Texas is the Reason that the Candidate's Dead

David Weigel | September 17, 2008

I've held off on blogging Bob Barr's unusual Texas ballot situation until now because I figured it was a distraction. The basics: Barr went through the excruciating process of getting on the ballot, was certified, and then noticed that no other party had done the work. Not the GOP, not the Democrats.

But the big two parties are the big two parties. Barr was playing by their rules. They'd eventually get on the ballot anyway, right?

Well...

Libertarian presidential candidate Bob Barr has filed suit that would keep voters from seeing the names Barack Obama and John McCain on their voting machines, saying they failed to follow the Texas law to get their names placed on the ballot. The Libertarians are claiming that both the Texas Democratic and Republican parties missed the deadline to certify their presidential nominees and report them to the Texas Secretary of State.

Barr got support immediately from the guy he didn't share a third party-promoting stage with last week, Ralph Nader.

Clearly this presents three options for the Democrats and Republicans... First, they could recognize that our crazy-quilt system of unfair ballot access laws harms not only independent and minor party candidates but also democracy processes. They could provide real reform to ensure that voters are able to vote for candidates of their choosing in this upcoming and future elections.

Second, they could take the same medicine they have been dishing out to grassroots candidates for decades, and have their candidates John McCain and Barack Obama join me as write-in candidates in Texas. But what is most likely is that they will choose the third option, which we have seen in the past. They will simply lean on state officials to ignore the law or direct the Texas legislature to push back the deadline after it expired. If this happens, then it is just another example of political bigotry and its double-standard in American politics: independent and minor-party candidates are strictly held to ridiculous requirements to participate in democracy, while the two-party duopoly are given a privileged pass.

I wouldn't bet ten cents on Barr winning this case, but it's amusing to think what would happen if he did. Without Texas, McCain could get to 270 (273, actually) electoral votes if he carried all the Bush states plus New Hampshire and Michigan and Obama didn't win Iowa. But he probably wouldn't be without Texas. The state allows write-in votes, and in 2006 the GOP nearly won a House seat (Tom DeLay's seat) with a write-in candidate whose name was literally too long to fit in the voting machine. It wouldn't be tough for McCain to win the state as a write-in candidate.

Horrifying headline explainer here.

Comments

|9.17.08 @ 10:55PM|#

Can we get a moneybomb to help Barr's lawsuit, if for no other reason to monkeywrench things? I'm sure $10M will buy a lot of high-priced lawyerin', maybe even the chance to win.

Eric Dondero|9.17.08 @ 10:58PM|#

Kind of ruins the whole thing that a Fascist like Ralph Nader, the same guy who had his "Naders Raiders" block Libertarian Party petitioners over the summer in Ohio, New Hampshire, and Connecticut, joined with Barr at the press conference.

How ironic that a guy like Nader, who has his supporters attempt to keep competitors off the ballot, would now be joining in with a call to keep other bigger parties off the ballot.

Ironic, or perhaps consistent with his anti-competitive views?

USCitizen|9.17.08 @ 11:02PM|#

I say: "Make them Follow the Law."

I hope no one has a 'funny name' that might be hard to spell as a write in.

|9.17.08 @ 11:06PM|#

Nick Gillespie is the Glenn Danzig of punditry.

Muscle Shoals Libertarian|9.17.08 @ 11:12PM|#

Bob Barr is a joke. His history of repression is well documented and inadequately repented. His ego rivals the late Benazir Bhutto's, Ralph Nader's and Ross Perot's. But for those who disagree, please list his incontrovertible Libertarian bona fides.

The Pope\'s Bear|9.17.08 @ 11:17PM|#

If Bob Barr took a shit in the woods and no one was there to smell it, would Dave Weigle still reflexively gobble it up?

db|9.17.08 @ 11:17PM|#

For a "joke," Muscle, you sure seem to be spending some serious thought and bile on Barr.

|9.17.08 @ 11:21PM|#

Texas does allow right ins but opps you have to file 70 days before the election. So the Democrats and Republicans have no better chance at a right in then they do in winning the case and getting their names printed on the ballot.

Seer|9.17.08 @ 11:21PM|#

Him winning the case would make me vote for Barr.

|9.17.08 @ 11:24PM|#

His history of repression is well documented and inadequately repented.

