin of victory in Texas in 2016 was as large as it was in part because a significant portion of the vote went to other candidates. That’s usually not the case in presidential races here, as we see from the past four races in Texas:


Non-two-party vote totals

Year    Total
=============
2004    0.67%
2008    0.85%
2012    1.45%
2016    4.52%

Of course, in the three elections before that, Ralph Nader (2.15% in 2000) and Ross Perot (22.01% in 1992, 6.75% in 1996) had a much bigger effect. My point here is simply that the “none of the above” options this time around are much less known and thus much less likely to draw significant levels of support. That makes Trump’s struggle to get near (let alone over) fifty percent in Texas that much more urgent.

Now just because people don’t like Trump doesn’t mean they won’t vote for him, or that they will vote for Joe Biden. Biden does better than Trump overall in approval numbers, and unlike 2016 when Trump won a large majority of the people who disliked both of the major party candidates, Biden is dominating that vote this year. Still, he has a lower overall “vote for” number than Trump does, and as folks like G. Elliott Morris document, there are many dimensions to this question, and the underlying basics still favor Trump in our state. The big picture is that we’re in a close race here, and it won’t take much more slippage on Trump’s part to make Biden a favorite. It also won’t take much of a bounce on Trump’s part to put him firmly in the driver’s seat. For now, it’s close, and it will likely stay that way.

That’s a weird definition of “thriving”

I have three things to say about this.

Surrounded by fellow Libertarians during a 2018 election night watch party at a rented Airbnb in Fort Worth, Eric Espinoza, who was running for state Rep. Jonathan Stickland’s seat, saw a Facebook message notification pop up on his phone.

“‘It’s people like you who are preventing other candidates from winning,’” he recalls the message saying, though he doesn’t recall which candidate the sender supported.

“I was like, ‘Hey, guys, look — I think I finally made an impact,’” Espinoza remembers saying, as he passed his phone around to others in the crowded living room.

“That to me was like, OK, cool, I was able to affect something so much that somebody who knows nothing about me, and nothing about why I ran, blames me for somebody losing — when it’s not the votes. It’s not that I took votes from them; it’s that people didn’t want to vote for that person, and they had a better option.”

Republicans and Democrats alike will blame third-party candidates for siphoning votes from traditionally two-way races. Espinoza not only took votes that might have gone to Stickland, a Republican, but he had more votes than Stickland’s margin of victory. Stickland beat his Democratic challenger by fewer than 1,500 votes, and Espinoza, in third place, had racked up more than 1,600.

It’s still rare for third-party candidates to capture enough votes to potentially sway an outcome — in the past three general elections, there have been just six such instances, according to a Hearst Newspapers analysis. But the number is growing, in a sign of tightening Texas elections.

[…]

A year after some of the most competitive state-level races in decades, Texas Republicans moved to make it easier for third-party candidates to receive and maintain a spot on the ballot. In doing so, they returned ballot access to the Green Party after it lost it following the 2016 election.

“Maybe Republicans are just kind of viewing this as, either you could call it an insurance policy or maybe it’s a way to subject the Democrats to things they’ve been subjected to on the part of the Libertarians,” said Phil Paolino, an associate professor of political science at the University of North Texas who has studied the effect of third parties on presidential races.

As elections get tighter, Paolino said, “you might see a few more races where third-party candidates are able to cover the margins — whether it’ll have the effect of altering the results is a big question.”

1. I’ve said my piece about third party voters. I will add that in 2018, the last year we’ll get this statistic, 0.49% of all straight party votes in Harris County were straight party Libertarian. That continued an upward trend in the off-year elections, which has come to an end thanks to the end of straight ticket voting.

2. Along those same lines, I’ve also said that I’m not particularly worried about the Green Party effect in Texas. Among other things, Green Party candidates just don’t get that many votes, and there are very few of them in non-statewide races. And as Professor Paolino notes, we don’t know that much about what might have happened in a race won with a non-majority due to the presence of one or more third-party candidates in the counterfactual event where they hadn’t been present. Maybe someday the poli sci professionals will take a crack at that, but until then we’re all just guessing.

(This is usually the point at which someone chimes in to remind me of the merits of ranked choice voting, which would provide a measure of what third party voters would have done if there had been only two choices. This is also the point at which I remind everyone that we don’t have ranked choice voting, and there is no prospect of getting anything like it in the foreseeable future. This is just a restatement of the “but what if there had been only two candidates” hypothetical.)

3. I dunno, when I read a story about a political party “thriving”, I imagine it’s going to be about how that party is winning more elections, or at least competing more strongly in elections where they had not been before. This story is about how one party is thriving in a way they hadn’t been before, it’s just that the party in question is the Democrats. I don’t see what that has to do with the Libertarians, but maybe that’s just me.

I’m not that worried about the Green Party effect in Texas

It’s not nothing, but it’s unlikely to be much.

Texas House Bill 2504, passed along party lines by the state’s Republican-controlled Legislature in May and signed into law by Republican Gov. Greg Abbott in June, lowers the threshold that minor political parties — defined in the law as parties that nominate by convention, as opposed to by primary — must meet to have their candidates appear on the ballot.

Under the new law, a third party’s candidates can qualify to appear on the ballot if any one of them got 2 percent of the vote in a statewide race in the last five elections. Previously, a third party’s candidates earned a spot on the ballot if any one of them won 5 percent of the vote in any of the most recent statewide elections.

The law also requires minor parties to pay a filing fee to ensure their candidate actually appears on the ballot — or collect the required amount of signatures under existing Texas ballot access laws within a certain amount of time. (For 2020, under state statute, the number of signatures would be more than 83,000, the equivalent of 1 percent of the total votes cast in the last governor’s race). Previously, filing fees had only been required for the two major political parties.

Republican supporters of HB 2504 say it bolsters the electoral system by both making it easier for smaller parties to have access to the ballot and by evening the playing field for such access.

But a far greater number of critics — including political scientists, Democratic Party and progressive strategists, as well as the two most prominent third parties in Texas — say the bill is designed to pull votes from Democratic candidates by making it easier for Green Party candidates, who are more likely to attract disaffected Democratic voters, to appear on the ballot.

The result could prove to make a defining difference in a handful of closely watched races in an increasingly purple Texas, including its U.S. Senate race where Sen. John Cornyn is up for re-election, a number of state House races and possibly even the presidential race — although Green Party presidential candidate Jill Stein won 0.8 percent of the vote in 2016 and only 0.3 percent in 2012.

“When you hear about Republicans trying to get Green Party candidates on the ballot, it really makes you wonder what’s going on. Because, obviously, they’re not aligned — today’s GOP is not engaged at all with issues dear to the Green Party,” said Paul Brace, a political science professor at Rice University, in Houston, who specializes in state politics. “And the reality is that allowing the Greens on the ballot helps Republicans, and so there’s good reason to be cynical about this.”

Most of what I would have to say in response to this I said in this piece, where I discussed HB2504. I’ll add two things to that here. One is that third party voters in a given race have, I believe, an assortment of reasons for doing what they did. One conclusion I drew from that is that downballot statewide candidates – both Republicans and Democrats – would probably benefit from more resources being invested in their races. Republicans have had a very strong brand in Texas this century, though there are signs it is weakening. Democrats have a chance to improve their brand, and if they do I believe they’ll be better positioned to retain voters who might have strayed to a Libertarian or Green candidate in previous elections.

