Texas Legislator Defends Texas Ballot Access Laws
June 4th, 2008This newspaper story, published June 3, quotes Texas Representative Leo Berman defending Texas ballot access laws for minor parties and independents. Berman says preventing voters who vote in a primary from signing for a new or previously unqualified party, or for an independent candidate, is the same thing as preventing a voter from voting in the primary of two different parties.
Signing a petition for a new party is not the same thing as voting for that party. Signing a petition for a new party is merely the voter’s telling the government that the voter believes the party is significant enough to be on the ballot. Obviously signing a petition for a new party is not the same as voting for a new party, because the U.S. uses secret voting, and a petition is not secret. Not only can the circulator see who signs the petition, so can all the other people who view that petition, including elections officials when they validate the petition. Furthermore, no other state has a primary screenout for petitions to qualify a new party, so obviously legislators in the other states don’t agree with Berman’s theory.
The Texas Secretary of State’s office also defended Texas’ law, saying that since two independent candidates for Governor appeared on the ballot in 2006, the law is reasonable. They ignore the fact that the 2006 petition requirement for independent candidates was 45,253 signatures, but the 2008 independent presidential requirement is 74,108 signatures.
One benchmark of whether a state’s ballot access law is too difficult, is to see if that state kept the person who placed 3rd in the presidential election off its own state ballot. Texas law kept the 3rd place finisher off its ballot in 1972, 1984, and 2004. Also in 1976, Texas law would have kept the 3rd place finisher off its ballot, except that the US Supreme Court intervened. The 3rd place presidential finishers who couldn’t comply with Texas law were John G. Schmitz in 1972 (American Party candidate), David Bergland in 1984 (Libertarian), and Ralph Nader in 2004 (independent). Eugene McCarthy in 1976 (independent) only got on because the U.S. Supreme Court ordered him onto the Texas ballot.
June 4th, 2008 at 7:27 am
What BS from the Texas Democratic’s.
June 4th, 2008 at 9:01 am
It would be hard to dispute that Ralph Nader has a “modicum of support” in Texas, but the ballot access laws make it very difficult to prove that the modicum exists.
Ballot access laws often make it much harder to prove a modicum of support than to acquire a modicum of support, and that’s the problem with them.
June 4th, 2008 at 10:04 am
Petitioning is not voting!
What’s next? Only one Proposition, Initiative, or Recall signature during an election cycle!
June 4th, 2008 at 11:00 am
Wait a minute, are you saying that I can’t petition for Nader in Texas because I voted in the Democrat primary?
June 4th, 2008 at 12:00 pm
It’s too late to petition for Nader in Texas. Texas has the earliest independent presidential deadline of any state. It is the only state with a deadline earlier than June. Most such deadlines are in July, August and September. Nader sued against the May deadline in 2004, but he lost in a court decision that was filled with major factual errors.
But if it weren’t too late, anyone could petition in Texas, but no one could sign if that person had voted in this year’s March primary.
June 4th, 2008 at 2:33 pm
Not only in this Rep’s argument bogus because of the huge disparity in the 2006 signature counts required from the 2008 counts.
In 2006, those gubernatorial candidates only had to put their resources towards achieving access to a SINGLE ballot line, where an independent presidential candidate has to fight for 51 ballot lines, some of which are steep battles.
More arrogance from people who don’t have to get a single damn signature for their ballot access.
June 4th, 2008 at 2:40 pm
Here in Texas, you miles well be moving mountains than introduce a third party or independent without a major party background..
June 4th, 2008 at 3:48 pm
Richard Winger yet again misunderstands and misstates the role of political parties in the nomination of candidates in Texas. He thinks of political parties in terms of an inner elite, who possess magical decoder rings, or some special knowledge, who place candidates before the voters at the general election.
But in Texas, it is the voters, through the primary, convention, and petition process that determine the nominees. If a party has demonstrated a modicum of support for its nominees in previous elections it maintains its ballot access. But this also means that it is required to choose those nominees in primary elections (for the larger parties) or conventions (for smaller parties) that are open to all voters who choose to affiliate with that party for that nomination cycle.
New parties are seeking to join this system, and are also required to make their nomination for their initial election by convention. Since they have not demonstrated support in past elections, they instead are required to count noses at their precinct conventions. It is these public meetings (along with primaries) that are the actual embodiment of political parties in Texas. Texas also permits new parties to supplement their participation count at the precinct conventions with petitions gathered over the next couple of months. In effect, the signatories are saying they would like to join in this new political nominating body, but were unable for some reason or other to attend a precinct convention.