Break out the sackcloth and ashes kids! REPENT YOUR STATIST SINS!

Mad Max|9.17.08 @ 11:27PM|#

This isn't a regular election, where the right to vote is guaranteed by the federal or state Constitution. This is a Presidential election, where the Presidential electors (equal in number to the state's Congressional delegation) are appointed "in such manner as the [state] Legislature . . . shall direct."

The Texas legislature can choose to cut the voters out of the loop altogether, by deciding to choose the elecors itself, or to delegate the power of choosing electors to the Governor, or some other official.

The greater power includes the less - if the legislature can cut the voters out of the loop altogether, they can limit the ranger of voter choices. For exammple, the legislature could choose to nominate two slates of electors, and have the voters choose between them. Or the legislature could limit the voters to a choice among electoral slates whose sponsoring party met the filing deadline.

There are some affirmative limitations on the legislature's power, if it chooses to involve the voters. It can't discriminate against voters based on race (15th Amendment), sex (19th Amendment), nonpayment of tax (24th Amendment), or age in the case of persons 18 or older (26th Amendment). According to our lords and masters on the US Supreme Court, there's an extra restriction imposed by the 14th Amendment: No arbitrary restrictions on ballot access. The federal courts, to my knowledge, have never held Texas' statutory filing deadline to be arbitrary. Restrictions just as arbitrary have been upheld by federal courts in cases involving third parties.

The Demopubs have made this bed in Texas. Now it's time to make them lie in it. And if anyone ever deserved a kick in the nads, its the Demopubs.

Enter the Bob Barr campaign. I have my disagreements with Bob Barr, but on this I'm 100% behind him. Let the Demopubs discover levels of pain they've never known before - it's time they were visited by Nemesis and got their electoral underpants thoroughly wedged up their butt-cracks.

|9.18.08 @ 12:14AM|#

This will never happen, but since McCain and Obama aren't registered write-ins (and can't be), what would happen if Obama had 265 and it went to the House which threw the election to him. We would have a BACC (bad ass constitutional crisis).

It would of course drop our standing in the world's eyes and make 2008 an apex in American stupidity (when you add in Lehman, Fannie, Freddie, Bear and AIG).

JB|9.18.08 @ 12:55AM|#

If they didn't obey the law, they shouldn't be on there. If they end up on there anyways, then every law in Texas is null and void.

This will join the Spitzer/Rangle precedent as evidence that laws don't have to be followed.

|9.18.08 @ 1:03AM|#

Whether Barr wins the case or not, the question that will be decided is whether the courts in Texas have any integrity and/or interest in upholding the rule of law.

He's absolutely right, and I'll be very interested to see whether that's enough for him to win. I hear he's a competent lawyer.

-jcr

|9.18.08 @ 1:06AM|#

We would have a BACC (bad ass constitutional crisis).

No we wouldn't. That's how the system is supposed to work. People would be angry, no doubt, but it's a lot better than having it done by a Supreme Court ruling.

And yeah, I got tired of Barr's unlibertarian antics, but I hope to hell he wins this case.

|9.18.08 @ 1:08AM|#

The funny thing is, Obama could get a pretty big boost here if he agrees with Barr. He can say "oops, mea culpa, we didn't do the work to get on the ballot, Barr's right", and the upshot is advantage Obama.

Plus, Obama gets to play the good guy standing up for the poor little LP.

-jcr

Dave B.|9.18.08 @ 1:21AM|#

I highly doubt that it would boost Obama's image to support effectively disenfranchising an entire state. Better to leave it to candidates that don't have much to lose. Then Obama can publicly lament the result even if it's in his favor.

Nick|9.18.08 @ 1:47AM|#

"Him winning the case would make me vote for Barr."

Ditto. Still planning to write in "Fish Head," however.

joshua corning|9.18.08 @ 1:53AM|#

The Romans did it not the Jews....also i blame Massachusetts for Kennedy not Texas.

Captain Rule of Law|9.18.08 @ 2:49AM|#

McCain and Obama are like illegal immigrants on the Texas ballot, trying to enter it illegally. Conservatives* in particular are committed to the rule of law and against all forms of illegal immigration, so I'm sure Texas conservatives will demand the law be enforced. Or not.