The other thing is that the real issue with third party candidates – and independents, and to a much smaller degree write-ins, too – is that they enable a situation where someone can win with less than a majority of the vote. If someone can get to the magical fifty percent plus one, then who cares if the ballot also included Libertarians, Greens, Bull Mooses, or the Very Silly Party. When a candidate does win with just a plurality, as I said above it’s often hard to determine what the “other” voters were thinking, or what they might have done in a two-person race. I get the conventional wisdom that making it easier for Greens to qualify is likely to benefit Republicans, if it benefits anyone. I certainly believe that the Republicans believe that, and passed this bill for that reason. We are in a situation where control of the State House could come down to one race, and there are certainly going to be plenty of close ones this cycle. I don’t dismiss the possibility that we’ll all be cursing the fates and the Greens next November. But I’m also not going to over-value it, either. If we Dems do our jobs, we’ll maximize our returns. That’s the best way to think about it.

Libertarians and Greens sue over the petition process for ballot access

We’ll see about this.

Mark Miller

Ahead of the 2020 election cycle, a group of Texans, along with a number of nonmajor political parties, have sued the secretary of state’s office, alleging that Texas election law discriminates against third-party and independent candidates vying for a spot on the general election ballot.

In a lawsuit filed Thursday in Austin, plaintiffs argued that current state law would give nonmajor political parties in 2020 just 75 days to obtain over 80,000 valid signatures to gain ballot access — and that the cost of doing so could cost more than $600,000.

Currently, third parties like the Green Party and the Libertarian Party can secure a spot on the general election ballot by either having at least one candidate who wins more than 5% of the vote in a statewide race during the previous election cycle, or by collecting a certain number of required signatures. That 5% threshold will soon be lowered to 2% of the vote in one of the past five general elections once a measure that passed the Texas Legislature this year takes effect Sept. 1.

Candidates unaffiliated with a political party, meanwhile, are allowed access to the general election ballot as long as they file the required paperwork and gather a certain number of signatures, which depends on which office they’re seeking.

For both third-party and independent candidates, signatures must come from registered voters who did not vote in either the Republican or Democratic primaries or participate in another party’s convention that year.

“Collecting signatures by hand is inherently time-consuming, labor-intensive and expensive,” Mark Miller, a plaintiff in the case and a two-time Libertarian candidate for Texas Railroad Commission, said in a news release. “And collecting 80,000-plus valid signatures in the limited time allowed under Texas law is all but impossible without spending hundreds of thousands of dollars to hire paid petition circulators.”

In the lawsuit, plaintiffs suggested that Texas could modernize its signature petition procedure to help alleviate the burden they say has been placed on them. Plaintiffs pointed to Arizona, which they said has a secretary of state who recently implemented an online platform to allow voters to sign nomination petitions electronically — instead of in person and on paper.

Let me start by saying that if the minor parties win the right to collect electronic petition signatures so their candidates can get on the ballot in a state where electronic voter registration is illegal, that will be infuriating. The latter is by far the bigger affront to democracy.

Before I get to the main part of my analysis, let me add some more details about this from the Statesman.

State law offers three paths for candidates to land on the general election ballot:

Political parties that received at least 20 percent of the vote in the previous election for governor nominate their candidates for state and county office and the U.S. Congress via primary elections, with the winners advancing to the general election. “Since at least 1900, only the Democratic Party and Republican Party have qualified,” the lawsuit said.

Major-party candidates pay filing fees ranging from $75 to $5,000 or by submitting petitions with 5,000 signatures for statewide office. The law does not set a time limit on when they can begin collecting those signatures, the lawsuit said. Minor parties must nominate general-election candidates at a convention where participants equal at least 1% of the number of Texans who voted for governor in the prior election, or 83,717 participants in 2020. No minor party has met the 1% requirement in at least 50 years, the lawsuit said, but Texas law allows candidates to collect voter signatures within a 75-day window to make up the difference.

The tight deadline and limits on who may sign the petitions – registered voters cannot sign if they voted in a recent primary, attended another party’s convention or signed another party’s nominating petition for the same election – put minor-party candidates at a significant disadvantage, the lawsuit said.

Independent candidates are allowed on the general election ballot if they collect petition signatures equal to 1% of the voters in the previous gubernatorial election. Petitions cannot be circulated until after the major parties hold a primary or primary runoff election, meaning candidates could have 114 days, or as little as 30 days, to collect signatures, the lawsuit said. “This uncertainty alone imposes a significant burden that chills potential candidacies,” the lawsuit said.

Having to collect about 80,000 valid signatures by hand can cost $600,000, largely to hire people to circulate petitions, the lawsuit said. The result is an election scheme that makes it difficult, if not impossible, for candidates who are not wealthy to participate in the political arena, said Oliver Hall, a lawyer with the nonprofit Center for Competitive Democracy, which worked on the lawsuit without charge along with the Shearman & Sterling law firm, which has an office in Austin. “We think the federal courts will recognize that Supreme Court precedent prohibits Texas from limiting participation in its electoral process to those with financial means,” Hall said.

So the first thing to realize is that this cycle is an especially challenging one for parties or candidates who need to go the petition route to get on the ballot. That includes the Libertarians, whose best performance in 2018 was 3.42% in the Comptroller’s race. The Libertarians and to a lesser extent the Greens have benefited in the past from the Democrats not competing in all of the statewide judicial races, leaving at least one slot with a Republican running against an L and a G, with the two of them combining for 20% or so of the vote; there were two such races in 2014. In 2018 Dems had candidates in all of the judicial races, and that left the Libertarians (the Greens were not on the ballot because none of their candidates got to five percent in 2016) out in the cold. The other thing about 2018, you might recall, is that it shattered records for off-year turnout, which is why that “one percent of the Governor’s race” (*) requirement is as high as it is. Had the Ls and Gs needed petition signatures for 2016, they’d have only needed about 47,000 of them based on gubernatorial turnout from 2014. In addition, primary turnout, especially on the Dem side, is going to be through the roof, meaning that the pool of eligible petition-signers will be that much smaller. However you feel about the plight of the minor parties and would-be independents, this is a bad year to have to collect petition signatures.

The other fact to reckon with is that this isn’t the first time a federal lawsuit (which this one is, according to the Statesman) has been filed over this requirement. Back in 2004, after Ralph Nader tried and failed to get enough signatures to be on the ballot as an independent Presidential candidate, he sued and ultimately lost; his subsequent appeal was rejected. Federal judge Lee Yeakel ruled at the time that Texas’ ballot access laws did not create an unconstitutional burden. I’m not exactly sure what is different this time, other than the number of plaintiffs, but who knows. This is the main question, at least as far as I’m concerned, that will need to be addressed. I’ll be keeping an eye on it.

For what it’s worth, while I have no warmth for the third parties, I’d be all right with a petition process that gave them more time, and even that allowed them to solicit any voter, not just non-primary voters. If and when we get electronic voter registration, I’d concede on the electronic petition gathering item. Beyond that, I don’t see much of a problem. We’ll see what the judge says.

(*) There were 8,343,443 votes cast in the 2018 Governor’s race, one percent of which is 83,434. I have no idea where that 83,717 figure comes from, unless it’s some kind of weird typo.

A strange way to improve ballot access

Hard not to see partisan motives in this.

Rep. Drew Springer

A bill on track to reach Gov. Greg Abbott’s desk appears designed to make it easier for Green Party candidates and harder for Libertarian candidates to get on the Texas ballot in 2020. Democrats say House Bill 2504 is a ploy by Republicans to boost their reelection bids while siphoning off votes from Democrats.

The bill from state Rep. Drew Springer, R-Muenster, would make two major changes to how candidates with non-major parties run for office in Texas. The bill would require those candidates to either pay filing fees or secure a certain number of signatures to get on a November ballot. It also changes the threshold for guaranteeing a party a place on the ballot. The former provision could lead to fewer Libertarians running in 2020. The latter would mean the Green Party would likely earn a spot on the November ballot that year.