Affiliation with an existing party through participation in primary or convention is a matter of public record, and so is affiliation through signing the petition of a new party. Voting in a primary or participating in a convention does not mean that you have to vote for the candidates of that party in the general election. But participating in the nomination process of one party means that you may not participate in the nomination process of another party.
The same principles apply to independent candidates. In that case, groups of voters that have not affiliated with a party (typically by voting in a nominating primary) may place a candidate on the general election ballot. They are effectively forming an ad hoc party for a particular candidate, office, and election.
In addition, if no one ran for nomination of a party for a particular office, a primary voter of that party is permitted to sign the nominating petition of an independent for that office. In essence, if there was the possibility of the voter having already helped nominate one candidate, they can’t help place another candidate on the ballot. There of course is no practical way to know whether a voter skipped over a give race on the primary ballot.
June 4th, 2008 at 4:00 pm
The Texas law against cross-participation is no more remarkable than the outlawing of cross-participation via a blanket primary (see ‘California Democratic Party v Jones’).
If someone were permitted to sign a Nader petition AND vote in the Democratic or Republican primary, it could have the effect of diluting or distorting the message of these parties. These Nader raiders might possibly also vote for a weaker candidate so that the Nader might have greater chance for electoral success. And if someone who participated in the primary could then switch to support Nader, it would encourage sore losers and factionalism.
June 4th, 2008 at 4:06 pm
The difference in signature counts is that the signature count for new parties and independent Statewide candidates is 1% of the vote cast in the last gubernatorial election; while that for president is 1% of the vote in the last presidential election. Demonstrably, there are more people interested in the presidential election and available for signing such petitions.
That a political party may also nominate a presidential candidate is incidental to its existence which is primarily for the purpose of holding primaries or conventions for the nomination of candidates for State offices.
June 4th, 2008 at 4:40 pm
Jim R you protest too much, and you also conflate two distinct concepts. There’s an important difference between voting in a primary election and signing a nomination petition. In the former case, you are supporting a candidate in an election; in the latter, you are supporting a candidate’s right to participate in an election. As this newsletter documents year in and year out, major party politicians are using discriminatory ballot access laws to deny voters the choice of voting for their competitors, without any justification except their own self interest. Sure, quote some boilerplate language about factionalism and sore losers, but the facts say you are wrong. See http://www.ballot-access.org.
June 4th, 2008 at 7:32 pm
Under Texas election law, the primary purpose of political parties is to provide a mechanism for the voters of Texas to participate in the nomination of the candidates for the party which they freely choose to affiliate with through the primary or convention process.
You are not merely voting in the primary, but you are affiliating (joining) that party for that election cycle. When you vote for John Doe in the Anonymous Party primary, you are not “supporting a candidate in an election”, you are joining with your fellow Anonymous member’s to select your party’s nominee.
You don’t have to voter in the Anonymous Party primary. You can attend the New Party’s conventions and help select their nominees. If you are unable to attend their convention, you can still sign a petition that will enable those who were nominated by those persons who actually participated in the nomination process, but you are still joining that group of voters.
If you don’t like any of the parties, you can join together with other non-affiliated voters and nominate candidates for the various offices by signing nominating petitions.
The law against multi-party affiliation is simply to prevent the type of activity that was possible under California’s blanket primary.
June 4th, 2008 at 8:22 pm
One more State with EVIL gerrymander MONSTERS having separate and unequal ballot access laws — due to the MORON party hack Supremes.
How soon before the Equal Protection Clause shows up in Texas — via Brown v. Bd of Ed 1954 ???
June 4th, 2008 at 8:32 pm
Many federal courts have said that a petition to place a candidate or a party on the ballot means that the signer wants that party or candidate on the ballot, as opposed to necessarily wanting to vote for that party or candidate.
The 6th circuit said in Anderson v Mills that a state may not require an independent candidate petition to say that the signer intends to vote for that candidate. The 4th circuit agreed in Socialist Workers Party v Hechler.
US District Courts have invalidated similar words on petitions forms for new parties: South Dakota couldn’t make the petitions read that the signer had affiliated with the party; New Mexico couldn’t limit the petition signers to people who had registered with the party; North Carolina couldn’t automatically change the party registration of the voter who signed, making the signer of that petition a member of the party; Nebraska party petitions couldn’t say that the signers pledge to vote for that party; Nevada party petitions couldn’t say that the signers represent the party; Kentucky couldn’t require the signers to be members of that party. The current ballot access case against the Tennessee party petition also challenges the Tennessee law that the signers be members of that party.
Footnote 12 of Hall v Austin, 495 F Supp 782, explains that a signature on a petition means that the signer wants that independent on the ballot. It doesn’t necessarily mean the signer expects to vote for that candidate.
