In re Bob Barr, No. 08-0761

As mentioned in this earlier post, the Libertarian presidential candidate Bob Barr asked the Texas Supreme Court to throw both McCain and Obama off the Texas ballot. The response briefs were filed yesterday.

This morning, the Texas Supreme Court denied the petition on the merits without further comment.

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.”.

Late last week, the Court requested full briefing on the merits in twelve more cases. See the full list

Although the Court’s first order list since returning from the summer was very short, it quietly moved eleven cases forward on the docket. After not having made any requests for briefing on the merits since mid-July, the Court requested full briefing in eleven cases on Friday.

This sort of request for full briefing takes the assent of three Justices and moves these cases one step closer to a decision on the merits.

The list of cases follows the break.
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In re Kim Brimer, No. 08-0651

This petition for mandamus was filed yesterday, seeking faster relief from the Texas Supreme Court than Brimer appears to expect from the Fort Worth Court.

The decision was certainly fast, but not what Brimer sought. The Texas Supreme Court order denying the mandamus petition is here.

Kim Brimer’s appeal in the Fort Worth Court remains ongoing. Brimer v. Maxwell, No. 02-08-00305-CV (docket sheet). In that case, the appellees’ brief (to be filed by Wendy Davis and representatives of the Democratic Party) is not due until August 21, 2008. As I understand it, Brimer sought emergency relief from the Texas Supreme Court trying to beat a printing deadline for this fall’s ballot. If relief is granted after that time, Davis’s name might be printed on the ballot even if she is later ruled ineligible.

How would that negatively affect Brimer? If he’s asserting a personal stake in holding his office through this election (which is a very strange “right” to recognize in a democracy, you have to admit), that wouldn’t be affected either way so long as he’s the last eligible candidate. My guess is that petition talks instead about trying to prevent public confusion with a mistaken ballot. (( I haven’t seen this petition, but having seen a few election-law cases, that’s my hunch. ))

Either way the Fort Worth Court decides the merits appeal, I would expect the fast filing of a petition for review in the Texas Supreme Court.

The Kim Brimer–Wendy Davis dispute has now made it through the trial court, again, with the trial court again ruling in favor of Davis’s eligibility.

Good coverage of this morning’s hearing (tuned a little more to the personalities and the politics than the dry legal argument) is available from the Fort Worth Star-Telegram’s Aman Batheja. (I commented in January that Batheja’s blog coverage of the (earlier) court of appeals hearing was particularly good.)

When the trial court’s judgment is available, I’ll link to it here.

Other earlier coverage here: “More Election Cases in the Pipeline,” July 6th, “Fort Worth Election Mandamus Denied,” January 14th, and “Cases in the News 1-12-2008”.

Pleasant Glade Assembly of God v. Schubert, No. 05‑0916. Majority opinion by Justice Medina, joined by Justice Hecht, Justice O’Neill, Justice Wainwright, Justice Brister, and Justice Willett. Chief Justice Jefferson dissenting, joined by Justice Green and (in part) by Justice Johnson. Separate dissents were also written by Justice Green and Justice Johnson.

Decided: June 27, 2008

Divided 6-3, the Texas Supreme Court ruled that a former church member could not recover emotional damages flowing from intentional torts allegedly inflicted as part of a religious practice.

The plaintiff (then a teenager) attended several church events at which members “laid hands” on her and prevented her from moving as she thrashed about struggling to get free. It was disputed whether the pinning down or the thrashing was cause or effect. When she later developed emotional problems related to the incident, she and her family sued. In a mandamus proceeding that percolated up to the court of appeals before trial, the court of appeals found most of her claims to violate the First Amendment, leaving in place only those claims the church did not challenge. (( As the majority here described it, that prior court of appeals decision threw out the plaintiffs’ claims for “negligence, gross negligence, professional negligence, intentional infliction of emotional distress, child abuse, and loss of Laura’s consortium.” None of those claims were before the Texas Supreme Court in this appeal. ))

At trial, she won a jury verdict on her remaining battery and false imprisonment claims. The jury awarded damages for pain and suffering, loss of earning capacity, and medical expenses. The trial judge rendered judgment for her on the false imprisonment claim. The court of appeals reversed in part, reducing the total damage award by eliminating the award for loss of future income as being too speculative. The court of appeals affirmed the remainder of the judgment. The court of appeals did not reach the constitutional questions because it held that the positions taken by the church in its prior mandamus proceeding were inconsistent with the constitutional arguments that the church advanced in this appeal.

The Texas Supreme Court disagreed and dismissed the entire case for violating the First Amendment. It held that tort claims seeking emotional damages for church practices would improperly require the courts to inquire about the church’s belief.
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In re Chambless, No. 07‑0767 (per curiam)

Decided: June 27, 2008

The Texas Supreme Court frames the question as “whether the trial court abused its discretion in awarding temporary grandparental visitation without affording the custodial parent an opportunity to be heard. See Tex. Fam. Code § 153.433.”

The Court’s answer is that — at least when all parties “concede [the custodial parent] is a fit parent” — a trial court must afford that parent a greater level of due process before granting grandparent visitation, even on an interim basis.

The “interim” order in this case was a strange one as well. It was issued after a hearing was held about whether or not to permanently grant grandparent visitation.
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