Prophylactics For Incumbents

I have had numerous exchanges on websites with Jim Riley, who is a strong advocate of a Louisiana-style “top two” system, popularly called the “open primary.”  On this post at <a href=”″>Ballot Access News</a>, Jim comments on a pre-filed bill in the Texas legislature that would make the candidate filing deadlines earlier.  He also criticizes political parties for wanting to officially nominate candidates, which his beloved “top two” prevents.  Here is my response to his comment (the 5th U. S. Circuit Court of Appeals, to be sure, covers Mississippi, Louisiana, and Texas):

There are lots of precedents for the unconstitutionality of an early April filing deadline for independent candidates. Mississippi has a January filing deadline for independents for Congress– the same as for party candidates.

A lawsuit against such early deadlines for independents in Texas and Mississippi would have a good chance of winning in the 5th Circuit, although it would likely first lose in district court. The problem is locating a plaintiff– or a financial backer– who is willing to cover the expenses of getting to the 5th Circuit (I have found a qualified plaintiff and an election law attorney who would take the case, but the potential plaintiff doesn’t have the necessary bucks).

I oppose early filing deadlines, which are little more than prophylactics for incumbents.

It’s interesting that you want to hamper political parties in performing their basic function of nominating candidates. A party, of course, has a First Amendment right to nominate/endorse candidates, but the state is not required to recognize those nominations/endorsements.

That’s one of the problems with your cherished “top two”/”open primary”: the state does not recognize party nominations in that system. In Louisiana, for example, this has led– more than once– to the national Republican Party and the state Republicans  backing opposing candidates in the same election.

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