As late as 1966, small political parties (i.e., other than Democrats and Republicans) could appear on the Texas ballot without restriction. A public rift inside the Constitution Party that year, however, caused the Texas Legislature in 1967 to enact a petition requirement for newly qualifying parties that basically continues to this day. The 1967 law exempted parties from petitioning if they polled at least 2% for governor in the previous election. Neither faction of the Constitution Party was ever again on the Texas ballot.
Current law stipulates that parties not exempted from petitioning must gather valid signatures in excess of 1% of the votes in the latest gubernatorial election (over 83,000 based on the 2018 vote) to gain ballot status. Signatures must be gathered during a 75-day petitioning window beginning after the March primary elections. Voters who participated in primary elections are forbidden to sign petitions. Successful petitioning in modern populous Texas could cost as much as $1 million or more.
The Libertarian Party first petitioned for ballot access in 1980, 1982, and 1986. The party was unable to successfully petition in 1984. In 1987, largely at the behest of the Libertarian Party, the Texas Legislature liberalized elections statutes to include a 5% ballot retention threshold based on any statewide race, in addition to the 2% threshold for governor.
In 1987 Democrats held 25 of 31 seats in the Texas Senate and 90 of 150 seats in the Texas House. Given that the Libertarian Party was founded by disgruntled Republicans, it is not surprising that a Democratic controlled legislature saw advantage in making it easier for the Libertarian Party to appear on the Texas ballot.
The Libertarian Party has been continuously on the Texas ballot since 1986. During that time, it had to petition to re-gain ballot access only once, losing its petition exemption in 2002, a year when every statewide race included both Republican and Democratic challengers. Since 1992, the only other general election without at least one statewide seat uncontested by both Democrats and Republicans was 2016. The Libertarian Party was able to barely retain ballot access that year, garnering just 5.28% of the vote for Texas Railroad Commissioner.
The only other small political party with recent ballot access in Texas is the Green Party. The Greens first successfully petitioned for ballot access in 2000 and were able to retain it for 2002. The Greens failed to reach the 5% retention threshold in 2002 and were unable to successfully petition to re-gain access for the 2004, 2006, and 2008 elections.
A Republican donor funded a petition drive that re-established Green Party ballot access for 2010 (unsuccessfully challenged in court by the Democratic Party). Greens were subsequently able to retain access for the 2012, 2014, and 2016 elections but failed to achieve the 5% retention threshold in 2016 when Democrats ran challengers in all statewide races. The Green Party was not able to successfully petition to get on the 2018 ballot.
Confirmed by a conversation with a highly placed Democratic Party operative, the Democratic Party has successfully promoted Libertarian Party ballot access by choosing to leave at least one statewide race uncontested (with the exception of 2016). Unfortunately for them, this policy has also allowed the Green Party to maintain at least sporadic ballot access as well.
Republicans have been playing this game too.
In 2019, the Texas Legislature passed HB 2504, a Republican-sponsored bill enacted along strict party line votes. The bill imposed a filing fee (for the first time) on small party candidates. Filing fees in Texas were originally intended to offset the cost of holding primary elections. Small parties have never participated in Texas primaries.
Since the imposition of filing fees from small parties would have an undetectable impact on state finances and would not fund small party primaries, the logical conclusion for this action was that Republicans wished to reduce the number of Libertarian candidates on the Texas ballot (the Green Party had already lost ballot status).
But that was not enough for Republicans.
An amendment attached to HB 2504 during House debate, granted relaxed ballot retention requirements for small parties, a provision clearly aimed at reinstating ballot access for the Green Party in the 2020 presidential election:
A political party is entitled to have the names of its nominees placed on the general election ballot … if the party had a nominee for a statewide office who received a number of votes equal to at least two percent of the total number of votes received by all candidates for that office at least once in the five previous general elections.
The effect of this provision, opposed by Democrats, was to grant the Green Party ballot access from 2020 through 2026 and continue Libertarian Party ballot access through 2028. Without this provision, the Green Party would have had to mount an expensive petition drive in order to appear on the 2020 presidential ballot in Texas.
Following an improved Democratic showing in 2018, Republicans were clearly looking to enhance their future electoral chances. Democrats, also seeing improved electoral chances, have nominated candidates for all statewide races on the 2020 ballot (President, US Senate, Railroad Commissioner, and six judicial positions). Game on.
Now for a bit of tea leaf reading with a few thoughts on the 2020 election and the 2021 legislative session.
Small party voting percentages in 2020 statewide races will clearly be impacted by the fact that Democrats and Republicans are contesting every statewide race. Libertarians have historically been able to garner at least 2% of the vote in at least one contested statewide race (though struggle to get 5%). Greens typically struggle to get 2% in contested races and have never been able to get 5%. The elimination of one-punch straight-party voting in Texas this year could boost small party down ballot percentages. However, intense contentiousness this year may work against small parties. We’ll have to see.
Under current law, neither party needs to achieve 2% of the vote to retain ballot access for the 2022 elections — when all of the state’s statewide executive positions (including governor) will be on the ballot. However, it appears unlikely that either party will achieve 5% in any statewide race, a result that would have been required under prior statutes in effect from 1987 to 2019.
We should thus beware the 2021 Texas legislative session.
If recent polling is any guide, the 2020 election in Texas will likely be seriously competitive. Some polls even suggest that the Democrats could win the presidential vote — for the first time since 1976. But no matter the outcome, 2020 may not bode well for small parties.
It would not be surprising to see the 2021 Texas Legislature rescind or modify the relaxed ballot retention requirements enacted by HB 2504 in 2019. The bill was hotly opposed by Democrats, and Republicans will undoubtedly see the benefit of either re-imposing the 5% threshold that was law from 1988 through 2018 or modifying the five-election-cycle provision.
Libertarians and Greens and other small parties seeking ballot access in Texas may wish to start gearing up for harmful legislation potentially heading their way in the 140 days from January 12 through May 31, 2021.