Yesterday, Libertarian presidential candidate Bob Barr announced that he was filing a lawsuit against the Texas Secretary of State, proclaiming that since John McCain and Barack Obama had both missed the candidacy filing deadline under Texas law 192.031, both were ineligible and both should be knocked off of the ballot. Obviously, in a state with 34 electoral votes (and a state where John McCain leads by 21 points), this is big news. However, there are some inconsistencies in Barr’s case that should be hammered out.

Update: Several folks have pointed out that law 181 doesn’t pertain to the ballot. I’m still scratching my head on that one. What was much more informative was Steve Meier’s email:

What you are missing is that within the Texas law their is a specific
section for Presidential Elections. That is where section 192 resides.
Here it is very clear what the requirements are for a party to have its
Presidential Candidate and Vice Presidential Candidate on the ballot.

Section 181 has more to do with Texas Office holders, members of
congress. Elections that only take place within Texas.

Now for those elections which take place only in Texas the major parties
(required to select candidates by primaries and conventions) The parties
know who these will be long before the ballots need to be printed. The
only candidates not known are for the presidential election.

In 2005 the Texas legislature changed the deadline to the 70 days before
the election. But this year due to the Olympics so it seems both parties
held their national conventions latter then ever before. Now it was the
Democrats and Republicans in Texas who wrote the law you would think
they would have realized this was an issue and ether revised the law or
warned the National Parties and candidates that there is going to be a
problem.

The Texas supreme court was very clear in a decision they handed down in
2006 they warned the parties and candidates. re Francis 186 S.W.3d 534
(2006)

Finally, we emphasize several limitations on today’s holding. First, it
concerns only facial defects that are apparent from the four corners of
a candidate’s filings; it does not reach forgery, fraud, or other non
accidental defects discoverable only by independent investigation. …
Third, it does not allow political parties or candidates to ignore
statutory deadlines;….

The law according to Barr

The first thing to do is to look at the Texas law. Here’s the actual law:

A political party is entitled to have the names of its nominees for president and vice-president of the United States placed on the ballot in a presidential general election if:
(1) the nominees possess the qualifications for those offices prescribed by federal law;
(2) before 5 p.m. of the 70th day before presidential election day, the party’s state chair signs and delivers to the
secretary of state a written certification of:
(A) the names of the party’s nominees for
president and vice-president; and
(B) the names and residence addresses of presidential elector candidates nominated by the party, in a number
equal to the number of presidential electors that federal law allocates to this state; and
(3) the party is:
(A) required or authorized by Subchapter A of Chapter 172 to make its nominations by primary election; or
(B) entitled to have the names of its nominees placed on the general election ballot under Chapter 181.

But wait, there’s more

Now, this isn’t the full story. Mike D and Catch22 both pointed out that law 192.031 may not be the only way to get on the ballot. Both cite Texas election code 181.005, which reads:

(a) To be entitled to have the names of its nominees placed on the general election ballot, a
political party required to make nominations by convention must file with the secretary of state, not later than the 75th day after the date of the precinct conventions held under this chapter, lists of precinct convention participants indicating that the number of participants equals at least one percent of the total number of votes received by all candidates for governor in the most recent gubernatorial general election. The lists must include each participant’s residence address and voter registration number.
(b) A political party is entitled to have the names of its nominees placed on the ballot, without qualifying under Subsection (a), in each subsequent general election following a general election in which the party had a nominee for a statewide office who received a number of votes equal to at least five percent of the total number of votes received by all candidates for that office.

(emphasis mine)

As Catch22 points out,

If you review 192.031. PARTY CANDIDATE’S ENTITLEMENT TO PLACE ON BALLOT you find that there is nothing in this section indicating that this is the ONLY way to get on the ballot, rather it is one way. Nothing in this section says you cant get on the ballot unless you file by the deadline.

IF 192.031 is the ONLY means to get on the ballot then Barr would be correct, but it appears that 192.031 is just one of at least two methods to be listed on the ballot.

§ 181.005. QUALIFYING FOR PLACEMENT ON BALLOT BY PARTY REQUIRED TO NOMINATE BY CONVENTION. http://law.onecle.com/texas/election/181.005.00.html
Provides a differet way for parties that nominate by convention.