The bill tentatively passed the Senate on Sunday on a party-line 19-12 vote. If the chamber gives it final approval, it will head to the governor’s desk.

Currently in Texas, Democrats and Republicans have to either pay a filing fee or secure a certain number of signatures to get on their party’s primary ballot. Texas filing fees for a candidate range from $75 for county surveyor to $5,000 for U.S. senator.

The Libertarian Party, meanwhile, has avoided those requirements while routinely gaining a spot on the general election ballot by meeting a different threshold: at least one of its candidates has managed to win more than 5% of the vote in a statewide race during the previous election cycle.

Springer’s bill would lower that ballot-access threshold for third parties to 2% of the vote in one of the last five general elections — a bar that the Green Party could also clear. In 2010, the Green Party candidate for comptroller drew 6% of the vote.

[…]

An earlier version of the bill only had the filing fee provision. When the bill reached the House floor earlier this month, Springer proposed an amendment that added the new ballot threshold language. The amendment passed after less than a minute of discussion, catching some House Democrats off guard amid an intense evening session of the House in which dozens of bills were heard.

Springer told The Texas Tribune that he added the floor amendment because the current threshold for parties to gain ballot access “protects the two-party system too much.” It isn’t specifically targeting the Green Party, he said.

“Republicans are not afraid to give Texans more choice,” he added.

Pat Dixon, former state chair of the Texas Libertarian Party, testified against the bill last week at a Senate State Affairs Committee hearing. Dixon said the bill would unfairly force Libertarians to pay filing fees in addition to the cost of their nominating convention.

When Democratic and Republican candidates pay filing fees to run for an office, the money helps pay for the election. Under HB 2504, third-party candidates would pay the same filing fees, but the money would go toward state or local funds, but not funds specifically devoted to running elections.

The obvious partisan motive here is that Green candidates are widely believed to siphon votes away from Democrats, while Libertarians are believed to do the same to Republicans. I have little use for third parties, but the basic principle that ballot access should not be needlessly burdensome is one I support. That said, if the actual Libertarian Party says that this bill will hurt them rather than help them, I think it’s a little difficult to say that the bill is a principled effort to be more inclusive to third parties. I mean, the Libertarians were doing just fine getting their candidates on the ballot under the existing system. Just leave them alone and do no harm, you know?

By the way, when I say that Ls and Gs are “widely believed” to take away votes from Rs and Ds, I mean that’s the accepted wisdom but I’m not aware of any hard research that puts a formula to it. I have my own theories about third party voters, which you can agree with or argue with as you see fit. I do think there’s room for Democrats to minimize the vote share they lose to third parties in statewide races – not just Greens – and it will take one part better candidates, one part better party branding, and one part better outreach, which is another way of saying that they’ll need to have enough resources to ensure that their intended voters have sufficient information about all the candidates on their statewide ballot. It’s possible that in the long run this could lead to fewer votes for Greens statewide, as Dems will be better positioned in the coming years to compete in the downballot races as well as at the top of the ticket. For sure, this bill should be at least as much of an incentive to work harder for the Dems as it is for any other party. And you can be sure that when the votes are all counted in 2020, I’ll look to see what if any effects of this bill I can find.

No Greens

Can’t honestly say I’m sorry.

Jan Richards

When Texans head to the ballot box this November, they’ll be able to vote for Republicans, Democrats or Libertarians.

If they want to choose a candidate affiliated with another political group, they might have to write in the name of their chosen candidate. That’s because five other political parties seeking to get on the ballot — America’s Party of Texas, the Christian Party of Texas, the Green Party of Texas, None of the Above and the Texas Independent Party — didn’t secure the 47,183 valid signatures needed for ballot access this fall.

“We only got like 400 or 500 signatures out of the 50,000 that we need,” said Jan Richards, a Green Party of Texas candidate who’s running for governor.

“It’s a challenge. There’s really no other way to describe it — and they definitely don’t make it easy,” said Andy Prior, the former state chairman for America’s Party of Texas who’s also the party’s nominee for land commissioner. According to its website, America’s Party supports a pro-life and pro-liberty platform. It collected less than 250 signatures.

All five of the parties that missed out filed the necessary paperwork with the Texas Secretary of State’s office in order to gain ballot access this November, spokesman Sam Taylor said. That kicked off a 75-day period that began March 13 to get the signatures needed. But the deadline passed at midnight on Wednesday, and none collected enough.

[…]

In order to get their candidates on the general election ballot without a petition, parties must have at least one candidate win more than 5 percent of the vote in a statewide race during the previous election cycle. Libertarian petroleum engineer Mark Miller barely cleared that hurdle for his party in 2016, winning 5.3 percent of the vote in the race against Railroad Commissioner Wayne Christian.

The two parties other than the Democrats and Republicans that often collect enough votes in the previous election to secure ballot access for the following cycle are the Libertarians and the Greens.

But the Green Party, which runs on a liberal platform and is sometimes blamed for siphoning off votes from Democratic candidates, fell short in 2016 after Democrats fielded candidates in every statewide judicial race for the first time since 2010. The Green Party typically has relied on judicial races that lack Democratic candidates to reach the 5 percent threshold.

Yeah, darn those dirty Democrats and their dastardly tactic of running candidates in every race. The Greens were not on the ballot in 2006 and 2008 and were heading to be in the same position in 2010 when they got a bing financial boost from a Republican backer, followed by a favorable ruling from the Supreme Court. Not happening this time, I guess. Which among other things is a missed opportunity for them, as the Dems did not field a candidate in one Court of Criminal Appeals race this year. Better luck next time, y’all.

Note that this is just for statewide ballot access. The Greens and the Libertarians can still nominate candidates for Congress, the Lege, county offices, and so forth. If you want to know who they are and what they’re running for, well, the Texas Green Party website lists three would-have-been statewide contenders and one candidate for a school board, while the Harris County Green Party has bupkis. I don’t know what their plans are, and as you might surmise I don’t really care, but you may see a Greenie or two on your ballot in November anyway. Just not for a statewide race.

Don’t expect the Kathie Glass effect to be much

Seems like every four years we talk about the possible effect of third party candidates on various races. Usually, it’s in the context of legislative races, where some candidates have won with less than 50% in recent years and one could make a case that the presence of a (usually) Libertarian candidate might have had an effect on the outcome. The subject came up for the Governor’s race a little while back, and I’m here to tamp down on any irrational exuberance.

Hop on the bus, Gus. Or don’t. Your call.

Don’t forget 1990.

That was the year a third-party candidate made a potentially game-changing difference in the Texas governor’s race, drawing slightly more than the number of votes separating Democratic winner Ann Richards from Republican Clayton Williams.

And while third-party gubernatorial candidates did not participate in Friday’s debate between Greg Abbott and Wendy Davis, they could help decide who will be the next governor of Texas.

“Third-party candidates can mean a big difference in close elections,” said Allan Saxe, an associate political science professor at the University of Texas at Arlington. “Third parties can rarely win. Generally, [they] play a spoiler role.”

[…]

Observers say this year’s Nov. 4 general election could provide a number of close races where a third-party candidate might change the entire dynamics of a race.

“In these contests there exists the possibility that were one or more third-party candidates not on the ballot … the outcome of the election would [be] different,” said Mark P. Jones, a political science professor at Rice University in Houston.

[…]

Political analysts say third-party candidates could make a difference in the governor’s race.

Abbott, the state’s attorney general and GOP nominee, squares off against Davis, a state senator from Fort Worth and Democratic nominee. Libertarian Kathie Glass and Green Party candidate Brandon Parmer are in the race as well.

