2%, 5%, 10% … More?

As recently as 1966, small political parties in Texas could appear on the Texas ballot without restriction. A public rift in the Constitution Party that year, however, caused the Texas Legislature to require a 2% voting threshold for Governor to retain ballot access in subsequent elections. At that time, Texas Governor was on the ballot every two years, though a constitutional amendment passed in 1972 increased the term to four years.

In 1987, largely at the behest of the Libertarian Party, the Texas Legislature liberalized statute to include a 5% ballot-retention threshold for any statewide race, in addition to the 2% threshold for governor. This remains the law today.

Texas statute is not all that clear when it comes to ballot retention (I’ve included the relevant statutes at the end of this blog). I’ll summarize.

Section 181.005 QUALIFYING FOR PLACEMENT ON BALLOT BY PARTY REQUIRED TO NOMINATE BY CONVENTION contains the provision for the 5% statewide race threshold,

... in each subsequent general election following a general election in which the party had a nominee for a statewide office who received a number of votes equal to at least five percent of the total number of votes received by all candidates for that office.

But Section 172.002 NOMINATING BY PRIMARY ELECTION AUTHORIZED contains a slightly different provision,

... a political party's nominees in the general election ... may be nominated by primary election ... if the party's nominee for governor in the most recent gubernatorial general election received at least two percent but less than 20 percent of the total number of votes received by all candidates for governor in the election.

This provision appears to say that 2% or greater for governor qualifies the party for ballot access in subsequent election years, with the additional requirement that it participate in primary elections instead of selecting its nominee by convention. In 2005, LPTexas received a ruling from the Texas Secretary of State affirming this interpretation.

Note that a political party that achieves 20% or more of the gubernatorial vote is required to participate in primary elections.

What does all this mean for 2018? Here’s a summary of the four possibilities.

  1. If the LPTexas nominee for governor garners less than 2% of the vote, and if no nominee for statewide office achieves 5% or greater, the party will need to petition to get back on the ballot for the 2020 presidential election. This is a very expensive and difficult endeavor.
  2. If the LP Texas nominee for governor garners less than 2% of the vote, but if at least one nominee for statewide office achieves 5% or greater, the party will retain access as a convention party in 2020.
  3. If the LP Texas nominee for governor garners 2% or more of the vote, but none of the nominees for statewide office achieves 5% or greater, the party will be required participate in 2020 primaries to be on the general election ballot.
  4. If the LP Texas nominee for governor garners more than 2% of the vote, and at least one of the nominees for statewide office achieves 5% or greater, the party can choose to participate as either a primary or convention party in 2020.

Number 4 sounds most appealing to me. But wouldn’t it be more fun to get at least 10% in a race that included both Democrats and Republicans? That, my friends, would shake up Texas politics.


TITLE 10. POLITICAL PARTIES
SUBTITLE B. PARTIES NOMINATING BY PRIMARY ELECTION
CHAPTER 172. PRIMARY ELECTIONS
SUBCHAPTER A. NOMINATING BY PRIMARY ELECTION GENERALLY
Sec. 172.002. NOMINATING BY PRIMARY ELECTION AUTHORIZED. (a) Except as otherwise provided by this code, a political party's nominees in the general election for offices of state and county government and the United States Congress may be nominated by primary election, held as provided by this code, if the party's nominee for governor in the most recent gubernatorial general election received at least two percent but less than 20 percent of the total number of votes received by all candidates for governor in the election.

SUBTITLE C. PARTIES NOMINATING BY CONVENTION
CHAPTER 181. PARTY WITH STATE ORGANIZATION, SUBCHAPTER A. NOMINATING BY CONVENTION GENERALLY
Sec. 181.005. QUALIFYING FOR PLACEMENT ON BALLOT BY PARTY REQUIRED TO NOMINATE BY CONVENTION. (a) To be entitled to have the names of its nominees placed on the general election ballot, a political party required to make nominations by convention must file with the secretary of state, not later than the 75th day after the date of the precinct conventions held under this chapter, lists of precinct convention participants indicating that the number of participants equals at least one percent of the total number of votes received by all candidates for governor in the most recent gubernatorial general election. The lists must include each participant's residence address and voter registration number.
(b) A political party is entitled to have the names of its nominees placed on the ballot, without qualifying under Subsection (a), in each subsequent general election following a general election in which the party had a nominee for a statewide office who received a number of votes equal to at least five percent of the total number of votes received by all candidates for that office.

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