June 5th, 2008 at 11:52 am
Contrary to Jim R’s comments, the legislators ARE the ones who have control of this situation. Ballot access for Nader and Greens this year has been even more difficult because this primary saw a record breaking turnout, making it even more difficult to find people who had not voted, let alone would sign a petition to all an independent or third party on the ballot.
June 5th, 2008 at 5:46 pm
Re #15. I never claimed that the Texas legislature was not responsible for Texas laws. The question is whether Texas laws are rational and reasonable. In 2006, Kinky Friedman ran ads telling people to save themselves for Kinky. There is no reason that the Naderists or Green Party could not have made the same sort of campaign.
What is to protect the Democratic, Republican, or Libertarian parties from Nader or Green raiders voting in their primaries and diluting their message, or voting for weaker candidates so as to boost the chances of Nader or the Green party nominees?
June 5th, 2008 at 6:53 pm
Re #14. Texas does not require voters in primaries to vote for the candidates that are nominated by the party. Texas does not require voters who sign a nominating petition for an independent to vote for that candidate. Moreover there is no requirement that they indicate such intent in order to vote in the primary.
What is the effect of a party primary nominating a candidate? He is placed on the general election under that party’s label. How does a candidate get placed on the general election ballot under a party’s label? He wins the party’s primary election. Being nominated and being placed on the general election ballot are indistinguishable.
Texas does not have party registration, so the NM and NC cases do not apply. In Texas, one affiliates with a new party by participating in its precinct conventions (or signing a supplementary petition). Affiliating with a party and participating in its nominating activities are identical.
Some States qualify new parties, who are then permitted to hold nominating activities; in other States the new parties choose their candidates, and then qualify the candidates by a petition.
Texas combines the two activities. A new party such as the Green Party nominates its candidates in the same way that an existing minor party such as the Libertarian Party does. The only difference is how the two qualify for the general election ballot. The Libertarian Party was pre-qualified on the basis of its past electoral support. The Green Party qualifies on the basis of the number of participants in its precinct nominating conventions (supplemented by petition).
Texas election law has been amended since McCarthy v Briscoe to provide for independent presidential candidates.
June 5th, 2008 at 8:29 pm
49 states do not bar primary voters from signing a petition for a new party. Only Texas does. Yet before 1967, Texas didn’t even require a new or previously unqualified party to submit a petition at all. Texas said any group that held county conventions in at least 20 counties, and a state convention, could be on the ballot automatically. No fees, no petition, and it worked fine. Texas never had a crowded regularly-scheduled general election ballot. The only reason Texas abandoned that system was because the Constitution Party got on the nerves of the Secretary of State in 1966.
June 7th, 2008 at 12:10 pm
Under Texas election law, the main role provided for political parties is the conduct of primaries and conventions for the purpose of nominating candidates. These primaries and conventions are open to any voter who chooses to affiliate with that party that year. It is the voters that affiliate with the parties who nominate the candidates. It is the voters who participate in the primaries or conventions that form the party.
Except in exceptional cases such as death or disqualification, the executive committees of the parties do not have the authority to fill nomination vacancies. Instead their role under Texas law is to organize to primaries and conventions where the voters choose the nominees.
The purpose of the state convention is to nominate candidates for statewide offices. The purpose of the county conventions is to nominate candidates for county and precinct offices (constables, JP’s, and county commissioners), and district offices for districts contained within a single county. There are also district conventions for multi-county district offices.
A party does not hold a state or county convention in order to be recognized as a party. Those are simply the fundamental activities of a political party under Texas election law.
The requirements for a political party in Texas are still that it hold a state convention, and that it hold county conventions in those counties where it is organized. A requirement of 20 counties is rather silly, given that the 20 most populous counties hold 17 million person, while the 20 least populous counties have 25,000 persons.
Neither the Democratic or Republican parties are organized in all 254 counties. The Libertarian Party appears to have 50 county chairs. So instead of requiring 20 county conventions, Texas counts actual voters who participate in the precinct conventions of the new party, rather than participating in the precinct conventions or primaries of an established party. What you are referring to as petitions, are actually supplementary to the head count at the precinct conventions.
The precinct conventions of new parties and non-primary established parties are held one week after the primaries. So a voter really has a fundamental decision, to participate in the nominating process of an established party, by voting in its primary, or to preserve their nominating authority for use at a precinct convention a week later, or to sign the petition of independent candidates.
Roughly 2/3 of Texas registered voters did not vote in either the Democratic or Republican primaries. So that left over 8 million voters for the Green Party to draw to their precinct conventions or sign their supplementary petition.
ps Crawford Martin or John Hill in 1966? Hill became SoS in March, 1966, and later served as Attorney General, and Chief Justice of the Texas Supreme Court. He died last year.