WASHINGTON — Independent presidential candidate Rocky de la Fuente has sued the Texas secretary of state in a last-ditch bid to get his name on the state’s ballot.
De la Fuente, a California businessman who previously ran in the Democratic presidential primary, filed a preliminary injunction request in U.S. District Court in Austin on Sept. 8. If the court rejects his plea to have his name added to the ballot, the suit also seeks to have him included on the list of declared write-in candidates in the state.
Under Texas ballot access requirements, independent presidential candidates have 68 days to gather 79,939 valid signatures — 1 percent of the total votes cast in the state in the 2012 presidential election — from voters who did not participate in either the Democratic or Republican primaries.
The deadline for independents to file in Texas was May 9, a month before any other state, before either of the two major parties had selected their nominees, and also before the filing deadline for independent candidates running for other offices in Texas.
“This is obviously an undue burden to independent presidential candidates seeking access to the Texas ballot,” de la Fuente’s lawyers wrote.
A provision known as the “sore loser” law prevents candidates who run in a party primary from also running as an independent. De la Fuente’s lawyers argue that this provision adds an additional burden that is not prescribed in the Constitution.
“These requirements just need to go,” said Matthew Sawyer, one of two lawyers representing de la Fuente. “It’s kept people from qualifying left and right.”
De la Fuente’s application to become a write-in candidate in Texas was also rejected earlier this month because he participated in the Democratic primary. His lawyers argue that this was a misapplication of the “sore loser” law, which they say should apply only to independent candidates and not write-ins.
Texas election lawyer Buck Wood, who has tried similar cases at the state level, said it would be “almost physically impossible” for de la Fuente to receive a favorable ruling to get his name added to the ballot this late in the process.
The deadline for military and overseas ballots to be mailed out is Sept. 24. Though a court would have the ability to order the secretary of state to reprint ballots, judges take into consideration the level of disruption that a ruling would cause to the election and have historically been reluctant to intervene so late in the process.
But it would be less burdensome for the state to add someone to the list of declared write-in candidates. As recently as last Friday, independent Evan McMullin was certified as a write-in after replacing an ineligible elector.
Wood said that the 5th U.S. Circuit Court of Appeals is particularly hesitant to strike down ballot access laws, as demonstrated by Ralph Nader’s failed effort to get on the Texas ballot as an independent in 2004.
Richard Winger, the editor of Ballot Access News, said it will be difficult for de la Fuente to secure injunctive relief at this point, but he is optimistic that de la Fuente could secure a declarative judgment after the election to change the law for 2020 if he continues to pursue the case.
“Since it would be after the election, the judge would be much more relaxed because judges hate to decide who should be on the ballot,” Winger said. “We have a far greater chance of success after the election to change the law for 2020.”
Winger said he believes that de la Fuente will follow through and take the case into next year, even though it will be too late to affect this election.
“Rocky understands that what he’s doing has historical importance that is bigger than just him,” Winger said.
As of the filing date of de la Fuente’s complaint, he had qualified for the ballot in 18 states. In five states he will be the American Delta Party candidate, in two states he is on the ballot as the Reform Party candidate, and in 11 states he will appear on the ballot as an independent candidate.
The suit will be heard in court next Wednesday. The secretary of state has yet to file any defense in the case.
Author: Jamie Lovegrove, Washington Correspondent