In a surprising development, it appears that scrappy little Libertarian Party candidate Bob Barr may have essentially won the presidential election in Texas by default. It seems that the two major parties failed to file their candidate selections with the Secretary of State by the statutory deadline, with the result that by law they cannot appear on the ballot, even as write-ins. In a press release on Wednesday Barr's campaign manager, Russell Verney said: "Unless the state of Texas violates its own election laws, Congressman Barr will be the only presidential candidate on the ballot…Texas law makes no exceptions for missing deadlines."
It seems like an extraordinary oversight to fail to register your candidates in the state with the second-most electoral votes (34), but apparently circumstances conspired against Obama and McCain. First, the nominating conventions were held much later than usual this year, so candidates were not formally selected before the deadline. Second, in 2005, after the last presidential election, the Texas legislature changed the filing deadline from 60 days in advance of the election date, to 70 days in advance of the election date. To be eligible, the candidates would have had to file by August 26th, a deadline which they appear not to have met.
This assumes that the information from the Barr campaign is correct. The Texas Secretary of State is not required to certify the filings until 8 days after the filing deadline, so the official list of candidates may not be an accurate source of information. I have a call in to the Secretary of State's office to confirm that the two major candidates did not file by the deadline. However, the Barr campaign was reachable, and their Media Coordinator told me that they had talked to the Secretary of State and verified the situation, so it sounds legitimate.
Obviously, the Democratic and Republican parties in Texas will do everything they can to straighten out this mess, and they have a reasonable argument that the deadline was unfair, since their candidates weren't even officially selected in time to file. If they go to court they can probably win a change on that basis, and the Barr campaign does not intend to oppose their efforts to get on the ballot, because they believe that more choices work to the benefit of the voters.
This situation does raise important questions about the issue of ballot access and unreasonable measures taken by some states against third party and independent candidates. As events unfold in Texas, the Barr campaign has been fighting for ballot access in a number of states, including states with strong Libertarian constituencies, like West Virginia and Maine which have very early election deadlines or extremely challenging filing requirements, usually requiring huge numbers of voter signatures. Barr is currently on the ballot in 41 states and expects eventually to be listed in 48 states, at considerable expense, and after filing lawsuits in several cases.
As usual, the Libertarian Party will be on the ballot in more states than any other third party, and will be running far more more local candidates than anyone but the two big parties. Barr is currently polling at 6% nationwide, and in double digits in some states, according to the latest Zogby poll. That a party and candidate with this much support should be having trouble getting on the ballot in many states, and will likely not be included in any of the presidential debates, raises serious concerns about the stranglehold which the two incumbent parties have on the electoral process.
The bizarre situation in Texas ought to be sending us all a message. If the major parties can't even file properly under their own electoral rules, then perhaps it's time to make those rules more reasonable and open up the electoral process to give the people more of a voice.