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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to pay the filing fees was in effect in Texas despite the original order from Judge Kristin Hawkins, as it had been superseded by the state’s appeal.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.

Libertarians will stay on the ballot

Sorry, Republicans. You were too late after all.

The Texas Supreme Court on Saturday rejected an attempt by Republicans to kick 44 Libertarians off the ballot in the November elections.

Several Republican Party candidates and organizations had sued to remove the Libertarians, arguing they did not pay filing fees — a new requirement for third parties under a law passed by the Legislature last year. But the Supreme Court dismissed the suit, finding that the Republicans missed the August 21 deadline to successfully boot people from the ballot.

“The available mechanism for seeking the Libertarians’ removal from the ballot for failure to pay the filing fee was a declaration of ineligibility,” the court wrote in a per curiam opinion. “But the deadline by which such a declaration can achieve the removal of candidates from the ballot has passed.”

[…]

“Although the result in this instance may be that candidates who failed to pay the required filing fee will nevertheless appear on the ballot, this Court cannot deviate from the text of the law by subjecting the Libertarian candidates’ applications to challenges not authorized by the Election Code,” the court wrote.

See here, here, and here for the background. Let me quote from the intro to the opinion, which was released on the Saturday evening of a holiday weekend, to give you the basic gist of it.

Several Republican Party candidates and organizations seek to prevent 44 Libertarian Party candidates from appearing on the 2020 general-election ballot due to the Libertarians’ failure to pay the filing fee required by section 141.041 of the Texas Election Code. The Republicans concede that the statutory deadline to have the Libertarians removed from the ballot using a declaration of ineligibility passed on August 21. See TEX. ELEC. CODE § 145.035. They claim a later deadline applies to their petition, which they describe as a challenge to the Libertarians’ ballot applications governed by the deadline in section 141.034.

For the reasons explained below, the Election Code does not authorize the requested relief. Because the Libertarian Party nominates candidates by convention rather than primary election, its candidates’ applications are governed by chapter 181 of the Election Code, not by chapter 141’s procedures for challenging ballot applications. See id. §§ 181.031–.034. The relators invoke deadlines governing challenges to “an application for a place on the ballot” under chapter 141, but Libertarian Party candidates do not file such applications. Instead, they file “an application for nomination by convention” under chapter 181, which is a statutorily separate type of application governed by a separate set of statutes. Id. The Election Code does not subject the Libertarian candidates’ applications for nomination by convention to the procedures and deadlines for ballot-application challenges on which the relators rely.

Although the result in this instance may be that candidates who failed to pay the required filing fee will nevertheless appear on the ballot, this Court cannot deviate from the text of the law by subjecting the Libertarian candidates’ applications to challenges not authorized by the Election Code. The Legislature established detailed rules for ballot access and for challenges to candidates, and courts must carefully apply these rules based on the statutory text chosen by the Legislature. The available mechanism for seeking the Libertarians’ removal from the ballot for failure to pay the filing fee was a declaration of ineligibility. However, the deadline by which such a declaration can achieve the removal of candidates from the ballot has passed. The Election Code does not permit the relators to bypass that deadline by belatedly challenging the Libertarians’ applications. The petition for writ of mandamus is denied.

In other words, the novel attempt to say they are not challenging the candidates’ eligibility, which the Republicans conceded was too late, but were challenging their applications. The Supreme Court says that the law the Republicans were citing for this challenge doesn’t apply, and as such they’re out of luck. They did say in a footnote on page three that the Green Party could have sought Supreme Court review of that Third Court of Appeals order that forced their candidates off the ballot, and that an Attorney General amicus brief that took no position on that question was filed and considered for this case. They don’t seem to be saying how such a motion for review might have been received, just that it could have been done.

The bulk of the opinion is a tour through the part of the Election Code that governs parties that nominate their candidates by convention instead of by primary election, and how the Legislature treats the two kind of nominating processes differently. I gave it only a quick scan, because life is short and it is a holiday weekend, but feel free to dive in if that’s your jam. I will say, unless the Libertarians win one of their lawsuits challenging the new statute that mandates a filing fee, which was the basis for all of this legal wrangling, both Rs and Ds will be sure to do this again in 2022, since it is clear that they can knock Libertarians and Greens who don’t pay that fee off the ballot. The Ls and Gs may not like this law, but it’s in effect until further notice, and they know what the price of not following it is. And I have to imagine that somewhere, someone inside the Republican Party is getting reamed out by someone else for not being as on the ball about this as the Democrats were. They had a path to get what they wanted, they just didn’t take it in time. From where I sit, they were caught flat-footed and were out-lawyered by the Dems. That’s gotta sting a little for them.

