A Brief History

Of Texas Ballot Access for minor parties and independent candidates

by Richard Winger

1903

Texas created government-printed ballots in 1903.  A “party” was defined as any group that wanted to nominate candidates.  Parties that had polled at least 10,000 votes for Governor in the previous election were required to nominate by primary or convention.  New and small groups could nominate any way they wished, but they had to notify the state of their nominees by August, which was the earliest deadline of any state at that time.  The typical state back then only needed the candidate list by early October.  The Texas law made no provision for independent candidates.

1905

In 1905, provision for independent candidates was added.  They needed a petition of 1% of the last gubernatorial vote, due 30 days after the primary.  No one who had voted in a primary could sign for an independent.  Also in 1905, the primary was made mandatory for any party that had polled at least 100,000 votes for Governor in the last election.  This law, in effect, only applied to the Democratic Party.  The primary was in July.  In 1959 it was moved to May.

1963 laws were amended

In 1963 the law was amended to require independent candidates to file a declaration of candidacy by the same deadline that primary candidates were required to file.

Meanwhile, minor parties could appear on the ballot without any petition or any particular vote cast in the last election.  In 1963, though, the law was amended to require such parties to hold county conventions in at least 20 counties.  Previously they only had to have a state convention.

1966

In 1966, the Constitution Party, which had been active in Texas starting in 1952, split into two factions and the two factions held separate conventions and each claimed to be the rightful Constitution Party.  The Secretary of State finally worked out a compromise by which one faction agreed to use the label Conservative Party, and that party plus the Constitution Party both appeared on the ballot.  But the Secretary of State was so annoyed by having to adjudicate this dispute, he asked the legislature in 1967 to require a petition and a vote test for minor parties.  The legislature complied, passing the petition requirement for newly-qualifying parties that basically exists today.  The 1967 law exempted parties from the petition if they had polled 2% for Governor at the last election.  Back then Texas elected its governor every two years.  Neither the Constitution Party nor the Conservative Party survived the 1967 law change; neither of them had polled as much as 2% for Governor in 1966, and they were not able to petition.

1975

In 1975 the legislature amended the independent petition procedure to say that independent presidential nominees were not permitted.  In 1976 Eugene McCarthy sued Texas over that change, and won in the U.S. Supreme Court.

1977

In 1977 the legislature reinstated the independent presidential petition, but wrote the new procedure so that independent presidential candidates needed a petition of 1% of the last presidential vote, which was harsher than the old law, which had been 1% of the last gubernatorial vote.  By then Texas only held gubernatorial elections in midterm years, and governors had a 4-year term.

1987

In 1987 the legislature liberalized the law on how a party remains on the ballot, after Libertarians successfully lobbied.  The new law said a party could remain on if it polled 5% for any statewide race, in addition to the old 2% gubernatorial vote test.  Although 5% might sound more difficult than 2%, in practice it was easier, because Texas always has many statewide partisan offices, and generally one or the other major party doesn’t run a full slate.  When a minor party nominee only has one major party opponent, he or she always polls a much bigger vote than in a race with both a Democrat and a Republican.

Also in 1987, the legislature moved the primary from May to March.  And it passed a separate law moving the independent presidential petition deadline from July to May.  The presidential independent petition deadline was not keyed to the date of the primary, so if the legislature had only moved the primary from May to March, that would not have injured independent presidential candidates.  Given that the U.S. Supreme Court in 1983 had ruled that early deadlines for independent presidential candidates are unconstitutional, it was irrational for Texas in 1987 to move the independent presidential petition deadline.

But the independent deadline for office other than president was keyed to the date of the primary, as was the deadline for new party petitions, so the 1987 change in the primary date from May to March automatically made those deadlines earlier.

1993

In 1993 the legislature required that groups that intended to petition must notify the state by January 2 of the election year.  I don’t know what caused the legislature to pass this law.  No party had successfully petitioned in Texas since 1988, when the New Alliance Party had petitioned.  The Libertarians had last petitioned in 1986, and had not needed to petition again because they usually met the 5% vote test.  No party had successfully petitioned in 1984.  In 1982, both the Libertarian and Citizens Parties had successfully petitioned.

2017

The Texas Voter Choice coalition drafts the Texas Voter Choice Act- HB 3068- which establishes reasonable signature requirements and filing deadlines; authorizes voters to sign nomination petitions online; eliminates restrictions on voters’ right to sign nomination petitions; and eliminates unneeded filing requirements for candidates.