Let the Games Begin
Though the 88th Texas Legislature will not convene until Jan 10, a number of elections related bills have already been filed — at last count over 100. Keep in mind that the short 140-day session is designed — by necessity — to kill bills. In the 87th session, for example, 6927 bills were filed of which only 1073 (15%) were passed.
Stay tuned for future pieces that focus on the progress of bills that affect voter choice. Before doing so, though, it might be instructive to take a look at some shenanigans that went on during the 86th session (2019), the last time the Texas Legislature saw fit to chisel away at voter choice.
During the 86th session (as well as the 85th) a coalition of political parties and organizations convinced the legislature to consider a bill that would have increased voter choice in Texas. HB 4439 (identical to HB 3068 filed in 2017) would have addressed Texas’ outdated, unfair, and unnecessarily restrictive ballot access statutes for independent and minor party candidates. HB 4439 unfortunately never received a hearing by the House Elections Committee. in 2017, HB 3068 received a hearing but was not referred out of committee.
A federal lawsuit was subsequently filed in July 2019 challenging Texas’ elections statutes on constitutional grounds. Though that case continues to be adjudicated, a recent ruling by the presiding federal district judge may deliver at least some relief to non-duopoly candidates seeking ballot access.
Not to be deterred by simply killing any consideration of improved voter choice, two bills that would erode voter choice, HB 2504 and HB 4416, cleared the House Elections Committee for consideration by the full House. An amended HB 2504 ultimately became law. Debates on the House floor on these two bills were, let’s just say, enlightening.
HB 4416, authored by Rep. Mayes Middleton (R-Wallisville), was first up. In order for political parties to retain ballot status, current law at the time required political parties to achieve at least 5% of the vote in any statewide race every two years. HB 4416 would have raised the threshold to 10%. The bill was clearly targeted at the Libertarian Party as the only minor party that enjoyed ballot access in Texas at the time. The Green Party had failed to cross the 5% threshold in 2016 when their highest statewide vote was 3.28% for Texas Railroad Commissioner. The Green Party chose not to conduct the necessary petition drive (more on this later) in 2018 to get back on the ballot.
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 have a candidate on every statewide ballot. Given historical voting patterns, raising the threshold from 5% to 10% could cause the Libertarian Party to lose ballot access at some point. Historically, Libertarian candidates only garnered more than 10% of the vote when there was no Democratic challenger. It is extremely rare for a Libertarian to get even 4% of the vote in a contested race in Texas.
Grapevine chatter suggested that the Democrats planned to use this bill to embarrass Republicans by claiming that Republicans were anti voting rights. Questions from the floor by Democrats during debate reflected this position. Then, seemingly out of the blue, Rep. Middleton asked for a postponement until later that evening. Postponements are typically routine 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. Democrats clearly wanted to proceed.
When the bill came up again later that night, Rep. Middleton asked that the bill’s consideration be postponed until March 2, 2020 — the day before the 2020 primary elections, when the legislature would not even be in session! This action effectively killed the bill in what appeared to be a face-saving move. Perhaps Rep. Middleton was informed that the Libertarian Party would still have been on the 2020 ballot, since their 2018 candidate for the Court of Criminal Appeals Place 8 received over 25% of the statewide vote (the sole statewide race without a Democratic challenger).
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 candidates participating in primary elections. Minor parties, unless they are able to achieve 2% of the vote for governor, are required to select their candidates by convention, not by primary elections.
Filing fees paid by major party candidates are returned to their respective parties to help offset the cost of administering primary elections. HB 2504 specified that filing fees from convention parties, however, would be placed in the state or relevant county general fund, thus effectively enriching government at the expense of voter choice. Filing fees by minor party candidates would certainly inhibit their ability to field candidates, clearly Republican intention since they couldn’t keep the Libertarians off the ballot.
But Republicans weren’t finished. When HB 2504 came up for a vote on second reading, Rep. Springer succeeded in attaching an amendment that would reduce the ballot retention threshold from 5% every two years to 2% every ten years. During debate on the third reading of the bill the next day, Democrats assailed the amendment on the grounds that it had been slipped in at the last minute and left insufficient time for consideration. Apparently for Democrats, 5% was the baby-bear ballot retention threshold — 10% too hot, 2% too cold. For Republicans, it was perfect because it put the Green Party back on the general election ballot. If Republicans had to deal with Libertarians, the Democrats would have to deal with Greens.
HB 4416, which the Democrats opposed as being too restrictive, had the potential to eliminate the Libertarian Party from the ballot in future elections. On the other hand, 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 on HB 2504 as amended was 77 Yea (76R, 1D) to 57 Nay (57D).
HB 2504 was subsequently passed by the Senate and signed by the Governor — a mixed blessing for Texas’ minor parties. The Green Party now has ballot access through 2026 (they were off the ballot in 2018 and failed to cross the 2% threshold in either 2020 or 2022). Libertarians now have access through 2032 by virtue of their top statewide candidate garnering 3.01% of the 2022 vote for Texas Railroad Commissioner.
Other political parties that manage to gain ballot access will now have an easier time retaining access — at least until the Texas legislature decides to change its mind again. Republicans might just decide to return to the pre-2019 5% ballot retention threshold and force the Libertarian Party to conduct an expensive ballot access petition to get back on the ballot for the 2024 presidential election.
A ballot access petition in 2024 will require gathering over 81,029 signatures (1% of the 2022 statewide gubernatorial vote) in 75 days from registered voters who did not participate in either major party primary election. The cost is likely to exceed well over a million dollars.
