Topic: Bob Barr
Why Bob Barr Is Right Inside the Texas Election Code, or How I Learned to Stop Worrying and Love Tyranny.by RS Davis
(libertarian)
Friday, September 26, 2008
Election codes are like the tax code or the popularity of P. Diddy - utterly inscrutable. There has been a lot of talk since I published my last piece about Bob Barr losing his lawsuit to force the state of Texas to follow their own election code and deny McCain and Obama their place on the ballot, and most of the arguments against Barr are based on a faulty reading of the Texas Election Code (TEC).
I spent most of last night speaking to a former precinct, county, and state vice chair for the Texas Libertarian Party, working to get a fuller understanding of the TEC. His entire job was making sure that candidates met the state requirements to have LP candidates included on state-wide ballots, so his knowledge in this area is unimpeachable.
The drama centers around three chapters of the TEC - 172, 181, and 192. The first two determine how the nominating process works for a party, and the last one details how the two types of parties must certify their candidates.
Chapter 172 concerns parties that must nominate by primary:
CHAPTER 172. PRIMARY ELECTIONS
(A.) NOMINATING BY PRIMARY ELECTION GENERALLY
Sec. 172.001. NOMINATING BY PRIMARY ELECTION REQUIRED. Except as otherwise provided by this code, a political party's nominees in the general election for offices of state and county government and the United States Congress must be nominated by primary election, held as provided by this code, if the party's nominee for governor in the most recent gubernatorial general election received 20 percent or more of the total number of votes received by all candidates for governor in the election.
The Republican and Democratic Parties both fielded about 30% of the gubernatorial vote last time around, so they are considered Chapter 172 parties. The Libertarians weren't even dreaming of 20% of that vote, so this chapter does not apply to them.
Now, you might notice that the verbiage in the above passage indicates that this applies to nominees "for offices of state and county government and the United States Congress." Clearly, none of those are the presidential election.
That is irellevant, for reasons you will soon behold, but first, let's look at Chapter 181:
CHAPTER 181. PARTY WITH STATE ORGANIZATION
(A). NOMINATING BY CONVENTION GENERALLY
Sec 181.003. NOMINATING BY CONVENTION REQUIRED.A political party must make nominations for the general election for state and county officers by convention, as provided by this chapter, if the party is not required or authorized to nominate by primary election.
This chapter applies to Libertarians, The Constitution Party, and the Green Party, because none of them are eligible to nominate by primary, not having won 20% of the vote in the previous gubernatorial election.
For awhile in the 70's, the GOP weren't garnering 20%, so they fell back to being a Chapter 181 party.
Now, the only reason any of this is relevant is because under Chapter 181, there is a stipulation for automatic ballot access:
Sec. 181.005. QUALIFYING FOR PLACEMENT ON BALLOT BY PARTY REQUIRED TO NOMINATE BY CONVENTION.
(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.
Many of the people who are saying that the court got it right are using section b of that passage to justify it - that since the Republicans and Democrats got more than 5% of the votes in previous elections, they are afforded automatic access.
There are two problems with that theory.
First, the Democrats and Republicans are not Chapter 181 parties - they are Chapter 172 parties. Second - and most important - those two chapters have nothing whatsoever to do with certifying the candidates. They are merely the requirements for the parties to be allowed to field a candidate at all.
The chapter that deals with certifying candidates is Chapter 192:
CHAPTER 192. PRESIDENTIAL ELECTORS AND CANDIDATES
(B). PRESIDENTIAL AND VICE-PRESIDENTIAL CANDIDATES
Sec. 192.031. PARTY CANDIDATE'S ENTITLEMENT TO PLACE ON BALLOT.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.
Now, here's where this all gets relevant. There are three requirements that a party must meet to have their candidate included on the ballot.
Let's start with the third one. All the parties met the third requirement because the Libertarians, Greens and the Constitution Party qualify under 3b, while the Democrats and Republicans qualify under 3a. So, we can strike that off right away.
Now, let's skip back to rule number one. Clearly, all the candidates meet the federal requirements. We can strike that, too.
This leaves us with just rule number two, which stipulates that the parties must have the names of their candidates - as well as the names and adresses of their electors - turned in to the Texas Secretary of State at least 70 days before the election.
That date was August 25th. On that day, the only candidate that met all three requirements was Bob Barr. Obama didn't meet requirement number two until August 28th, and McCain didn't meet that requirement until September 4th.
So, clearly, neither Obama nor McCain met the requirements in the Texas Election Code to be included on the ballot, and by law, they should not have been. That also means that when the Texas Supreme Court denied Bob Barr's writ of mandamus asking them to force the Secretary of State to follow the law, they became complicit in election fraud.
And that is the way we are brought tyranny in America - not with the stomping of jackboots, but with complete indifference to the law and the certitude that even if someone cares enough to wade through confounding election law and scream that the emperor wears no clothes, no one will be listening.
The views expressed in this
article are those of RS Davis only and do not represent
the views of Nolan Chart, LLC or its affiliates. RS Davis is
solely responsible for the contents of this article and is not an
employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.
I hope Barr can appeal the decision and or try to take it to the federal court or file a civil rights complaint against the Texas court system for denyinghim equal protection under the law.
We've seen on many occasions this election that the rules only apply to the outsiders. Case in point, the Ron Paul delegates beeing instructed in Roberts Rules of Order. We saw what the republicans thought about that. The two party system is a joke, albeit an ugly facist joke.
My understanding from the reporter covering this story for the Dallas paper is that the Libertarians aren't doing anything to appeal. Sigh. Sick quote from the TX Dem party chair about how this is a win for the voter because they get to cast ballots for the candidate of their choice now. (Boo.) So it doesn't look like the Dems are going to push this, even though it would be to their advantage to be off the ballot. Not like it would be hard for them to get back on for the next election.
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