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State appeals court rules (mostly) against Libertarians in filing fee lawsuit

Here’s the story. It gets into the legal weeds, and I’m going to try my best to clear them out.

A state appellate court this week upheld a 2019 law that extended a requirement that candidates pay a filing fee or submit a petition to appear on the ballot to minor party candidates.

A district court found the fee was unconstitutional, siding with nine Libertarians who had sued, saying it was unreasonably burdensome. But the three-justice panel of Texas’ 14th Court of Appeals on Tuesday sided with the state, saying the plaintiffs did not make a strong enough constitutional argument to waive the secretary of state’s sovereign immunity to civil suits.

The law at issue, House Bill 2504, lowered the amount of votes a party needed to get in a statewide election to retain a place on the ballot. But it also added a requirement that candidates nominated at a convention — such as those in the Libertarian and Green parties — rather than through a primary had to pay a filing fee or gather petition signatures in order to be on the ballot. Previously, only major party candidates had to pay those fees.

The law “imposes reasonable and nondiscriminatory restrictions that are sufficiently justified by the State’s interest in requiring candidates to show a modicum of support to guarantee their names on the general-election ballot,” Justice Meagan Hassan wrote. “These are the same restrictions imposed on major-party candidates with respect to their participation in the primary election.”

The ruling Tuesday will not affect Libertarian candidates on the ballot this year.

There are a couple of active lawsuits challenging the new filing fee/petition signature requirements from HB2504, this one in state court which I had not blogged about before and a federal lawsuit that as far as I know has not had a hearing yet. I gave the state lawsuit a mention at the end of this post, mostly to note that the requirement to pay the filing fees was in effect in Texas despite the original order from Judge Kristin Hawkins, as it had been superseded by the state’s appeal. This lawsuit was partly about that now-not-in-effect injunction that enjoined the collection of the filing fees, partly about whether Secretary of State Ruth Hughs could be properly sued over this, and partly about the constitutionality of the fees in the first place. Let’s go to the opinion to try to unpack things.

The trial court granted Appellees’ request for a temporary injunction and enjoined Hughs from enforcing section 141.041 and the related advisory. The trial court also denied Hughs’s plea to the jurisdiction. Hughs filed separate appeals with respect to these decisions, which were consolidated into a single appeal.

For the reasons below, we affirm the trial court’s temporary injunction in part as modified and reverse and remand in part. We conclude the trial court erred insofar as it (1) denied Hughs’s plea to the jurisdiction with respect to Appellees’ claim challenging the constitutionality of section 141.041 and (2) improperly enjoined the enforcement thereof. We further conclude the trial court (1) properly denied Hughs’s plea to the jurisdiction with respect to Appellees’ claim challenging the advisory and (2) did not abuse its discretion by temporarily enjoining the advisory’s enforcement in part.

First, the appeals court denied SOS Ruth Hughs’ claim that she was immune to being sued for this. Harris County Judge Lina Hidalgo and then-Harris County Clerk Diane Trautman were also sued in their official capacities in the original petition, but they were not party to the appeal.

Second, the appeals court overturned Judge Hawkins’ ruling that the filing fees were unconstitutional. This was covered in the story and is the bulk of the opinion, which gets into some exceedingly mind-numbing detail. I consider myself a reasonably sophisticated layman for the purposes of reading and understanding legal writings, but boy howdy did my eyes glaze over in this part of the document. The bottom line is that the court concluded that the fees did not constitute an excessively burdensome requirement.

The matter of the injunction is where it gets a little tricky. Let’s skip ahead to the end, where that piece of business is addressed.

The trial court’s temporary injunction enjoins Hughs from enforcing section 141.041’s requirements at the time of the Advisory’s December 9, 2019 deadline or “at any other time.” We therefore construe the injunction to enjoin the enforcement of both section 141.041 and the Advisory.

