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Kat Swift

The Green Party owes Ken Paxton a thank-you note

He did them a solid, that’s for sure.

Turns out it is easy being Green

In the legal fight to exclude minor party candidates from the November ballot, Republican Attorney General Ken Paxton took a flexible view of time and deadlines.

After the Texas GOP filed suit Aug. 21 to remove 44 Libertarians from the ballot for failure to pay a required candidate filing fee, Paxton told the Texas Supreme Court that there was plenty of time to pursue the challenge.

This week, however, Paxton told the same court that a Democratic bid to oust three Green Party candidates — filed four days before the unsuccessful GOP challenge — was begun much too late and needed to be overturned.

“The (Democrats’) dilatory conduct and unjustified delay in seeking relief imposed an undue burden on the Green Party officials,” Paxton told the court in a brief filed Monday.

[…]

[F]acing an Aug. 21 deadline to declare candidates ineligible, Democrats sued Aug. 17 to strike three Greens running for U.S. Senate, U.S. House and Railroad Commission.

The Austin-based 3rd Court of Appeals gave the Greens less than 48 hours to respond, then issued an Aug. 19 order declaring the three Green Party candidates ineligible for failure to pay the filing fee. The 2-1 ruling had two Democrats in the majority and one Republican dissenting.

The ruling drew the notice of Republican Party leaders, who quickly demanded that Libertarian leaders drop a long list of candidates for the same reason.

When those demands were rejected, Republican organizations and candidates asked the 3rd Court of Appeals to follow the precedent set in the Democratic challenge and order the Libertarians removed from the ballot.

But the GOP filed its challenge on Aug. 21, the deadline to declare candidates ineligible, and the appeals court tossed it out, ruling that there wasn’t time to hear from all parties and gather the necessary information before the deadline expired.

The GOP turned to the Texas Supreme Court, arguing that instead of challenging candidate eligibility under an expired deadline, it was challenging the Libertarians’ candidate applications as improper — giving them until Sept. 18 to seek court intervention.

Paxton, in a letter brief to the Supreme Court, agreed with the GOP interpretation of state election law.

“Under Texas law, there is still time for this Court to compel compliance,” Paxton told the court on Sept. 4.

The all-Republican Supreme Court disagreed, ruling Sept. 5 that the GOP and Paxton were looking at the wrong section of the Election Code on deadlines. The court concluded that the Libertarians could not be removed from the ballot because the GOP challenge was filed too late.

[…]

Then on Friday, the Green Party asked the Supreme Court to reinstate its three candidates, arguing that like the GOP, the Democrats relied on the wrong part of the Election Code, rendering their challenge void as well.

The court asked Paxton’s office for its opinion.

In Monday’s response, filed 10 days after arguing that the GOP had not acted too late in challenging Libertarian opponents, Paxton urged the court to reinstate the Green candidates because the Democrats waited too long to act and because the 3rd Court of Appeals engaged in a rushed process that didn’t give the Greens, other political parties and other candidates time to weigh in.

“The 3rd Court abused its discretion,” Paxton wrote.

The Supreme Court’s one-paragraph order to reinstate the Green candidates did not explain the court’s rationale.

See here for the background. We expect SCOTX to publish its opinion on this ruling today, so we may get some idea if it’s all a bunch of sophistry or if they can make a principled argument that the Greens were deprived of their right to respond to the Dems’ legal action in a timely manner, which was a part of the ruling against the GOP in the Libertarian purge attempt. That Ken Paxton was willing to be morally and conveniently flexible on the subject should come as no surprise, given everything we know about him and his character. The Republican Party of Texas has a longstanding willingness to help the Greens whenever they think it might benefit them. This time that support came from an elected official instead of a deep-pocketed donor. Whatever works.

There was a debate in the comments of the last post about ranked choice voting (RCV) being a solution to this kind of legal gamesmanship. The theory is that since the people who voted Green or Libertarian (or independent, or whatever else may have been on the ballot) would still be able to express their electoral support for whichever major party candidate they like as their backup selection, which in turn would reduce the incentive for the major parties to bump them off the ballot. The logic has merit, though the lack of RCV around the country means there’s no data to test that hypothesis.

In this case, the argument that had been made by both the Ds and the Rs is that the other parties’ candidates had violated the law by not paying the newly-mandated filing fees – you may note, the Dems did not challenge the three Greens who did pay their filing fees, just the three candidates who had not – and there is a long history of candidates being challenged because they failed to meet eligibility requirements. If the filing fee law continues to survive the lawsuits against it, and there are Greens and Libertarians who refuse to comply with it in 2022, I would fully expect them to be taken to court again, surely in a more expeditious fashion, and I would expect that even in an RCV-enabled world. This is a basic tool in the political toolbox, one that I would not expect to go away if the method of determining the winner of an election changes. That too is a testable question, and perhaps one day we’ll have an answer for it. For now, that’s how I see it.