*Bush conservatives.

ktc2|9.18.08 @ 6:30AM|#

The judge (whoever he turns out to be) will enforce the law, however the legislature will change the law and the duopoly will get their way.

Don't know why he's bothering to file suit. They're just going to change the law for themselves.

|9.18.08 @ 7:13AM|#

"Without Texas, McCain could get to 270 (273, actually) electoral votes if he carried all the Bush states plus New Hampshire and Michigan and Obama didn't win Iowa. But he probably wouldn't be without Texas."

I cannot comprehend these two sentences.

|9.18.08 @ 7:31AM|#

I hope this suit is successful. We need something to spice this election up that doesn't consist of a sensationalized trivial non-event involving McBama.

JMR|9.18.08 @ 8:17AM|#

The Republicans proved they want ever more obese government with the Sekula-Gibbs fiasco. Putting that hysterical woman on the ballot instead of supporting a responsible adult large-L Libertarian deliberately guaranteed a Democrat would win the seat. Clearly, Republicans preferred that outcome despite their election season rhetoric, because actions speak louder than words, whether or not the big government lovers will always easily *admit* to their love for big government...

|9.18.08 @ 8:44AM|#

Don't know why he's bothering to file suit. They're just going to change the law for themselves.

Of course they will. Both major parties will unite in ignoring the rule of law. And most of the electorate will see that the GOP and the Dems have an unfair and, IMHO, unconstitutional advantage in electoral politics. It is a point well worth making a stink at the garden party over.

I, Kahn O\'Clast|9.18.08 @ 9:00AM|#

I worked for the Federal Election Commission in the late 80's. I didn't last a year: the experience made me a libertarian.

Don't worry, the Reps/Dems will be on the ballot in Texas.

Bastards only follow their own rules when it suits them.

Tsu Dho Nihm|9.18.08 @ 10:02AM|#

I'm not really a Barr fan. My vote's going to Cthulhu again. But I do like this lawsuit. He won't win, we all know, but perhaps one or two people will notice the BS and realize just how corrupt the system really is.

Lefiti|9.18.08 @ 10:20AM|#

Like Ron Paul, Barr couldn't win if all the other candidates were killed in a plane crash.

|9.18.08 @ 10:24AM|#

Oh, come on. Texas should give the Republicans and Dems a do-over, since I'm sure they'd be reasonable and do the same if Barr or any other third-party candidate had made a similar technical slip-up.

(Similarly, prosecutors give citizens the same benefit of the doubt when they make a mistake and kill a cop they think is threatening their lives as they do when the situation is reversed--or even when the cops just have a twitchy trigger finger (see Sal Culosi).)

♪|9.18.08 @ 10:27AM|#

If it came down to Texas, and Barr won Texas, His electors would suddenly very powerful. They could be hard-nosed and cast their ballot for Barr (possibly kicking the election to the congress), or they could tip the election either way by being "faithless electors". THE PRESSURE!

That is a constitutional feature, but it would be universally seen as a bug in the system needing to be "fixed."

I'm also wondering about Nevada. If it goes GOP, the Democrats could have a case for a lawsuit since their electors weren't chosen at a state convention as required by state law.

robc|9.18.08 @ 10:30AM|#

1/4 note dude,

The Barr electors could also do some interesting things by splitting their votes. Like an Obama/Palin administration, hypothetically. Or McCain/Biden for that matter.

Lefiti|9.18.08 @ 10:38AM|#

If all elections were write-in ballots, Democrats would win for sure.

robc|9.18.08 @ 10:40AM|#

Since the vote in the House is by state, if an election is thrown to the House, by the current breakdown of members, assuming everyone votes party line:

Dems 26
GOP 22
Tie 2

If McCain/Obama arent on the Texas ballot, some House races become much more important - especially in 1 Rep states like North and South Dakota. If the GOP flips those, its suddenly 24-24 with 2 ties, and those 2 states are Arizona and Kansas, which would favor McCain. However, I think the Dems could easily flip Delaware, what with the Biden influence.

|9.18.08 @ 11:13AM|#

Q: "I highly doubt that it would boost Obama's image to support effectively disenfranchising an entire state."