We concluded above that sovereign immunity precludes Appellees’ claim challenging the constitutionality of section 141.041. Therefore, to the extent the injunction enjoins enforcement of section 141.041, the trial court lacked subject matter jurisdiction to enter the injunction.

Turning to the enforcement of the Advisory, […]

I’ll spare you a bunch of mumbo-jumbo to say that this means that while the law is constitutional and thus will not be enjoined, the enforcement of the law via the Secretary of State’s advisory that specified the minor parties’ need to collect filing fees or petitions was still in question. Let’s move up to the thrilling conclusion:

When injunctive relief is provided for by statute, we review the trial court’s decision on a temporary injunction application for an abuse of discretion. 8100 N. Freeway Ltd., 329 S.W.3d at 861. We do not substitute our judgment for that of the trial court and may not reverse unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonableness. Id.

As discussed above, we conclude that the Advisory conflicts with section 141.041 in part by impermissibly expanding the section’s requirements to all minorparty candidates seeking nomination at a convention. Considered in conjunction with Texas Election Code section 273.081, this conclusion supports the trial court’s finding that Appellees “are in danger of being harmed by a violation or threatened violation” of the Election Code. See Tex. Elec. Code Ann. § 273.081. Therefore, the trial court did not abuse its discretion by enjoining Hughs’s enforcement of the Advisory insofar as the Advisory required compliance with section 141.041’s fee/petition requirements by minor-party candidates who have not been nominated by the convention process. See 8100 N. Freeway Ltd., 329 S.W.3d at 861. Candidates who ultimately secured their party’s nomination as a result of the convention process, however, must comply with section 141.041. The injunction thus is erroneous to the extent that it relieves candidates nominated by convention of any obligation to comply with section 141.041 at any time. Therefore, we modify the injunction’s language by deleting the bolded text from the following paragraphs:

The Court ORDERS that Defendant Hughs is temporarily enjoined from refusing to accept or rejecting applications for nomination from
third-party candidates on the grounds that the applicant did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendants Hidalgo and Trautman are temporarily enjoined from refusing to accept or rejecting applications for nomination from third-party candidates on the grounds that the applicant did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendant Hughs is temporarily enjoined from refusing to certify third-party nominees for the general-election ballot on the grounds that the nominee did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendants Hidalgo and Trautman are temporarily enjoined from refusing to certify third-party nominees for the general-election election ballot on the grounds that the nominee did not pay a filing fee or submit a petition in lieu thereof at the time of filing or any other time.

The bolding is in the original, where the appeals court is quoting from Judge Hawkins’ order establishing the injunction. What this says is that the SOS and Harris County were enjoined from enforcing the filing fee requirements at the time that the candidates were being placed on the ballot, but not forever. These candidates were in fact required to pay the filing fee or collect the petition signatures – again, because the court ruled those requirements were legal. That was essentially the status quo when the Democrats successfully defenestrated the Greens, and it is my interpretation that this means the Libertarians would have been equally vulnerable to such a challenge if the Republicans had timely fashion.

All of this is my reading, and I Am Not A Lawyer, so those of you who know better please feel free to point out my idiotic errors. As to what happens next, the plaintiffs may appeal to the Supreme Court – they did not comment about that in the story – and of course there remains the federal challenge, though based on the Ralph Nader experience of 2004, I would not be holding my breath. Use the next year-plus between now and the 2022 filing period to figure out how to pay the fees or collect the signatures, that’s my advice. The Statesman has more.

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  1. David Fagan says:

    When House Bill 2504 went through the legislature, how do third parties lobby for their voice to be heard among two major parties determined to slow them down? Democrats don’t want the Greens, so the House Democrats won’t help, and House Republicans don’t want the Libertarians, so they won’t want to listen either. If equality in representation is what people want in the law, then the filing fee could be a percentage of the overall campaign finances the party has. So, IF the Republicans and Democrats pay this fee, then $5,000 is what percentage of their overall campaign finances? Apply that same percentage to the third parties and maybe that could give some equality to the situation.