That’s not all…

Now, my journalistic nose kicks in. I wrote to Bob Barr’s press team, asking them the following:

Dear sir,
I’m a citizen journalist who was quite puzzled at your recent lawsuit against the state of Texas. After all, do you realize that this does NOT apply to the Republican or Democrat parties, as per Texas Election Code Section 181.005:

“A political party is entitled to have the names of its nominees placed on the ballot, without qualifying under Subsection (a), in each subsequent general election following a general election in which the party had a nominee for a statewide office who received a number of votes equal to at least five percent of the total number of votes received by all candidates for that office.”

Mr. Barr, several of my readers wonder why, if you can overlook this simple fact, why you should become president. Therefore, I am writing you this email. I challenge you to PERSONALLY respond. In return, I will, on my honor as a citizen of the United States of America, publish the full email on the website. I really don’t have a lot of respect for you right now, since it sounds like you’re trying to win by taking a non-existent low road. Please give me a chance to repair my trust in you.

To my surprise, I received an almost instant response from Andrew Davis, Deputy Press Secretary:

That law applies to qualifying for ballot status, not certifying your candidacy. For example, third parties must qualify through petition signatures to actually earn a spot on the ballot, unless they meet the standards specified in the election code you have cited. However, each political party that qualifies for a spot on the ballot must certify their candidates as required by Texas Election Code 192.031. The Republican and Democratic Parties failed to do so for John McCain and Barack Obama.

I responded with the following:

Andrew, thank you very much for writing back. However, I still believe you’re wrong. Again,

“A political party is entitled to have the names of its nominees placed on the ballot, without qualifying under Subsection (a), in each subsequent general election following a general election in which the party had a nominee for a statewide office who received a number of votes equal to at least five percent of the total votes…”

So if they’re entitled, they don’t have to put their name. 192.031 is the other way to be entitled. In fact, the other law specifically states:

“A political party is entitled to have the names of its nominees for president and vice-president of the United States placed on the ballot in a presidential general election if: [etc]”

Therefore, it seems to me that there are two ways. 192.031 and 181.005. After all, they use the exact same wording.

Davis responded with the following:

Andrew, again, they address two different processes.

The section you quoted addresses QUALIFYING for ballot status, which is achieved by retaining a certain percentage of the vote in the prior election.

The section we are referring to addresses the process AFTER qualifying. Just because a political party qualifies for ballot access still means they must complete the process for certifying their candidates. They are two separate processes.

Who is interpreting it correctly?

What is important to note is that Davis doesn’t actually prove that 192.031 is the only way to qualify for placement on a ballot. The law I cite, 181.005, specifically states that if a party received more than 5% in a previous election, they automatically are “entitled” to be on the ballot. 192.031 is a way to get on the ballot. Nowhere in the law does it say it is the only way. You are entitled to have your name on the ballot via 192.031. You are also entitled to have you name on the ballot if your party has more than 5% of hte vote in a previous election. The word entitlement is the key word in both laws. I may be a layman, but my understanding is that a word generally means the same thing.

Does it matter?

spiffie points out that:

For one thing, it’s never been read that way in the past. For another (more pragmatic reason), judges in Texas courts are partisan and elected.

While we can debate all day about his second point, his first point is certainly clear: it’s never been interpreted this way before. Because of that, Barr has a uncertain grounds. Therefore, most people (myself included) are guessing that this is mostly a political scheme to get attention, with a longshot chance of actually happening. Also, regardless, it seems to most a fairly underhanded way to go about business. If Barr is truly acting as a representative of change from the old corrupt regimes of the Democrats and Republicans, why is he using this dirty tactic?

Additionally, there is the point that the campaign may have filed anyway. FoxNews.com reports that:

Neither Obama nor McCain’s campaign would comment on the suit, but the office of Texas Secretary of State Esperanza “Hope” Andrade said it certified the Nov. 4 general election ballot on Sept. 3.

“We are confident that the ballot was certified properly and that Texans will have the opportunity to select the qualified candidate of their choice,” Andrade spokeswoman Ashley Burton said in a written statement to FOXNews.com.

If this is true, Barr’s last chance is gone. Completely gone. Because even if he could prove that 192.031 is the exclusive way to get on the ballot (highly suspect), it sounds like Obama and McCain already filed anyway. Again, if this is true, Barr sounds like he’s just trying for a publicity stunt so that he can get on Fox.