If the race tightens up, Glass and Parmer combined could draw as little as 4 percent of the vote and impact the result.

“That could mean the difference in a very close election,” Saxe said.

After all, in 1990, Richards won by claiming 99,239 more votes than Williams, and Libertarian Jeff Daiell earned 129,128 votes.

“Overall, the principal impact of the Libertarian Party and Green Party candidates this fall will be to provide voters with a different perspective on how to address many of the key challenges facing the state today,” Jones said.

A key example, he said, is Glass, “who is far and away running the most visible and vibrant campaign of any third-party candidate in Texas.”

I will admit, I saw the Kathie Glass Bus on the side of the road as we were heading back from Austin on 290 a couple of weeks ago. I was tempted to take a picture of it, but I was driving at the time, and I didn’t think Tiffany would have appreciated me hauling out my cellphone at that moment. Maybe some other time. In any event, I will admit that as far as that goes, Glass’ campaign has been more visible than some other Libertarian campaigns of recent years.

Nonetheless, I’m going to play spoiler as well. Here’s a compilation of all third-party candidate performances in Texas gubernatorial races since 1990. See if you can spot the problem.

Year Lib Green Other Total Win % ======================================== 1990 3.32 0 0.30 3.62 48.19 1994 0.64 0 0 0.64 49.68 1998 0.55 0 0.02 0.57 49.72 2002 1.46 0.70 0.05 2.21 48.90 2006 0.60 0 0.01 0.61 49.69 2010 2.19 0.39 0.14 2.72 48.64

Notice how in none of these six elections how the combined Lib and Green (and write-in, which is what the Other above represents) total has reached four percent? In fact, outside of 1990, it’s never reached three percent? This could be the year that it happens – the Kathie Glass Bus is quite impressive, after all – but if you’re going to write this story, you ought to acknowledge the history. Don’t get our hopes up without justification.

It’s my opinion from looking at as many election results as I’ve seen over the years that the higher the profile the race, the lower the ceiling for third party candidates, our wacky 2006 Governor’s race excepted. Honestly, outside of the hardest of the hardcore political junkies and members of the third parties themselves, I doubt more than a handful of people even know who the L and G nominees are. With all due respect to Kathie Glass and her bus, the people that will be voting for her are basically the people that always vote Libertarian and the people that for whatever the reason didn’t like the nominee from the party that they tend to vote for no matter how much they protest their “independence”. Frankly, if the base party vote is reasonably close to even overall – which at this point I don’t think is likely, but I could be wrong – the place where an L and/or G candidate could affect the outcome is down ballot. I went through this exercise before, to show that one doesn’t need to get 50% of the vote to win most statewide races in Texas due to the presence of other candidates, and as you can see the higher totals for third party candidates tend to be in the lower profile races. I’m not saying that Kathie Glass and Brandon Parmer can’t have an effect on the outcome of the Governor’s race. I am saying that if I had to pick one race where there might be an effect, I’d probably pick Railroad Commissioner or Supreme Court justice. I promise to look at this again after the election.

Precinct analysis: Third parties revisited

Politico has a question.

Is Austin’s Travis County the nation’s Libertarian Party stronghold?

The co-founders of a Libertarian political action committee based there make that case, arguing that the Texas locale is the “most Libertarian large county in America.”

Wes Benedict and Arthur DiBianca of Libertarian Booster PAC note that 31 Libertarian candidates were on the Travis County ballot this year, more than any other county in America. Among the other stats they cite:

  • Libertarian presidential nominee Gary Johnson won 2.7% there, his highest percentage nationwide for large counties outside his home state of New Mexico.
  • Four Libertarians got over 40% of the vote for the portion of their district within Travis County
  • The current chairman of the national party, Geoffrey Neale, lives in Travis County, and 2004 Libertarian presidential nominee Michael Badnarik had previously run for office as a Libertarian in Travis County, and his presidential campaign headquarters were located in Travis County.

Their argument makes some sense – certainly there’s a strong libertarian bent in tech-heavy communities like Travis County.

We reviewed this before, and indeed Travis was the best county in the state for Johnson. It was also the second-Greenest county in the state, so I think it’s more a matter of iconoclasm than Libertarianism. For the record, those four Libertarians with over 40% of the vote were the candidate in CD17, plus three statewide judicial candidates. All were the sole opponents to Republicans, and I say that’s more about anti-Republicanism than pro-Libertarianism. Besides, as we’ve also seen, Libertarian Railroad Commissioner candidate Jaime Perez did better than that in several Latino-heavy counties, winning a majority of the vote in Maverick and Webb even though he also had a Green opponent. The simple fact is that in areas that are dominated by one party, Ls and Gs serve as the default option in races where that party isn’t represented. This doesn’t detract from the claim that Travis County has a large number of people willing to push the L button – relatively speaking, anyway – just that one needs to be aware of the qualifications.

Reading that story made me decide to go back to the Harris County precinct data to see where the Lib and Green friendly areas were. I broke this down into three sets of races, since obviously not every race featured an L and/or a G. The first set is the top of the ticket, the Presidential race and the Senate race. Here’s how the L and G candidates did in those races in each State Rep district:

Dist Johnson Stein J Pct S Pct Myers Collins M Pct C Pct ================================================================ 126 531 160 0.92% 0.28% 903 424 1.58% 0.74% 127 587 208 0.88% 0.31% 977 491 1.48% 0.74% 128 450 129 0.80% 0.23% 791 325 1.43% 0.59% 129 781 284 1.21% 0.44% 1,216 582 1.90% 0.91% 130 693 199 0.99% 0.29% 1,143 480 1.65% 0.69% 131 196 93 0.45% 0.21% 384 297 0.89% 0.69% 132 549 151 1.03% 0.28% 908 405 1.72% 0.77% 133 815 241 1.12% 0.33% 1,187 561 1.65% 0.78% 134 1,114 436 1.34% 0.53% 1,697 898 2.08% 1.10% 135 548 162 1.01% 0.30% 881 447 1.63% 0.83% 137 289 113 1.17% 0.46% 486 322 2.01% 1.33% 138 540 161 1.17% 0.35% 795 403 1.73% 0.88% 139 260 132 0.51% 0.26% 513 392 1.01% 0.77% 140 152 66 0.64% 0.28% 223 215 0.96% 0.92% 141 142 56 0.37% 0.15% 282 169 0.74% 0.45% 142 166 93 0.40% 0.22% 352 271 0.85% 0.66% 143 189 104 0.62% 0.34% 336 304 1.11% 1.01% 144 238 90 0.98% 0.37% 371 241 1.55% 1.01% 145 273 161 0.92% 0.54% 481 342 1.65% 1.17% 146 376 190 0.74% 0.38% 624 438 1.25% 0.88% 147 583 304 1.06% 0.56% 944 685 1.75% 1.27% 148 640 282 1.62% 0.71% 947 553 2.43% 1.42% 149 347 131 0.80% 0.30% 594 358 1.40% 0.84% 150 598 157 0.92% 0.24% 976 478 1.51% 0.74%

The percentages here are calculated from the four-candidate totals. For comparison purposes, Libertarian Gary Johnson had 0.93% overall in Harris County, and Green Jill Stein had 0.35%; in the Senate races, John Jay Myers had 1.54% and David Collins had 0.86%. Everyone who had HD148 as the most third-party-friendly district in Harris County, come forward and collect your winnings. You would have guessed HD134, am I right? That district isn’t as Montrose-y as it used to be, which I suspect is the reason for its runnerup status. At the other end of the scale, note how third-party-resistant the African-American districts were – all but HD147 were well below the countywide levels of L and G support. Republican districts in general were also third-party-averse, with only HDs 134 and 129 overperforming for them. This is what you should expect for Presidential and Senate races – as the highest-profile races, and the ones that tend to have the fewest undervotes, people are going to stick with their home teams unless they’re crossing over for a specific reason. Once we get past these races, however, it’s a different story. There were two other statewide races that had an R, a D, an L, and a G – the Railroad Commissioner race that featured Christi Craddick, Dale Henry, Vivekananda (Vik) Wall, and Chris Kennedy; and the Supreme Court race between Nathan Hecht, Michele Petty, Mark Ash, and Jim Chisholm. Here’s how that played out for the L and G candidates.