More on the Republican attempt to defenestrate the Libertarians

From the Statesman:

Republican candidates and organizations are asking the Texas Supreme Court to remove 41 members of the Libertarian Party from the November ballots.

All of the Libertarians are ineligible to run, the GOP argues, because they failed to pay a newly created candidate filing fee or collect the necessary petition signatures to avoid the fee. But the Libertarian Party argues that the GOP, which could have challenged the candidates in December, waited too long to seek a court remedy.

“In the midst of pandemic, with life in general taking longer and facing more complications than usual, this Court should not exacerbate the problem by ordering counties across the state to stop preparing ballots so (the GOP) can strip Texas voters of their rights to vote for their chosen candidates,” the party’s leaders told the Supreme Court in a Tuesday filing.

[…]

The Republicans argued that they “fell in the trap” of challenging the eligibility of candidates, too late as it turned out, when they should have challenged the candidate applications as improper under a different section of the state’s election laws. Removing candidates based on improper applications can take place any time before Sept. 18, when ballots are mailed to members of the military serving overseas, the Republicans told the Texas Supreme Court.

Practically, however, the party acknowledged that the Texas secretary of state’s office has been arranging to print and distribute those ballots since Aug. 28, and its petition urged the Supreme Court to act as quickly as possible.

“Should this Court issue relief, the Secretary of State can take corrective action through early September,” said the petition, filed last Wednesday.

One day later, the court gave the Libertarian Party until 10 a.m. Tuesday to file a response. In that filing, party officials urged the court to avoid a rushed decision over a filing fee that many Libertarians see as an unconstitutional poll tax — particularly with two court challenges underway.

In the first, a state lawsuit filed by current and former party candidates in Harris County led to a court order blocking the fee as unconstitutional, though the ruling was halted by an appeals court that has yet to decide the case. The second involves a federal lawsuit by the party and several of its candidates that is set for trial next year.

“There are two constitutional challenges pending,” the Libertarians said. “In this context without the benefit of a more developed record, it would be difficult to say that ineligibility is conclusively established.”

See here for the background. My not-a-lawyer self thought the Republicans’ second attempt to knock off the Libertarians had some merit – certainly more than the clumsy and too late initial attempt had – but I also think the Libertarians make a good point in their response. The successful Democratic attempt to boot the Greens was based on well-established state law, and the facts were incontrovertible. The Republican challenge is novel, and the Libertarians are correct that the facts are still in dispute in this case. The ongoing federal litigation may sway the court as well, though that same appeal did not work for the Greens. We should get a ruling quickly, that much I feel confident saying.

Republicans go to Supreme Court to remove Libertarian candidates

If at first you don’t succeed, make up a new statutory deadline that you claim is the real date that matters.

About a week after Texas Democrats took several Green Party candidates to court and had them knocked off the ballot for failing to pay candidate filing fees, state and national Republicans are taking a similar case to the state’s highest civil court.

The Third Court of Appeals ruled against three Green Party candidates, but in the case of the Libertarians, the court dismissed the case as moot, saying it was no longer timely because the Aug. 21 deadline to declare a candidate ineligible had passed. The Republicans’ petition was filed Aug. 21.

This latest lawsuit filed by the Republicans names 40 Libertarian candidates, including two candidates for Texas Supreme Court, three for Texas Senate, 10 for Texas House and 25 for Congress.

The high court doesn’t have much time to take action: Friday was the deadline for the Secretary of State to certify candidates for the ballot.

“It’s a last-ditch effort on their part,” said Libertarian Party of Texas Chair Whitney Bilyeu. “They’re clearly desperate to do everything they can to remove voter choice at the polls to continue to have a one-party state here in Texas.”

The Libertarians say their candidates chose not to pay the fee for various reasons: some were taking a personal stand against a law they believe to be unconstitutional, some filed with the Secretary of State during a window of time when a judge had temporarily blocked the law, and others simply did not have the funds.

