Texas is the Reason that the Candidate's Dead
David Weigel | September 17, 2008, 10:10pm
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.Mad Max | September 17, 2008, 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.
Mad Max | September 18, 2008, 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.
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