Dist Wall Kennedy W Pct K Pct Ash Chisholm A Pct C Pct ================================================================ 126 951 758 1.69% 1.35% 1,240 530 2.22% 0.95% 127 1,060 922 1.63% 1.42% 1,438 620 2.22% 0.96% 128 785 757 1.44% 1.39% 1,117 512 2.05% 0.94% 129 1,387 1,174 2.21% 1.87% 1,677 727 2.69% 1.17% 130 1,183 861 1.74% 1.26% 1,668 607 2.46% 0.89% 131 354 550 0.83% 1.28% 452 298 1.06% 0.70% 132 906 751 1.73% 1.44% 1,207 495 2.32% 0.95% 133 1,307 1,036 1.85% 1.47% 1,674 676 2.40% 0.97% 134 1,937 1,784 2.46% 2.27% 2,373 973 3.04% 1.24% 135 964 724 1.81% 1.36% 1,187 473 2.25% 0.90% 137 494 525 2.07% 2.20% 578 317 2.44% 1.34% 138 884 748 1.96% 1.66% 1,082 490 2.42% 1.09% 139 518 744 1.03% 1.47% 676 527 1.34% 1.05% 140 213 447 0.92% 1.94% 318 307 1.38% 1.34% 141 250 362 0.66% 0.96% 332 253 0.88% 0.67% 142 347 405 0.85% 0.99% 442 297 1.08% 0.73% 143 287 611 0.96% 2.05% 448 419 1.51% 1.42% 144 361 556 1.53% 2.35% 502 345 2.13% 1.46% 145 501 795 1.74% 2.77% 690 515 2.41% 1.80% 146 626 810 1.27% 1.65% 748 433 1.53% 0.88% 147 1,022 1,197 1.92% 2.25% 1,229 719 2.32% 1.36% 148 941 1,319 2.47% 3.47% 1,319 798 3.49% 2.11% 149 607 637 1.44% 1.51% 725 353 1.74% 0.85% 150 1,093 904 1.71% 1.42% 1,475 613 2.32% 0.97%

These results just fascinate me. The total number of L and G votes in each race was nearly the same – 38,476 in the RRC race, 36,993 in the Supreme Court race – but the distribution was completely different. Wall (19,036 for 1.65%) and Kennedy (19,440 for 1.68%) basically tied, while Ash (24,665 for 2.14%) doubled up Chisholm (12.328 for 1.07%). Look in each district, and you can basically see some number of people who voted for Kennedy in one race voting for Ash in the other? You may wonder why this is. It’s possible that Christi Craddick was more acceptable, and Dale Henry less so, to the “swing” third-party voters that otherwise vote R and D, with the reverse being true for Nathan Hecht and Michele Petty. There is something to that – Henry is on the verge of morphing into Gene Kelly, while Nathan Hecht has ethical baggage and nearly foisted Harriet Miers onto an unsuspecting US Supreme Court. The total number of voters involved here is tiny enough to include the possibility that they’re sophisticated enough to make such judgments. Personally, I think it’s more likely that we’re looking at roughly the same voters in each race, and that people picked Chris Kennedy over Vik Wall as their “none of the above” choice because Wall had a funny-sounding name. What do you think?

At the county level there were no four-way races, but there was a Green candidate running for Sheriff (Remington Alessi) and a Libertarian candidate running for Tax Assessor (Jesse Hopson). Here’s how they did in their respective races.

Dist Alessi A Pct Hopson H Pct =================================== 126 866 1.54% 1,291 2.30% 127 1,180 1.82% 1,632 2.51% 128 851 1.55% 1,156 2.12% 129 1,428 2.27% 1,866 2.98% 130 1,027 1.50% 1,695 2.50% 131 603 1.41% 534 1.25% 132 903 1.73% 1,294 2.49% 133 1,317 1.88% 1,804 2.58% 134 1,952 2.49% 2,458 3.15% 135 894 1.68% 1,279 2.42% 137 622 2.61% 695 2.93% 138 868 1.92% 1,225 2.73% 139 801 1.58% 844 1.68% 140 300 1.28% 357 1.55% 141 373 0.99% 366 0.97% 142 478 1.16% 497 1.21% 143 450 1.49% 488 1.64% 144 435 1.83% 524 2.22% 145 697 2.40% 777 2.71% 146 927 1.89% 895 1.83% 147 1,383 2.60% 1,369 2.58% 148 1,226 3.19% 1,437 3.79% 149 671 1.60% 834 1.99% 150 1,070 1.68% 1,547 2.44%

These are two different races, so Alessi and Hopson’s numbers aren’t directly comparable, but it’s still interesting to see them side by side. I take this as a data point in favor of the hypothesis that Libertarian candidates tend to draw support from Republicans; based on these numbers, they do so in somewhat greater quantity than Greens do from Dems. I wouldn’t draw too broad a conclusion from this sample – there was a lot of money in the Sheriff’s race, and that tends to minimize third party support. Then again, Alessi did actually campaign – if Hopson did, it was invisible to me – and there was some criticism of Sheriff Garcia from the left, so one might expect him to do better than a generic “none of the above” candidate. Make of it what you will.

I think that about runs me out of ideas for precinct analyses. One never knows where inspiration may strike, though, so don’t quote me on that. And there’s always next year, which is to say this year now. Until then, or until I come up with another angle at which to examine the data, we’ll call it a wrap on 2012.

The third parties

While I work my way through the precinct data in Harris County, we can keep looking at the county data for Texas from last week’s election. Here are the top and bottom ten counties by percentage of the vote for Libertarian Presidential candidate Gary Johnson:

County Johnson % County Johnson % ============================================== Travis 2.72% Throckmorton 0.00% Hays 2.46% Brooks 0.25% Brewster 2.35% Kimble 0.32% Williamson 2.22% Lipscomb 0.34% Jeff Davis 2.02% Parmer 0.35% Bastrop 1.90% Refugio 0.37% Brazos 1.87% Bailey 0.39% Caldwell 1.84% Zapata 0.40% Terrell 1.80% Dimmit 0.41% Blanco 1.71% Deaf Smith 0.42%

Travis County is a hotbed for third-party voting, and apparently that fever has spread to some of its neighbors. My guess is that more people there consider their Presidential vote to be meaningless, so they feel freer to use it for personal expression. I will add that the #12 county on the “most Libertarian” list is Loving County, where Johnson collected 1.56% of the vote. Of course, there were only 64 total votes cast in Loving County (2010 population: 82 residents), so that 1.56% represents exactly one voter. How would you like to say that you’re the only voter of your kind in your entire county? For what it’s worth, Travis was the only blue county in the top ten, while Brooks, Zapata, and Dimmit are all deep-blue Rio Grande counties. Only Blanco County was more than 70% red, while five of the top ten counties were between 50% and 60% Republican; of the bottom ten counties, all but Refugio among the Republican counties were at least 70% so.

By the way, Johnson did something that no other Libertarian Presidential candidate had ever done in Texas: He got more than 1% of the vote, 1.10% to be exact.