Obama would not have disenfranchised the entire state (and neither would have Bob Barr). The Republican and Democratic parties would have only "disenfranchised" their candidates. All voters in the state of Texas would still be free to vote for legally registered candidates.

It would be exiting as well to see the Texas government try to circumvent the voters by exclusionary use of electors, as this might finally push Electoral College reform to the center of the table, as well as to clean out a lot of deadwood from the Texas statehouse. Texans don't typically react kindly to such shenanigans.

James B.|9.18.08 @ 11:17AM|#

Since the vote in the House is by state, if an election is thrown to the House, by the current breakdown of members, assuming everyone votes party line:

Dems 26
GOP 22
Tie 2

If McCain/Obama arent on the Texas ballot, some House races become much more important - especially in 1 Rep states like North and South Dakota. If the GOP flips those, its suddenly 24-24 with 2 ties, and those 2 states are Arizona and Kansas, which would favor McCain. However, I think the Dems could easily flip Delaware, what with the Biden influence.

Do you mean flip, like the Dems winning the Delaware Congressional Seat from the Reps, or flip meaning getting the Republican Mike Castle to cast his vote for Obama.

I think the 2nd case is much more likely.

And if no one has an electoral vote majority, Biden is a 100% lock for VP. There is no way the Dems don't have a Senate majority come January.

Mad Max|9.18.08 @ 11:30AM|#

"what would happen if Obama had 265 [electoral votes] and it went to the House which threw the election to him. We would have a BACC (bad ass constitutional crisis).

"It would of course drop our standing in the world's eyes and make 2008 an apex in American stupidity (when you add in Lehman, Fannie, Freddie, Bear and AIG)."

No, like Adamness said, the Constitution [Twelfth Amendment] makes specific provision for such a contingency - the House of Representatives would choose from among the top three vote-getters. Why would other countries complain about that, since in many Parliamentary systems the legislature *always* chooses the personnel of the executive branch. Even some systems with a popularly-elected President have a Prime Minister chosen by the legislature.

It is true that the House would vote by state, not by population, in choosing the President. This favors the small states, but that balances out the fact that the selection of electors favors the large states. When Presidential candidates agonize about swing states, they aren't thinking about Delaware (apologies to Joe Biden), but about large or middle-sized states.

Unlike Parliaments in some other countries, the House wouldn't be able to just pick one of its own members - it would have to choose among candidates who had been winnowed out through the electoral process and who showed signs of actual popularity.

"Don't know why he's bothering to file suit. They're just going to change the law for themselves."

Then the issue of ballot access would be on the legislative agenda in Texas. Maverick legislators could call on their colleagues to use this as an opportunity to make ballot access easier. Of course, the maverick members will be outvoted, but the cheating and finagling will be out in the open, with national media covering it due to the Presidential angle. What a teachable moment, even if it doesn't result in immediate legal reform.

"That is a constitutional feature, but it would be universally seen as a bug in the system needing to be 'fixed.'"

If it leads to one of the major parties losing, that will lead to grumbling from the losers. But conversely, the grumbling from the losers will make the winners more appreciative of the system.

JMR|9.18.08 @ 11:42AM|#

I must admit, this is funnier than Barr's previous legal efforts, but ultimately he's going to lose, as others have said, and in so doing he might be slowly painting himself -- if not Libertarians -- as lawsuit obsessed.

Mad Max|9.18.08 @ 12:10PM|#

"he might be slowly painting himself -- if not Libertarians -- as lawsuit obsessed."

Dude, this is *America.* "Land of the lawsuit-God bless her!" (Steve Dallas)

I hope you're not going to claim that the LP is more lawsuit-obsessed than, say, the Demopubs. A Repug lawyer sued to keep Barr off the ballot in Pennsylvania. Repug lawyers sued their way to the Presidency in 2000. Demopub prosecutors like Eliot [Ladies' Man] Spitzer bring charges against political opponents and targets of convenience on a regular basis.

Barr's Texas lawsuit is different in that it's actually meritorious.

|9.18.08 @ 12:11PM|#

I highly doubt that it would boost Obama's image to support effectively disenfranchising an entire state.

