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Let the Games Begin, Mark Miller

Let the Games Begin

When it came to ballot access for independent and minor party candidates, the 86th Texas Legislature’s hypocrisy, ignorance, and gamesmanship were clearly on display. This is not surprising. Our elections statutes that apply to anyone who is not a Democrat or Republican is of little concern to those who represent us – except when they impact their chances of gaining or retaining power. Our esteemed legislators were clearly looking over their shoulders at the 2018 election results in anticipation of 2020.

A bill that would have repaired Texas’ outdated, and likely unconstitutional, statutes for independent and minor party candidates, HB 4439, never got a hearing in the House Elections Committee. But two other bills that would have made things worse, HB 2504 and HB 4416, cleared the Elections Committee and were considered by the full House. An amended HB 2504 became law. Debates on the House floor were, let’s just say, “enlightening”.

HB 4416, authored by Rep. Mayes Middleton (R-Wallisville), was first up. This bill would have raised the threshold for parties to remain on the Texas ballot from the current 5% of the vote in any statewide race to 10%. The bill was obviously targeted at the Libertarian Party, as this is the only minor party that currently enjoys ballot access in Texas.

Rep. Middleton, reportedly wishing to prove his conservative bona fides, was perhaps looking to future elections when the Democrats, given their 2018 showing, might likely fill out the statewide ballot. Raising the threshold from 5% to 10% would probably cause the Libertarian Party to lose ballot access for the 2022 gubernatorial elections, thus improving Republican party chances. Had HB 4416 passed, the Libertarian Party would still be on the 2020 ballot – their 2018 candidate for the Court of Criminal Appeals Place 8 received over 25% of the statewide vote (the sole statewide race without a Democrat running).

Grapevine chatter suggested that the Democrats planned to embarrass the Republicans with this bill by claiming that Republicans were anti “voting rights”. Questions from the floor by Democrats reflected this position. Then, out of the blue, Rep. Middleton asked for a postponement until later in the evening. Postponements are typically routinely and unanimously granted. In this case, however, a Democratic legislator demanded a recorded vote. Postponement was granted by a vote of 78 Yea (77R, 1D) to 69 Nay (5R, 64D). Republicans must have needed to talk. Then when the bill came up again later that night, Rep. Middleton asked that it be postponed until March 2, 2020 – the day before the 2020 primary elections, when the legislature is not even in session! This action effectively killed the bill by a face-saving move.

Next up was Rep. Drew Springer’s (R-Muenster) HB 2504, a bill that would require minor party candidates to pay the same filing fees that previously only applied to parties who participate in primary elections. Filing fees were originally introduced to offset the cost of State-funded primaries. Minor parties, unless they are able to achieve 2% of the vote for Governor, select their candidates by convention and therefore place no burden on Texas taxpayers. As might be expected, HB 2504 was opposed by the Libertarian Party since it would have placed an additional financial burden on its candidates and served only to enrich the State’s coffers.

Then a miracle happened. When HB 2504 came up for a vote on second reading, Rep. Springer succeeded in adding an amendment that would reduce the ballot retention threshold from 5% to 2% in any of the previous five general elections. During debate on the third reading of the bill the next day, Democrats assailed it on the grounds that the amendment was slipped in at the last minute and left insufficient time to consider this change. Apparently for Democrats, 5% was the baby-bear ballot retention threshold – 10% too hot, 2% too cold.

HB 4416, which the Democrats opposed as being too restrictive, would have eliminated the Libertarian Party from the ballot. HB 2504 as amended, which the Democrats opposed as too lenient, granted Green Party renewed ballot access. It was pretty clear that the legislative debate about “voting rights” boiled down to which major party wanted which minor party on the ballot. The final vote (as amended) was 77 Yea (76R, 1D) to 57 Nay (57D).

HB 2504 passed the Senate and was signed by the Governor – a mixed blessing for Texas’ minor parties. The Green Party now has ballot access through at least 2026, Libertarians through 2028. Other parties who manage to gain ballot access (another story for another time) will now have an easier time retaining access – at least until the Texas legislature changes its mind. But there’s a price to pay. Minor party candidates will now have to pay filing fees (or petition in lieu of fees), even though they do not participate in the State’s primary elections.

Fortunately, three other bills that would have been detrimental to non-duopoly candidates failed to even get committee hearings. But who knows what 2021 will bring?

  1. HB 740 (Reynolds) and SB 359 (Miles)

  2. Would have re-introduced straight-party voting (due to expire in 2020)

  3. HB 1204 (Anchia)

  4. Would have changed Texas to a top-two primary system, effectively eliminating most minor party and independent candidates from the general election ballot

  5. HB 4521 (Swanson)

  6. Would have required filing fees for independent candidates

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