Here are the same lists for Green Party candidate Jill Stein:

County Stein % County Stein % ============================================== Brewster 0.91% Loving 0.00% Travis 0.87% Hudspeth 0.00% Borden 0.83% Hemphill 0.00% Foard 0.81% McMullen 0.00% Presidio 0.66% Oldham 0.00% Dallam 0.65% Sherman 0.00% Kinney 0.63% King 0.00% Delta 0.59% Kenedy 0.00% Jeff Davis 0.59% Floyd 0.00% Blanco 0.58% Martin 0.00%

Note: that’s “Dallam” County in Stein’s top ten list, not “Dallas”. There is Travis again, giving Stein not just a relatively high percentage but also a huge share of her total vote: The 3,360 Greenies in Travis County represented nearly one-seventh of Stein’s final total of 24,450 votes. Only three other counties appeared on both Stein and Johnson’s lists, and outside of Travis they’re all small to tiny; besides Brewster (35 votes for Stein) and Blanco (29 votes), none provided more than 12 Green votes. Serendipitously, there were exactly ten counties that pitched a Green shutout. Hays (0.57%, #11 on the list) and Jefferson (0.13%) were the high and low Green scorers among counties with at least 100,000 registered voters, while El Paso (0.37%) and Fort Bend (0.21%) were at the top and bottom of counties where at least 100,000 votes were cast.

And finally, the same lists for John Jay Myers and David Collins, the Libertarian and Green candidates for Senate, respectively.

County Myers % County Myers % ============================================== Cottle 4.67% Glasscock 0.55% Brewster 4.62% Brooks 0.64% Travis 4.30% Sutton 0.70% Hays 4.21% Martin 0.71% Williamson 4.09% Jim Hogg 0.81% Hudspeth 3.96% King 0.82% Terrell 3.75% Dickens 0.83% Bastrop 3.53% Wheeler 0.83% Culberson 3.42% Rusk 0.85% Kenedy 3.29% Jefferson 0.96% County Collins % County Collins % ============================================== Maverick 2.34% Glasscock 0.00% Johnson 2.27% King 0.00% Presidio 2.09% Floyd 0.24% Jeff Davis 1.95% Borden 0.29% Brewster 1.87% Hartley 0.32% Culberson 1.85% Madison 0.32% Webb 1.84% Garza 0.34% Willacy 1.71% Hemphill 0.34% Loving 1.67% Lamb 0.35% Zapata 1.65% Camp 0.37%

There’s a lot of overlap between Johnson and Myers’ top lists – Hudspeth was #11 for Johnson, and Culberson was #26. Cottle and Kenedy are both tiny counties, and the differences are small but pronounced given the minimal number of voters. 31 people in Cottle votes Myers, but only 5 for Johnson, while in Kenedy it was 5 for Myers and 1 for Johnson. As for Collins, just as there was one Libertarian in Loving County, so is there one Green there. I wonder if they know each other.

Courting the Ron Paul voters

Good luck with that.

Libertarian presidential candidate and would-be spoiler Gary Johnson smoked out new campaign cash here this week.

But his hopes are just a pipe dream unless he wins over Republican voters loyal to never-say-quit candidate Ron Paul.

“Hundreds” of Republicans have promised Johnson they will switch his way if the Republican National Convention nominates Mitt Romney on Aug. 30, Johnson said Thursday.

“That’s hundreds telling me personally, which means how many more?” Johnson said during a six-day Texas campaign swing.

He predicted a “gigantic influx” of support after Romney is nominated.

[…]

Yet even before any Paul voters switch, his current 8 to 13 percent of the vote in Western states might be enough to tip pivotal Electoral College votes for or against Romney or President Barack Obama.

If Johnson takes away a swing state Romney badly needs — “then let me be the spoiler,” Johnson said.

This story is actually from two weeks ago. I’d forgotten that I’d drafted something, then had my memory jogged after the Ron Paulrelated kerfuffles this week. To put some context on Johnson’s numbers, there were 174,207 votes cast for Ron Paul in this year’s GOP Presidential primary. That would have represented 2.15% of the 8 million plus votes cast in 2008. That’s not very much, and that’s assuming every known Ron Paul supporter in May did in fact vote for Johnson in November. But even that paltry total towers over the past performances of Libertarian Presidential candidates in Texas:

Year Libertarians Pct =============================== 1992 Marrou/Lord 0.32% 1996 Browne/Jorgenson 0.36% 2000 Browne/Olivier 0.36% 2004 Badnarik/Campagna 0.52% 2008 Barr/Root 0.69%

The Secretary of State data don’t go back any farther than that, but thanks to Dave Liep’s Election Atlas, I can bring you the other two results:

Year Libertarians Pct =============================== 1980 Clark/Koch 0.83% 1988 Paul/Marrou 0.56%

I suppose you can look at Bob Barr’s 2008 performance as having doubled the Libertarian total in only eight years, or as finally getting back towards the high-water mark of 1980. Either way, I’ll bet the under on that 2.15% mark.

From the “Grant me the grace to accept the things I cannot change” department

What’s that old saying? “Could be worse. Could be raining.”

As Democrats around the country girded for a midterm GOP tsunami, Bill White and his down-ballot Democratic cohorts spent the weekend tacking up political plywood and looking for signs, any signs, that the storm would not be as severe as the prognosticators were predicting.

One of those signs in Harris County, said Gerry Birnberg, Harris County Democratic Party chairman, was that early vote totals turned out to be “pretty much a dead heat” after an initial surge from enthusiastic Republicans.

Still there were storm clouds looming for local Democratic candidates, Birnberg noted on Sunday. And he meant real storm clouds.

“The wild card in the deck is the weather,” Birnberg said. Forecasters are predicting Election Day thunderstorms for the Houston area, and that might make it difficult for a party that needs a large turnout to make up the Republican advantage in mail-in and early voting ballots.

SciGuy suggests the weather ought to be pretty good during voting hours today. You can verify or falsify that yourself by just looking out your window.

As far as the differences between early voting and Election Day are concerned, a survey of the 2002 and 2006 results shows that Democrats have done about three points better on Election Day than before it. Of course, with a handful of exceptions Republican candidates still won on Election Day in those years. Still, the difference moved the needle a point or two in the Democratic direction, which may be enough if the vote tallies are fairly even to begin with.

That has to be qualified by noting that in those elections, the vast bulk of votes were cast on Election Day, which will surely not be the case this year. However, if the surge in Early Voting is similar in nature to what we saw in 2008, when scads of people who had formerly voted on Election Day changed their behavior, then we could see a much bigger difference in performance. In 2008, when many more Democrats voted early, Republicans gained between six and eight points on Election Day. I doubt we’ll see anything that dramatic, but I do believe the Republican well isn’t as deep today.

Finally, I should note that in all three years, including 2008, Libertarian candidates did better, by about a point in 2008 and a half a point in 2002 and 2006, on Election Day. I’m sure there’s a slacker joke in there somewhere, but I’m not feeling it right now. Green candidates did a smidge better on Election Day in 2002, in case you were wondering. Make of that what you will.

Still not mentioning the Libertarian numbers

Here’s one Trib story about their most recent poll (summary here, crosstabs here), that barely mentions the most remarkable numbers from it.

The voters who identify with the Tea Party overwhelmingly favor Republicans in statewide races, with more than 80 percent of them in each race favoring the Republican over the Democrat. In the governor’s race, 84 percent of the Tea Partiers favor Perry, 5 percent are for Democrat Bill White, 8 percent go with Libertarian Kathie Glass and 2 percent back Deb Shafto of the Green Party.