    Did the third parties lobby the legislature for this point? I don’t know. Were third parties a part of the law writing process that people expect from a representative form of government? Idk. Would Democrats and Republicans (which can be referred to as Demreps, or Repdems because they are acting for both self interests) listen to them any way? Doesn’t look like it.

    The only way for third parties to get representation is through the courts, which is expensive. The Greens didn’t have the money, or they chose to use their money on campaigning. The Libertarians are now spending their money on lawsuits, so there’s less for campaigning.

  2. David Fagan says:

    Kuffner, you’re good at publishing campaign donations and financing, could you publish the campaign finances and donations of the Greens and the Libertarians?

  3. David Fagan says:

    This is SEPTEMBER 11, never forget.

  4. SocraticGadfly says:

    My advice is, beyond this year, let’s not make predictions until after that federal case starts — and a reminder that it’s about a lot more than just HB 2504.

    As for what would have happened had the GOP acted earlier against Libertarians this year? Nope. Not how I (and others at places like Ballot Access News) read it.

    Note to David Fagan: The addition of the filing fees hike was a late amendment to Springer’s original bill.

    Note 2 to Fagan: The federal suit is being brought by Greens, Libertarians and independents, and being pursued by a public interest law firm.

    Note 3 to Fagan: The filing fees suit is based in part on the fees for duopoly party candidates being used to (partially) reimburse the state for the costs of primary elections, which third parties don’t do, period. And independents certainly don’t do. (In turn, that and other issues aren’t exactly the same as Nader’s 2004 filing, which makes that also a note to Kuff.)

    Per that Footnote 1 of the Texas Supremes, inviting the Greens to seek similar relief, it seems pretty clear to me the Supremes’ stance is similar to 14th Appeals: the fees are constitutional, but because Hughs (and career staff before she took office) screwed the pooch on unlawful actions, the district court’s TRO in Dikeman is necessary. That’s why it invited the Greens to seek relief, per that footnote.

    So, note 4 to David: You’re invited to visit Ballot Access News (as well as, of course, my blog post).

  5. Manny says:

    David is there a reason you can’t do your own research?

  6. SG, your interpretation of that Supreme Court footnote and mine are different. I read it as “this is a thing we would have had to deal with if it had been included in this case, so we are noting it here in the event it comes up again in the future”. Neither of us are lawyers, we are both just speculating. I seem to recall that the Greens complied with the Third Court’s order to disqualify the candidates at issue in that lawsuit, and if so this would be a moot point anyway.

    Also, too, as the Republicans noted in their petition to knock the Libertarians off the ballot, there is a September 18 deadline to print the absentee ballots for military and overseas voters. If that footnote was indeed an invitation to the Greens to seek relief from them, they sure are taking their sweet time about it.

    The issue in the Nader case from 2004 had to do with the number of petition signatures required for ballot access, and the time permitted to collect them. That was an issue in this lawsuit as well, since petition signatures could be collected instead of paying the fee. In that Nader case, the court ruling was that the signature requirements and timeline were not unconstitutionally excessive. That is the point of my remark here.

    Finally, to David’s question about finance reports for Green and Libertarian candidates: I don’t research them for the same reason I don’t research the reports for all races or all candidates in races of interest, which is that it’s not worth the effort. Life is short, and there are other things for me to do.

  7. David Fagan says:

    Sorry, didn’t know it took that long, I’m sure they don’t have a lot, comparatively.

  8. brad says:

    David Fagan,

    9/11/20…Never forget.

    192,616 and counting.

    “more deadly than even your strenuous flus,”….“this is 5 percent versus 1 percent, or less than 1 percent.”

    “Just stay calm, it will go away,” Trump said on March 10. “We want to protect our shipping industry, our cruise industry, cruise ships, we want to protect our airline industry.” He added, “A lot of good things are going to happen. The consumer is ready.”