This week, three Democratic campaigns achieved a momentary victory in court when the Third District Court of Appeals granted mandamus relief, temporarily blocking three Green Party candidates from appearing on the November ballot.
The three Green Party candidates failed to pay their filing fees.
The next court date will be held on August 26 wherein the judges will decide whether to issue a permanent order.
But this lawsuit highlights a recurring issue in politics across the country, if not just Texas.
Third-party candidates have enjoyed broad ability to appear on the ballot. While most of the time they have little to no effect on the outcome, there are times wherein third parties can play spoiler.
In the 2016 presidential election, there were eight states that finished closer than three percent in which the Libertarian and Green Party candidates, Gary Johnson and Jill Stein, respectively, amassed at least double the votes of the margin of victory between Donald Trump and Hillary Clinton.
In New Hampshire, which went for Clinton, that total was 13 times the margin while in Michigan, one of Trump’s most important victories, it was 20 times the Trump-Clinton margin.
Now, it’s not guaranteed that had those two candidates not been on the ballot their voters would have swung the result or even vote at all.
But the higher that ratio, the more visible impact the third parties had on the outcome.
Statewide in Texas, third-party performance has been far less significant because Republicans have won handily. One exception was Sen. Ted Cruz in 2018 who edged out Democratic challenger Beto O’Rourke. Libertarian Neil Dikeman ran but only pulled in 65,000 votes (0.8 percent) — less than a third of Cruz’s margin of victory.
This worry among Democrats has been building, especially regarding the Green Party and due to the 2016 presidential result. Most Green Party voters share at least some priorities with the Democratic Party and the latter believes the bulk of the former’s voters would swing their way should it disappear.
And it is this fear that has driven candidates like Wendy Davis to attempt to avert that potential roadblock.
The Texas 21st Congressional District has been categorized as a “Toss Up” by perennial prognosticators Cook Political Report and Sabato’s Crystal Ball. The move is due, at least in part, to Davis’ flourishing fundraising campaign that has doubled Roy’s despite her only jumping into the race in July of last year.
Additionally, a Davis campaign internal poll showed a one-point difference between Roy and his Democratic opponent.
Mitt Romney won the district by over 20 points in 2012 but Donald Trump’s margin of victory waned drastically to 10 points.
The Democratic Congressional Campaign Committee named TX-21 as one of its targeted races across the country.
This wasn’t the case until the 86th Legislature which passed House Bill 2504 instituting those prerequisites. Before then, no such benchmarks were required as the Green Party nominated its candidates by convention rather than a typical electoral primary. The law put the third parties on the same level as the major parties in terms of these ballot access requirements.
This law was challenged by the Green and Libertarian parties in court, but the various suits have yet to be ultimately decided. The federal case is set to be adjudicated next year.
But in this lawsuit, only the Green Party candidates were named. For example, the Libertarian nominee, Arthur DiBianca, will be on the ballot as the court’s temporary restraining order did not order him to be removed along with Wakely.
After news of the order, Wakely tweeted, “Unlike [Rep. Chip Roy] who is willing to let the voters of TX21 decide who they wish to represent them in Congress, the [Wendy Davis] campaign & the [DCCC] have filed for a restraining order to silence [our] progressive campaign.”
Not only does Wakely have the potential to siphon off votes from the two major-party candidates, but he’s also been on the ballot before as the 2016 Democratic nominee against then-Congressman Lamar Smith.
In that contest, Wakely received nearly 130,000 votes but finished in a distant second to Smith.
He also ran in the 2018 Democratic primary for governor.
Wakely’s opinion of the Davis campaign motivation is slightly different. In an interview with The Texan, Wakely said his campaign commissioned a poll that showed a three-way tie between the candidates when voters were told where the candidates stand on Medicare-for-All — Wakely for it and Davis and Roy against.
In addition to Medicare-for-All, Wakely is in favor of banning fracking and flaring.
When asked why he did not fulfill the fee or the petition requirement, Wakely said not enough time was available to gather signatures since they had to wait until after the runoff and that his financial resources paled in comparison to Davis’.
“In the suit, they say all candidates should pay the filing fee out of equality but didn’t name the Libertarian in the suit,” Wakely emphasized, insinuating a specific targeting of the Green Party candidates.
He further added that he will be voting neither for Roy nor Davis in November.
Wakely concluded, “The DCCC targeted us to stop us from talking about Medicare-for-All.”
The temporary injunction has been appealed, but a decision must be made by August 28 when the secretary of state must certify the party nominees on the ballot. It is also too late to become a write-in candidate.
The Davis campaign did not return a request for comment.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad watching and quoting Monty Python productions.