SCOTX puts Greens back on the ballot

That sound you hear is my head spinning.

The Texas Supreme Court has ordered three Green Party candidates to be restored to the November ballot after Democrats successfully sued to remove them.

Last month, a state appeals court sided with the Democrats, who were seeking to kick the candidates off the ballot because they had not paid filing fees. The three candidates are David Collins for U.S. Senate, Katija “Kat” Gruene for Railroad Commission and Tom Wakely for the 21st Congressional District.

The Texas Green Party appealed the decision to the state Supreme Court, which ruled Tuesday that the secretary of state “shall immediately take all necessary actions to ensure these candidates appear on the” November ballot. The Supreme Court did not give its rationale, but said a full opinion was forthcoming.

It is the latest development in a spate of legal battles over third parties on the November ballot. At issue is a new requirement that third parties pay filing fees like Democrats and Republicans do. The law, passed last year by the Legislature, is the subject of multiple legal challenges, and many third-party candidates had not paid filing fees amid the pending litigation.

A state appeals court upheld the 2019 law last week.

While the Democrats were initially successful in booting the three Green Party candidates off the ballot, Republicans more recently failed in their bid to remove 44 Libertarians from the ticket for a similar reason. In rejecting the GOP effort earlier this month, the Supreme Court said the party waited too long to raise the issue.

[…]

It is crunch time for finalizing ballots across the state, with a Saturday deadline for counties to mail overseas and military ballots. The state’s most populous county, Harris County, wrote to the Supreme Court on Monday saying that “it is too late to make changes,” even if the court acted that day.

In an email sent to county election officials shortly after the Supreme Court’s ruling, the Texas secretary of state indicated that counties that had already sent out mail ballots would need to send a corrected version “as soon as possible.”

“The Supreme Court’s ruling and ballot change will not be an acceptable excuse for missing the [Sept. 19] deadline,” wrote Keith Ingram, the state’s director of elections. “That deadline must still be met.”

State law requires corrected ballots to include both a written notice explaining the change and instructions to destroy “defective” ballots that have not yet been returned to a county. A defective ballot returned to the county will be counted if a corrected ballot is not returned in time.

See here and here for the background on the Dems’ effort to boot those three Green candidates, and see here and here for more on the Republicans’ failed effort to boot the Libertarians. A fourth Green candidate had withdrawn from the ballot before all this started because he had voted in the Democratic primary this year.

My first reaction on seeing this news was that it was awfully late in the game for further changes to the ballot. Looking at the case filings, the writ was filed by the Greens on September 11, the Dems had till the 14th to respond, and the ruling came down on the 15th. I’ll have an opinion on the ruling when it is available, but until then all I can do is shrug. It is what it is. You can read this Twitter thread, which began with the original rulings in the two cases, for some more context. The Chron has more.

Further thoughts on the Dems defenestrating the Green candidates

But first, the Chron story about yesterday’s legal action.

An appellate court on Wednesday blocked three Green Party candidates from the November ballot because they failed to pay candidate filing fees.

The candidates are David Collins, who was running for Senate; Tom Wakely, who was running for the 21st Congressional District, and Katija “Kat” Gruene, who was running for the Railroad Commission. The legal challenge was filed by their Democratic opponents: MJ Hegar, Wendy Davis and Chrysta Castañeda, respectively.

Two members of a three-judge panel of the court sided with the Democrats late Wednesday.

In their majority opinion, Justice Thomas Baker wrote that Wakely, Gruene and Collins are ineligible to appear on the ballot and compelled the Green Party to “take all steps within their authority” to ensure they don’t appear on the ballot. Due to the time sensitivity, Baker said the court would not entertain motions for a rehearing.

Chief Justice Jeff Rose dissented, saying providing no other explanation than that relief was “not appropriate based on the record before us.”

[…]

Davis’ campaign declined to comment. Hegar’s campaign did not respond to a request for comment. Randy Howry, Hegar’s lawyer in the Travis County case, referred questions about the impetus for the suit to attorney Alexi Velez, who was not available for comment.

Castañeda said the suit was a matter of fairness and that the timing was “based on the fact that the Green Party tactics only recently came to light.”

“I and my fellow candidates worked very hard to get on the ballot, and the statute is clear for all of us,” she said, adding that if the candidates didn’t want to or couldn’t pay the fee, they “could have acquired the signatures to petition to be on the ballot but chose not to do so.”