And here’s another:

The Perry-White result includes the responses to a follow-up question posed to those who responded “don’t know” about their preference for governor. This was a different approach from the September UT/Tribune poll, conducted at a time when we thought many voters had yet to turn their attention to the election. About 15 percent of the October sample said they were undecided in their initial response. When pressed respondents to express a preference, equal numbers chose Perry and White, adding 5.4 percent to each candidate’s totals. Libertarian Kathie Glass gained an additional 2 percent from these “pushed” undecided respondents, and Deb Shafto, the Green candidate, gained another point. This left the undecided number at less than half a percentage point.

That second one was written by the pollsters themselves, but there’s still no discussion of the fact that the level of Libertarian Party support they are projecting in the Governor’s race and in all of the other races is both unprecedented and not seen in other concurrent polls. As I noted before, they are showing Libertarian support levels that would be double to triple the highest amount we’ve seen in contested races over the last eight elections, going back to 1994, and they have yet to offer a hypothesis as to why that might be. I find that puzzling and neglectful. If the PECOTA projections for the 2011 baseball season claimed that five guys would bat .400 and three pitchers would win 30 games, I’d expect to see some detailed explanations for why those predictions are justified. To do otherwise would make me question the fundamental structure of the system. I’m feeling the same way about this poll right now.

Once again, I’ll take the under

There’s a bizarre new UT/Texas Trib poll that’s so odd I can’t even come up with a good introduction for it, so I’m just going to jump straight to the weirdness:

Republican Gov. Rick Perry leads his Democratic challenger, Bill White by 10 points — 50 percent to 40 percent — in the latest University of Texas/Texas Tribune poll, which was conducted in the days leading up to early voting. Libertarian Kathie Glass has the support of 8 percent of respondents; Deb Shafto of the Green Party gets 2 percent.

[…]

• In the race for lieutenant governor, David Dewhurst is leading Democrat Linda Chavez-Thompson 51 percent to 38 percent. Libertarian Scott Jameson has 9 percent, while the Green Party’s Herb Gonzales Jr. has 2 percent.

• Attorney General Greg Abbott leads Democrat Barbara Ann Radnofsky 55 percent to 35 percent. Libertarian Jon Roland has 11 percent (when the total here and elsewhere doesn’t add up to 100 percent, rounding is the culprit).

• Comptroller of Public Accounts Susan Combs, the only major-party candidate in her race, has the support of 51 percent, while Libertarian Mary Ruwart pulls 11 percent and Ed Lindsay of the Green Party has 9 percent. This is the only contest in the poll in which undecided voters were not pushed to make a choice; as such, 29 percent of respondents identified themselves as undecided.

• Land Commissioner Jerry Patterson is leading Democrat Hector Uribe 50 percent to 37 percent in his bid for re-election, with Libertarian James Holdar garnering 12 percent.

• Agriculture Commissioner Todd Staples leads Democrat Hank Gilbert by the same margin: 50 percent to 37 percent. Libertarian Rick Donaldson has 12 percent.

• In the race for a slot on the Railroad Commission that is the only open seat on the statewide ballot, Republican David Porter leads Democrat Jeff Weems 50 percent to 34 percent, with Libertarian Roger Gary at 10 percent and Art Browning of the Green Party at 5 percent.

I’m not sure what is more surprising, the numbers received by the Libertarian candidates in these polls, or (as one commenter said) the fact that Ross Ramsey could write this story without once making note of them. How out of the ordinary are the Libertarian numbers? I went through every statewide election result on the Secretary of State webpage going back to 1992. Here are the best performances by year of a Libertarian candidate in contested statewide races:

Year Race Candidate Pct ========================================= 2008 RRC David Lloyd 3.51 2006 Lt Gov Judy Baker 4.35 2004 RRC Anthony Garcia 3.59 2002 Land Comm Barbara Hernandez 4.12 2000 Senate Mary Ruwart 1.15 1998 Land Comm Monte Montez 2.72 1996 Sup Ct Eileen Flume 3.64 1994 RRC Buster Crabb 3.15 1992 RRC Richard Draheim 6.98

A couple of notes: The Senate race in 2000 was the only non-Presidential contest that had an R and a D in it at the state level. 1996 featured the only appearance of the Natural Law Party; they were in three state races, including the Presidential race, and topped out at 0.75%, though they did break 1% in some Congressional contests.

And then there’s 1992, which features the number that most likely jumps out at you, Richard Draheim’s 6.98%. That race featured Democratic incumbent Lena Guerrero, who had been appointed to the Railroad Commission by then-Governor Ann Richards. During the election campaign it was revealed that she had lied about getting a degree from UT, which turned into a huge scandal that sent her campaign into a ditch. I’ve no doubt that this was the main contributor to Draheim’s unparalleled performance. Yet even under those circumstances, it’s not in the 8 to 12 percent range that UT/TT is crediting this year’s crop of Ls with.

You can, I trust, see why I’m skeptical. If that’s not enough, note that in the past four Governor’s races, the best any Libertarian candidate has done is 1.46%, considerably less than what UT/TT claims Glass to be polling at. I’d set the over/under in all of these races at 4%, and I’d take the under on all of them. No other poll has shown anything like this, including the two previous results from UT/TT. How they could fail to remark on these highly remarkable numbers is a mystery to me. BOR has more.

Will there be a Libertarian effect in the Governor’s race?

Hard to say, but the odds that there would be at least one article about the possibility of a Libertarian effect in the Governor’s race were pretty close to 100%.

[Kathie] Glass, 56, is a Houston civil lawyer and Libertarian candidate for governor who is trying to pick up the frustrated right’s mantel where Debra Medina dropped it off.

While winning would be a long shot for Glass, her appeal to frustrated conservatives could draw enough votes to put a real kink into Perry’s lead over Democrat Bill White.

While Green Party candidate Deb Shafto has put her campaign into a website and a few public appearances, Glass and her husband, Tom, are criss-crossing the state in a motor home to espouse her views via a variety of talk radio programs. She also is buying radio ads to promote her appearances at Tea Party and activist group gatherings.

“I have an uphill battle, but in a three-way race, 34 percent can take this thing,” Glass told a San Antonio-based Texans United for Reform and Freedom meeting recently.

The odds against winning are huge, but Medina jumped from almost nonexistent in the polls to about 20 percent in the March GOP primary after she won a spot in a statewide debate. Medina’s campaign ultimately stumbled with a gaffe.

The real potential for Glass is that her message of stark government downsizing will steal votes from Perry.

In the 1990 governor’s race, where many voters were disgusted with the Republican candidates, Libertarian Jeff Daiell won almost 4 percent of the ballots. Daiell received enough votes to have given Republican Clayton Williams a victory over Democrat Ann Richards.