The filing fees in Texas are $3,125 for the U.S. House, $1,250 for Texas Senate and $750 for Texas House. Fifty-three of 70 Libertarian candidates paid theirs, state data shows.

Lawyers for the Republicans wrote that “timing is of the utmost importance” because “each day closer to September 19 — the date ballots are mailed — makes relief less practical.”

[…]

At the Texas Supreme Court, the Texas House Republican Caucus PAC and National Republican Congressional Committee, as well as 27 of their candidates and the GOP parties in Harris, Travis and Tarrant counties, are arguing that while the deadline to challenge eligibility may have passed, the deadline to challenge a candidates’ application is Sept. 18, the day before any mail-in ballots are sent out.

See here for the background. Patrick Svitek has a copy of the writ of mandamus, and honestly the “Relief Requested” section of the document, starting on page 18, explains why this is different in a fairly clear manner:

When a candidate fails to submit the required filing fee, there is confusion whether the appropriate challenge is to the application, under Chapter 141 or the eligibility under Chapter 145. The statute is less than crystal clear on this point, providing that “To be eligible to be placed on the ballot for the general election . . . a candidate must” pay a filing fee or submit a petition in lieu of a filing fee. TEX. ELEC. CODE § 141.041(a) (emph. added). At the same time, Chapter 141 provides that a challenge under this section, to provide the application, is not “a determination of a candidate’s eligibility.” TEX. ELEC. CODE § 141.034(b).

Adding to the confusion, courts and parties have intermingled these two challenges. See In re Davis. No. 03-20-00414-CV, 2020 Tex. App. Lexis 6663 (Tex. App.—Austin, Aug. 19, 2020, orig. proceeding) (granting mandamus relief challenging a minor candidate’s eligibility under Chapter 145 based on a candidate’s failure to pay the required filing fee).

Candidly, in the tight window to seek mandamus relief, many of the Relators fell in the same trap last week when they challenged certain Libertarian candidates eligibility under Chapter 145. The Third Court of Appeals denied that relief, finding it untimely.

But, as an analysis of the statutory scheme and case law bear out, a challenge to a candidate’s failure to submit the application with the required filing fee is a challenge arising under Chapter 141.

This distinction is important because challenges to application— versus eligibility—have different timing requirements. The Third Court of Appeals concluded that a challenge to eligibility must be completed by the 74th day preceding the election. On the other hand, a party can challenge a candidate’s application, including the failure to pay the filing fee “the day before any ballot to be voted early by mail is mailed . . .” TEX. ELEC. CODE § 141.032. That date is September 18.

Relators institute this new original proceeding under Texas Election Code Section 273.061, challenging the candidates’ ability to appear on the general election ballot for failure to submit the required filing fee under Chapter 141. As this is a new action, requesting new relief, this is an appropriate original jurisdiction proceeding before this Court. In this action, Relators ask the Court to compel the Libertarian Party of Texas and its Chair to comply with their statutory duty to reject these applications and to notify the Secretary of State of the rejection. If the Secretary of State is made aware of the rejection, it can take appropriate corrective action.

There is no question of timeliness in this challenge, as it can occur at any time prior to September 18. Practically, though, after August 28, the Secretary of State will begin to make arrangements to print and distribute ballots. Thus, timing is of the utmost importance. Should this Court issue relief, the Secretary of State can take corrective action through early September. However, each day closer to September 19—the date ballots are mailed—makes relief less practical.

Basically, what this claims is that the challenge that the Third Court rejected was made under the wrong law, given the timing. This challenge is made under a different law, where the timing is not an issue, at least not yet. Will it fly? I have no idea, but points for effort.

Two other items of interest here. One is that the long list of relators (again, that’s what you call a plaintiff in a case like this) here includes multiple Republican candidates, presumably all of whom have a Libertarian opponent. You may recall from the previous challenge that the absence of Republican candidates in affected races raised the question of standing. The Third Court did not address that issue because they ruled that the motion was moot, but the Supreme Court would surely have to address it in any race where the candidate was not among the relators. Two, the story says that 53 of 70 Libertarian candidates did in fact pay the filing fee, but the Republicans named 40 of them in this writ and claimed none of them paid the fee. Both of these facts can’t be true, so we’ll see what the court says. My guess is we’ll get an answer in short order.