You must have missed the Democratic primaries. Obama went along with disenfranchising TWO states -- Michigan and Florida.

|9.18.08 @ 12:12PM|#

This is a great case to illustrate the corruption inherent in the system. Problem is, most folks are just fine with that. Democins and Republicrats are the only parties in America.

|9.18.08 @ 12:14PM|#

Barr's Texas lawsuit is different in that it's actually meritorious.

QFT

|9.18.08 @ 12:39PM|#

I'm gonna have to check on the Texas ballot access laws; I used to vote Libertarian in Wisconsin because, as I recall, any party that got X% of the vote was automatically on the ballot next time around.

That, my friends, is a reason to vote Libertarian even if the Lib candidate is otherwise not a Real Libertarian and/or Not Entirely Sane.

|9.18.08 @ 12:51PM|#

Glenn Danzig for President!

|9.18.08 @ 12:57PM|#

Wondering... Is there any other states in which Obama and McCain failed to get on the ballot in time?

|9.18.08 @ 12:57PM|#

ARE there...

|9.18.08 @ 12:59PM|#

Glenn Danzig for President!

Nah! Dave Mustaine.

|9.18.08 @ 1:57PM|#

A missing bit of information: The ballot deadline was before the party conventions. They had no legal candidate to put on the ballot until after the conventions voted.

robc|9.18.08 @ 2:01PM|#

A missing bit of information: The ballot deadline was before the party conventions. They had no legal candidate to put on the ballot until after the conventions voted.

Why do you think the LP schedules their convention in the Spring?

Scheduling your convention after a ballot deadline is stupid at an amazing level.

|9.18.08 @ 2:23PM|#

If all elections were write-in ballots, Democrats would win for sure.

If the 2000 election taught us anything, it's that many Democratic voters are too effin' stupid to work a punch card ballot. I'm not sure requiring these same folks to actually be able to write is a good idea for the donkey party.

|9.18.08 @ 2:39PM|#

"The Texas legislature can choose to cut the voters out of the loop altogether, by deciding to choose the elecors itself, or to delegate the power of choosing electors to the Governor, or some other official."

God, outside of Barr actually winning Texas' electoral votes, I can't think of a better results of this situation than the Texas legislature choosing to "cut the voters out of the loop altogether."

|9.18.08 @ 3:46PM|#

Not that the Demoplicans will obey the rules - rules only apply to 3rd parties - but suppose that Barr won Texas and those electors voted for Barr (sending it into the House) and Palin for VP instead of Root. We could have Obama - Palin - or, if the house deadlocked - President Palin. Certainly a lot of intriguing possibilities. But the same 2 party Judges which will keep Libertarians OFF ballots in other states will keep Demoplicans and Republicrats on the ballot in Texas. And yes - Barr is the ultimate hypocrite in all things.

perilisk|9.18.08 @ 4:29PM|#

Seems like Obama should not try to get on the ballot. He's got no chance of winning Texas, but if he needed to take Texas away from McCain to win the election, he could sue that the GOP broke the law without being accused of hypocrisy.

|9.18.08 @ 4:35PM|#

Anthony D. wrote, "God, outside of Barr actually winning Texas' electoral votes, I can't think of a better results of this situation than the Texas legislature choosing to 'cut the voters out of the loop altogether.'"

And is that because you actually believe in the original founding vision of separation of powers and checks-and-balances -- which emphatically and deliberately did not include the people's "right" to select the President -- or because you believe in that right and hope the people will be angered enough by "disenfranchisement" in Texas to sweep away yet one more pillar of our republican system?

|9.18.08 @ 5:01PM|#

Will Texas = Florida 2000.

Sure the legislature could change it, and that law could be challanged. It could get tied up for months. Next thing you know, Texas hasn't resolved it and it's time for the Electorial College to vote.

|9.18.08 @ 5:10PM|#

My money goes on the notion that the judge will have an excuse on why the law can be violated.

|9.18.08 @ 8:22PM|#

Let's follow the Constitution and the laws...

Why did the Texas Legislature pass such a ridiculous law?

Why didn't the parties know about the Texas law and why didn't Texas Democrat and Republican Chairpeople warn the parties and have the nomination process earlier?