[…]

Wakely said it was clear to him that the last-minute pile-on of lawsuits was a coordinated strategy to eliminate competition. He added that it was curious that Libertarian candidates, including the one in his 21st District race, Arthur DiBianca, who also did not pay fees, were facing similar scrutiny.

Gruene added that the last-minute nature of the case also seems to be part of the Democrats’ strategy, as it leaves the Green candidates without many options for relief.

Charles Waterbury, a lawyer for the Green Party candidates, agreed that the timing seemed like a tactic and said Democrats should have raised the issue sooner.

“The Democrats waited so long for what I would argue is kind of an artificial emergency,” Waterbury said. “If this is such a huge deal, if keeping the juggernaut that is the Green Party off the ballot is so important, this is something they should have filed way before. … They know the difficulty faced by a party like the Greens is basically insurmountable.”

Gruene said she views the suit against her in the same way as Wakely.

“It’s a way to siderail a campaign to shift into dealing with legal matters instead of campaigning,” Gruene said. “The Democratic Party has always seen the Green Party as their opposition, and they, from 2001 until today, have used lawsuits as a way to bankrupt candidates, bankrupt parties and prevent voters from having the choice of voting for Green Party candidates.”

See here and here for the background. Let me begin by saying that yes indeed, the Democratic Party and the Green Party are opponents, by definition. Only one candidate in a race can get elected, so by definition every candidate in a given race is an opponent to the others. I have no patience at all for the whining of these candidates about how mean the Democrats are being to them because I am old enough to remember the 2010 election, in which deep-pocketed Republican backers paid hundreds of thousands of dollars to help Green candidates get on that year’s ballot, an act of charity that the Green Party was only too happy to accept. Those Republicans did that with the intent of making it just a bit harder for Bill White to beat Rick Perry in the Governor’s race. It turned out they needn’t have bothered, but that wasn’t the point. So please spare me the hand-wringing, and pay the filing fee or collect the petition signatures as long as that is required by law, or face the consequences of your actions.

Along those same lines, I respectfully disagree with RG Ratcliffe:

I have never voted for the Green Party and never will, but it is really chickenshit of Texas Democrats to complain about voter suppression and then try to suppress the choices of voters who want to cast ballots for candidates of a party with ballot access over a filing fee the party candidates did not have to pay until this year. And this is about more than a few candidates, this is about denying the Greens ballot access in the future.

I don’t agree that challenging candidates who did not follow the law as written – and please note, a couple of the Green candidates did pay the filing fee, so it’s not that they all shared this principle or all lacked the ability to pay – is in the same universe as passing discriminatory voter ID laws, refusing to expand vote by mail in a pandemic, aggressively pursuing felony prosecutions against people who made honest mistakes (two words: Crystal Mason), but I’ll allow that filing these motions to oust the Greens is not exactly high-minded. To respond to that, let me bring in Evan Mintz:

Here’s an important lesson: Hypocrisy in politics isn’t a bug. It’s a feature. There is no grand umpire or arbiter who punishes elected officials for inconsistency (besides the voters, and they usually don’t mind). Politics isn’t about truth; it’s about power. If past positions get in the way, change them.

I’d say that’s a lesson they don’t teach you in school, but actually they do. Rice University graduate student Matt Lamb told me it’s the first thing he teaches students in his Introduction to American Politics class: “Politics is about power.”

It’s the power to implement an agenda, impose one’s own morality on others, or distribute resources. It’s the reason people try to get elected in the first place.

Texas Democrats must’ve missed that class, because for the past 30 years or so they’ve acted as if noble intentions alone are enough to merit statewide office. Uphold the process. Act professionally. Do the right thing. Party Chairman Gilberto Hinojosa said essentially that in a May conference call with journalists in response to the governor’s plan on ending COVID lockdowns. “The Democratic Party is not looking at the response through a political lens,” he said. “We’re looking at what is good for the public. If that costs us votes, so be it.”

There’s a slight flaw in Hinojosa’s plan: You can’t pursue the public good if you don’t get the public vote.

I’d say it’s clearly the case that the Democrats took legal action to remove these Green Party candidates from the ballot for the same reason why the Republicans paid money in 2010 to help put them on the ballot: They want to increase the chances that their candidates can win these elections. Obviously, there are limitations to this. One need only look at the utter degradation of the Republican Party and the principles it once held on subjects like free trade and personal morality under Donald Trump, where the only principle they now have is winning at all costs for the sake of holding onto power, to understand this. I’d like the Democratic candidates I support to hold principles that I support as well. But you also have to try your best to win elections, because as I’ve said way too many times over the past decade-plus, nothing will change in this state until the Dems start winning more elections. If that means I have to live with the knowledge that we booted some Green Party candidates off the ballot for the purpose of maybe upping our odds some small amount, I’ll do that. If you want to judge me for that, you are free to do so. I can live with that, too.

