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 A candidate who has withdrawn, or been declared ineligible, or died after this date will still appear on the ballot.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 If the ineligible/withdrawn/deceased candidate wins the election (as was the case in those two examples I cited), there is then a vacancy for the office, because that person cannot take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.

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12 Responses to Republicans try and fail to remove Libertarian candidates from the ballot

  1. Bill Daniels says:

    The traditional thought is, Libertarians pull votes from Republicans. That used to be true. I was that voter. I voted Ron Paul, even voted Ross Perot, although he ran as an independent. I never voted for Republicans, unless there was no Libertarian or Constitution Party candidate for that particular race. What has changed, though, is the Libertarian party has been co-opted by radicals. It’s no longer the common sense party of John Stossel. So people like me are long gone from the Libertarian party, replaced by kids who otherwise would be voting Democrat.

    I don’t see the (L) candidates siphoning off any votes for (R) candidates, at least, not any more.

  2. Thomas says:

    I think Bill is partially correct here. These days, Libertarians seem to pull more Republicans who don’t like the current state of the GOP but don’t exactly want to vote for a Democrat either. Basically every Gary Johnson voter I knew in 2016 was a normal Republican voter who just didn’t like Trump.

    So I don’t know that removing a Libertarian from the ballot would help the GOP… because in a two-candidate race those voters may just hold their nose and vote for the Democrat.

  3. Tom in Lazybrook says:

    This will probably hurt the Republicans below the Presidential line. Libertarians are almost all white, male, and lean Conservative. They aint likely Wendy Davis voters.

  4. Mainstream says:

    I agree with Tom in Lazybrook that Republicans could lose a handful of contests due to loss of votes to Libertarians. Political malpractice not to be more vigilant.

  5. brad says:


    You are correct. “Bill is partially correct here”. 1% correct, but 99% wrong.

    Keep deluding yourselves that Libertarian candidates will not impact Republicans.

    Did you not hear the primal scream from the GOP when the Dems accurately and legally bumped the Green candidates?!

    I am laughing that the GOP retroactively got the Greens back their ballot access last year in order to try to hurt the Democratic candidates chances, and thus improve their own chances by a point or so. The GOP clearly sees the erosion of their electoral chances now and in the near future. White grievance and artificial outrage can only go so far with more and more Texans seeing the GOP for what they are and moving over the party of the adults.

  6. David Fagan says:

    When both parties use the same tactic, only 4 days apart, in the same court how can there be a difference between the two? It’s as if the two main parties talked out the strategy and couldn’t agree on the right time to do it, but the how was the same. The Democrats need the Republicans just as the Republicans need the Democrats. If they look like a duck, they swim like a duck, and they quack like a duck, shoot them, they’re both ducks.

  7. brad says:


    Read the article.

    Then remove your question since it was already answered there.

  8. mollusk says:

    Speaking of Republican political malpractice, the Biden campaign now owns the domain.

  9. David Fagan says:

    Please make your point, Brad. One group tried the tactic of filling the same lawsuit on the last day to prevent a reaction, so what? That’s not enough to make anyone different. I wonder if the lawsuits were just the same only copy and paste Libertarian where Green used to be.

  10. Pingback: Republicans go to Supreme Court to remove Libertarian candidates – Off the Kuff

  11. mollusk says:

    @ Brad, I’ll take a crack at this…

    @ David Fagan – TL;dr: As Kuff said, you snooze, you lose. It’s explained in detail above, and the only long word not used in daily conversation is “mandamus” – which means an order from a court directed to another court or official.

  12. David Fagan says:

    Mollusks, yes yes, you snooze you loose, etc, etc, etc. That’s not the point I’m even discussing. I’m discussing the fact that both Republicans and Democrats are more alike than different. I also don’t believe that such high priced lawyers just accidentally missed a date by mistake. Both Democrats and Republicans wrote the law, passed the law, and now both are taking the law through the courts, so when Democrats position themselves as so extremely different than their opposition the Republicans, and Republicans try to do the same, they are both only struggling for power and they are both the same. Four days late for a lawsuit will not change that.

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