In re Bob Barr, No. 08-0761

Update 9/19/2008: In an order issued yesterday, the Court denied Barr’s request for a stay. The petition remains pending on the docket.

Former Congressman Bob Barr, who is the Libertarian Party’s nominee for President (and who pioneered the modern use of Tina Fey glasses by national candidates) has filed a mandamus petition in the Texas Supreme Court to get both Barack Obama and John McCain off the Texas ballot.

The basic idea is that Texas requires that a political party certify the names of its candidates to the Secretary of State seventy days before the election in order to get those candidate names on the ballot. Tex. Elec. Code § 192.031. Barr’s theory is that because both major political parties held their conventions slightly after that deadline, they cannot meet Texas law and thus must be disqualified from the ballot. An earlier blog post on his site attaches copies of the filings of both major parties. (( It looks like both parties sent letters to the Secretary of State, and the Republican Party’s letter had a kind of placeholder (“John McCain and his running mate”) that they supplemented after Palin’s nomination. ))

Normally, it is third-party candidates who get squeezed off the ballot by rules requiring that certain numbers of signatures be collected by specific deadlines. I get the impression that the Libertarian Party is looking forward to trying to turn the ballot-access arguments around on the major parties. (( I haven’t seen Barr’s petition (although it is described in this blog post as being “quite poetic” — not always a desirable feature in an appellate filing). )) Update: Barr’s law firm has very helpfully put a link to the petition in their comment to this post.

Odds of success? Closer to Lehman Brothers than to AIG in the overnight trading. I’d actually put slightly higher odds that Barr’s mandamus petition manages to make bad law for future third party candidates (about the strictness of certain requirements) while simultaneously losing this action.

Setting aside the normal legal or equitable reasons reasons that a mandamus petition can fail, this one might confuse having a particular candidate’s name on the ballot with having the party’s slate of presidential electors on the ballot. Cf. Tex. Elec. Code § 192.062 (providing rules for party candidates who withdraw or are declared ineligible before election day; votes for that candidate still count toward the party’s slate of electors). My guess is that this reality of having a slate of presidential electors behind each candidate name on the ballot is why Texas law also restricts the ability to have write-in votes for president; unless that write-in candidate has also satisfied certain requirements (including submitting a list of electors to the Secretary of State), there would be no way to “count” votes for that write-in candidate toward anything real. Although their names don’t appear on the ballot, it’s the electors who count.

Barr will be holding a press conference Thursday “at the Texas Supreme Court.”.