Let’s be clear about one thing: The difference between Debra Medina’s performance in the primary and Kathie Glass’ potential performance in November comes down to one thing, and that’s straight party voting. I surveyed straight ticket voting patterns back in 2006 when some polls showed Chris Bell barely breaking 10%. At that time, I concluded that a bit less than half of all votes cast in non-Presidential year races were straight party votes, meaning that the worst any Democratic candidate could possibly do was about 20%. I’ve checked some numbers for the 2006 election, and they clearly show just how hard it would be for anyone outside of the two-party system to make headway. Here are the straight ticket voting totals for some of Texas’ more populous counties:

County Straight Governor Pct ==================================== Harris 283,528 589,348 48.1 Dallas 232,136 406,325 57.1 Tarrant 160,352 326,337 49.1 Bexar 110,606 273,780 40.4 Travis 83,788 226,346 37.0 Collin 65,329 138,159 47.3 Denton 51,377 108,513 47.3 Fort Bend 48,816 98,667 49.5 El Paso 37,762 90,764 41.6 Williamson 31,681 84,085 37.7 Hidalgo 25,079 47,827 52.4 Nueces 23,892 67,623 35.3 Lubbock 22,113 53,564 41.3 Jefferson 21,858 46,775 46.7 Brazoria 20,584 58,441 35.2 Montgomery 16,051 31,510 50.9 Midland 11,538 24,769 46.6 Webb 8,002 18,391 43.5 Rockwall 7,070 15,625 45.2 Total 1,261,562 2,706,849 46.6

“Straight” is the sum of the Republican and Democratic straight ticket votes for each county. “Governor” is the total number of votes cast for all candidates, including write-ins, for the Governor’s race. As was the case in 2002, nearly half of all votes cast were straight party R or D votes. To get to 34% of the total in these counties, a Libertarian candidate would have needed to get more than 900,000 of the 1.44 million remaining votes, or about 64% of the non-straight vote total. What do you suppose are the chances of that happening? Even to match Medina’s 20%, she’d need 38% of the remainders. And remember, that would have been in a year with that bizarre four-way Governor’s race, which must have had a negative effect on normal straight-voting patterns. I fully expect straight ticket trends to be up this year compared to 2006. If you want to suggest that Kathie Glass could somehow repeat Debra Medina’s performance, you need to tell me how the math works for her.

This Politico story produces a different misleading statistic to bolster its claims about Glass’ potential effect on the race:

Perry received only 39 percent of the vote in his reelection in 2006, and Libertarians consistently draw between 3 and 5 percent of the vote. In an anti-establishment year, a compelling candidate like Glass “could easily get up to 7 [percent],” [Phil] Martin [who works for the Texas Democratic Trust] said.

I hate to disagree with my good friend Phil, but it’s not in the Governor’s race where Libertarian candidates have drawn that 3 to 5 percent, it’s in the other statewide races, usually the ones that are the most lightly contested. While the 1990 Governor’s race is interesting, and does demonstrate what can happen when you’ve got a candidate that is disliked by a non-trivial number of members of that candidate’s party, since then no Libertarian gubernatorial candidate has done anywhere near that well:

Year Lib % ============ 1994 0.64 1998 0.55 2002 1.46 2006 0.60

You’d have to have a mighty tight race for those numbers to make a difference. The last time a statewide candidate won with less than 50% was in 1998, when Carole Keeton Rylander captured the Comptroller’s office with 49.54% to Paul Hobby’s 48.99%; Libertarian Alex Monchak collected 1.45%. My observation is that Libertarian candidates fare especially poorly in the highest-profile races, when the Republican and Democratic candidates have sufficient resources to run real campaigns and are well known to the voters. If I had a lot more time and the statistical chops, I’d build a mathematical model to try to predict Libertarian performance in a given race. My guess for this race is that the over/under for Glass is 2%, and I feel that’s being generous. But we’ll see.

Now, even 2% could be a game changer, especially if Glass succeeds at taking more votes from Rick Perry than from Bill White. And hey, I could be wrong, and Glass could get the four percent that Daiell got in 1990. But as I’ve said before in the context of articles about how Libertarian candidates might have an effect on this race or that, let’s try to maintain some perspective. The hype is almost always bigger than the actual numbers turn out to be.

Revisiting the Libertarian effect

While we still don’t know what the deal will be with the Green Party, we may wonder what of that other third party on the ballot? Ross Ramsey takes a look at the Libertarian Party and the effect its candidates have on legislative races.

It’s impossible to know just which races will be close in November. But more than a dozen House races that are on the target lists of either the Republicans or the Democrats have Libertarians in them. Republicans have set their sites on state Reps. Mark Homer of Paris, Donna Howard of Austin, Diana Maldonado of Round Rock, Joe Moody of El Paso, Joe Heflin of Crosbyton, Chris Turner of Burleson, Allen Vaught of Dallas, Ellen Cohen of Houston and Hubert Vo of Houston, among others. Democrats are gunning for state Reps. Tim Kleinschmidt of Lexington, Charles “Doc” Anderson of Waco, Linda Harper-Brown of Irving, Joe Driver of Garland, Dwayne Bohac of Houston and Ken Legler of Pasadena. That’s not the entire target list for either party, but those are the races that could be close — and that have Libertarians on the ballot. Libertarian candidates signed up for the two Texas congressional seats on the GOP’s national target list, those held by U.S. Reps. Chet Edwards of Waco and Ciro Rodriguez of San Antonio. And they’ve got statewide candidates all lined up, too.

“In a year like this, I would do anything I could to make it a one-person race,” says Todd Olsen, a consultant working with Associated Republicans of Texas, a political action committee trying to preserve and increase GOP majorities in the statehouse. “If I could get the Libertarian to drop out and support me, I’d do it. The Green? I’d do it.”

I took a look at this in 2008, both before and after the election that year. My conclusion is that while there is an effect in the occasional race, the absolute number of races in which you could reasonably say there was an effect is really small. Of course, it’s a huge deal when it does happen – a win is a win, after all – so it’s worth keeping an eye on the races where it’s possible to occur, and it’s worth it to push things one way or the other if you’re involved in such a race. Just keep it in perspective, that’s all I’m saying.

Hey, remember when Kinky Friedman wanted you to believe he was a Democrat?

There’s a reason why some of us never believed a word he said. I figure he’ll reinvent himself again in 2012 as a Green, thus completing his tour of the Texas political world. Some people just don’t know when to leave.

Another step forward for a statewide smoking ban

The statewide smoking ban proposals picked up the endorsement of the state restaurant association.

On Monday, the Texas Restaurant Association voted to support the measure – one they say would “level the playing field” for establishments across Texas.

“With 28 Texas cities and 24 states now smoke-free, it’s just a win-win for that industry,” said state Rep. Myra Crownover, the Denton Republican carrying the House bill to ban smoking in all the state’s public places.

“What people forget is that for every one person who wants to smoke at a restaurant or bar, there are six or seven people who don’t go to that establishment because they allow it.”

One group unconvinced? Civil libertarians – who say it’s inappropriate for the government to intrude on private property or take away personal freedoms.

They’re joined by the tobacco lobby, which has contributed more than $112,000 to the campaigns of Texas lawmakers in the last two years, according to Dallas Morning News research.

“A restaurant, a bar, is private property, and you the customer have the choice of whether you go in or you don’t,” said Patrick Dixon, chairman of the Texas Libertarian Party. If you’re a nonsmoker, “there are other places that will cater to you.”

All due respect here, but if you’ve got to go to the chair of the Texas Libertarian Party for an anti quote, the pro position is probably in pretty good shape.

The proposed state ban, which is being championed by cyclist and cancer survivor Lance Armstrong, would outlaw smoking in bars, restaurants and all indoor public places across Texas, including offices, convention centers and bus stations. It would also ban smoking in the bleachers of outdoor sporting or music events, and anywhere within 15 feet of a doorway to a public building.

A statewide smoking ban, which failed in the 2007 legislative session, would supersede less-stringent laws in Texas cities. Smoking would still be permitted in specially marked hotel rooms, private rooms at nursing homes and outdoor patios connected to restaurants or bars.

Depending on circumstances, the patio allowance is either a deal-maker or a deal-breaker for bar and restaurant owners. Some establishments say it’s the only way they’ll be able to retain their smoking customers.

I’ve noted Armstrong’s involvement before. I don’t really have an opinion on the patio allowance provision. It’s fine by me if there is one, but it won’t break my heart if there isn’t.

Gov. Rick Perry said that while he fully understands the health concerns of cigarette smoke, he likes the idea of local control and wants to find a way to walk the line that protects individual rights.

So there’s still the chance of a veto, or a back-alley bill-killing, if the Governor gets a wild hair about it. But overall, the odds of this happening look good.