Mingmei Wu|9.18.08 @ 9:23PM|#

Only one problem with the notion that the Texas legislature can change the law: the deadline has already passed. It is considered unconstitutionally to retroactively extend a deadline that has already passed (even the extension of the copyright laws, which were a blatant attempt to provide retroactive additional protection, did not extend copyright to those works that were no longer in copyright.

|9.18.08 @ 10:41PM|#

It wouldn't be the first time Obama was left off a ballot(Michigan).. I think they should follow the rules like everyone else. Why do they get special treatment? That would kill McCain's chances though if he didn't win Texas, 34 electorals down the drain.

Kevan|9.19.08 @ 9:04AM|#

How will this "kill" anyone's chances? People will write in who they want to vote for. Trust me...they will know who is running.

|9.19.08 @ 11:32AM|#

How will this "kill" anyone's chances? People will write in who they want to vote for. Trust me...they will know who is running.

You're assuming that Texas voters are smarter than the people in Palm Beach County who couldn't figure out how to use the butterfly ballot.

|9.19.08 @ 12:12PM|#

Bob Barr, prick that he may be, helps to detract from the pot-head stigma often tacked on to Libertarians when they are mentioned in the main stream media.

If you wanna break through to poor little brainwashed middle America, give them something they can believe in. Lower taxes and the reduction of power for a political duopoly that thinks it can do whatever it damned well pleases.

|9.19.08 @ 1:53PM|#

"""Only one problem with the notion that the Texas legislature can change the law: the deadline has already passed. It is considered unconstitutionally to retroactively extend a deadline that has already passed (even the extension of the copyright laws, which were a blatant attempt to provide retroactive additional protection, did not extend copyright to those works that were no longer in copyright.""""

There is no way Texas will not have Obama and McCain on the ballot. Laws will be damned. Appeals could take years.

|9.19.08 @ 6:02PM|#

Hurray for Bob Barr! Although my horse in this race is Obama, I applaud Bob Barr's lawsuit. The two party system has had a stranglehold on our democracy for far too long. The Republicans and Democrats have intentionally restricted ballot access for well over a century to keep other parties out of power. It's time for them to have a taste of their own medicine. I hope he wins his lawsuit, because it may cause the Republicans and Democrats to rethink their ballot access laws. We may end up with a real democracy, but I'm not holding my breath.

|9.20.08 @ 12:25AM|#

Bob Barr, prick that he may be, helps to detract from the pot-head stigma often tacked on to Libertarians when they are mentioned in the main stream media.

I'd just as soon have another pot-head in the LP. Let the demopubicans have the pricks.

-jcr

Jewel|9.20.08 @ 11:21PM|#

How fucking adolescent. The bitch can't win the presidency and he knows it. So what does he do? He acts like a 13-year-old girl.

The people of Texas -- the PEOPLE, get it? -- want both Obama and McCain on the ballot. The PEOPLE! Go ahead, poll that, and see what you get.

Nevertheless, this bullshit little schoolgirl is going to waste the time and money of the good people of Texas because he's a little 13-year-old bitch. Why? Because like all adolescents, that's all he's got (e.g., daddy and mommy say I can't drink beer, but THEY drink beer). Useless, tax-wasting, 13-year-old bitch.

Jewel|9.21.08 @ 10:47PM|#

Where'd the 09-21-2008 comments run off to David? Youknow, the ones whe someone said fuck the people

|9.22.08 @ 10:22AM|#

Jewel,
I'm going to go out on a limb here and guess that some of the good people of Texas (yes, the PEOPLE, I get it) want the rule of law. Since they can't have both the rule of law and both Obama and McCain on the ticket this seems like a reasonable conflict. However, I'm right and you're wrong, so there (sticks tongue out).

Anonymous|9.22.08 @ 11:54PM|#

@Kevan, who stated "How will this "kill" anyone's chances? People will write in who they want to vote for. Trust me...they will know who is running."

It would ruin the major parties chances of capturing the electoral votes of Texas because write-in candidates need to be certified 70 days before the election. As there are only 42 days left until the election, they would have missed that deadline as well.

MorningGlory|9.24.08 @ 8:47AM|#

The Texas Supreme court ruled on this yesterday (9/23). In a single-sentence ruling, they denied Barr's request without explanation. The full text is here.

Once again, the big dogs win and the underdog loses. America - what a country!