Texas Not Friendly Ground for Independents

It's not impossible — but it's pretty close.

If an independent presidential candidate wanted to get on the November ballot in Texas, at this point they would face sky-high hurdles — not the least of which being that the deadline has already passed. So someone like David French, a lawyer and writer rumored to be a prospect, would have to wage a costly legal battle against Texas' ballot procedures, considered among the most challenging in the country for independent candidates. 

"I think Mr. French would have a real, real hard time of doing it and would have to spend a lot of money," said James Linger, an Oklahoma attorney who worked for Ralph Nader when he sued to get on the ballot in Texas in 2004. "Even if the deadline were moved back, I think he would be in a hard situation in a place like Texas."

Ballot access in the Lone Star State has gotten more attention than usual during the 2016 presidential race as Republicans dissatisfied with their presumptive nominee, Donald Trump, contemplate an independent or third-party alternative. It was reported throughout Tuesday that French, a conservative lawyer from Tennessee, is considering running as an independent at the urging of Trump opponents such as Weekly Standard Editor Bill Kristol. 

Even those sympathetic to the anti-Trump cause acknowledge French's success would depend on overcoming many obstacles — including his ability to challenge procedures in Texas, whose May 9 ballot deadline was by far the earliest among all 50 states. 

"If David French cannot get ballot access deadlines in Texas and elsewhere reopened and/or extended, he could only appear in a handful of states and ... his strategy would have to be to keep both Hillary Clinton and Donald Trump from 270 electoral college votes, thereby sending the election to the House of Representatives," conservative commentator Erick Erickson wrote Wednesday. "It is a nearly insurmountable improbability." 

The May 9 deadline came and went in Texas without any candidates applying to run for president as an independent. To do so would have required 79,939 signatures, or 1 percent of the total votes cast for all candidates in the previous presidential election.

The next major deadline in Texas is June 23, which is when independent non-presidential candidates must apply for the ballot. Those filing under that deadline must have submitted a statement declaring their intent to run with the secretary of state's office by Dec. 14, 2015. 

At least one ballot-access expert, Richard Winger, believes the June 23 deadline is vulnerable to a legal challenge because, in his estimation, there is no state interest in making independent presidential candidates file 52 days before their non-presidential counterparts. That was a criteria established by Anderson v. Celebrezze, a 1983 case in which the high court struck down Ohio's March deadline for independent presidential candidates. 

“They have to come up with a state interest because this does harm voting rights," said Winger, the editor of Ballot Access News. Noting the high court "has never given any comfort at all to supporters of early deadlines," Winger estimated someone who takes Texas to court over its independent candidates deadlines would have a "75 percent" chance of prevailing. 

All of this assumes, of course, that French would have the time, money and support to take Texas and other states to court over their ballot procedures. French does not appear entirely deterred, especially in an election cycle that has defied expectations time and time again. 

"All the normal political rules apply," French tweeted Wednesday. "The conventional wisdom has been right. An underdog can't win. Right?"