Greens temporarily make the ballot

The Texas Secretary of State has certified the petition signatures to allow the Green Party on the ballot this fall.

On Wednesday, the secretary of state’s office announced that the party had presented sufficient signatures to field candidates in the fall. The party hasn’t fielded a statewide slate since 2002.

Buck Wood, an Austin lawyer and expert in election law, said the Green Party could have problems if it lists Take Initiative America as the donor instead of the actual source of the funding.

He says Texas law requires more transparency in reporting political money. He said if Take Initiative America is a corporation, it is forbidden from making a donation. If the company is not a corporation, there are other reporting requirements aimed at better disclosing the original donor, he said.

[Kat Swift, state coordinator for the Green Party in Texas] said if the party gets written confirmation that it can legally list Take Initiative America as the in-kind donor, it intends to move forward and field candidates in the fall campaign. She said the group has until June 30 to make the decision.

The TDP has now filed suit to force the disclosure of the donor or donors’ identity.

The motion for a restraining order was filed this morning in district court in Austin. If granted, it would allow lawyers for the Democratic Party to take depositions of participants under oath to find out who bankrolled the effort.

And just like that, a temporary restraining order is granted.

[The TRO] will prevent the Green Party from certifying any candidates for the November ballot for the next 14 days. The big question is whether the Green Party’s use of out-of-state money to gather the more then 92,000 signatures they submitted to get on the ballot (well above the 44,000 necessary) violates state law.

[…]

Regarding today’s decision, TDP General Counsel Chad Dunn said, “The public should view this as a victory for fair elections.” Ultimately, he said, his goal is to expose a “conspiracy between Dave Carney and Tim Mooney,” the former being a prominent advisor to Republican Gov. Rick Perry.

The issue will be revisited at a hearing set for 9 a.m. on June 24. In the meantime, Dunn says he will be in the discovery process getting to the bottom of what he referred to as “this Republican Rick Perry conspiracy.”

If you’re wondering what Dave Carney has to do with this, let the Lone Star Project enlighten you.

Documents obtained by the Lone Star Project reveal that Rick Perry’s top political advisor Dave Carney has a long and direct link to the manager of the Texas Green Party/GOP ballot scam. In 2004, Carney teamed-up with Texas ballot scam leader Tim Mooney to gather signatures to put Ralph Nader on the ballot in order to assist the George W. Bush Presidential campaign.

In 2004, Carney worked with a group called “Choices for America, LLC” which was “run” by Mooney – the same Republican operative who collected signatures for the Green Party of Texas in 2010. (Dallas Morning News, August 12, 2004) Both Choices for America, LLC, the shell group used in 2004, and Take Initiative America, LLC the shell group used in 2010, are registered to Charles Hurth III. (Missouri SOS)

According to the Dallas Morning News, “Perry campaign spokesman Mark Miner said the governor’s campaign had nothing to do with the petition-gathering effort.” It now appears that statement is likely not true.

Now you know why these guys like to operate in secret. I agree with what the DMN says.

The bottom line on Texas campaign-finance law is that corporations, either for-profit or nonprofit, can’t legally contribute to candidates or to parties, except to cover party administrative expenses. Yet the Green Party says it intends to report the nonprofit Take Initiative America as the source of an in-kind contribution.

The legality of the money behind the Green petitions needs to be tested in court. The secretary of state’s office will validate signatures but does not administer campaign-finance laws. Campaign finance is the purview of the Texas Ethics Commission, which typically investigates complaints and levies fines.

Other scenarios that would root out the facts involve a civil action by Democrats or an investigation by the Travis County district attorney. Either way, the integrity of the finance laws must be ensured.

The reason why the money came from the non-profit Take Initiative America to the Green Party is because Take Initiative America doesn’t have to disclose who its donors are. For all we know, it’s one wealthy person who wrote the check that covered the cost of getting the petition signatures. The fact that this can be done in secret is the problem. We have a right to know who is attempting to influence our elections. BOR has more.

Who helped the Greens get on the ballot?

According to Wayne Slater, it was “an out-of-state Republican consultant with a history of helping conservative causes and GOP candidates.”

Green Party officials said an outside group gathered the 92,000 signatures and gave them as “a gift” to the party, which delivered them to the secretary of state, who oversees Texas elections. If the secretary of state determines that enough of them are valid, the party will be able to field a slate of candidates for statewide offices for the first time since 2002.

[…]

Christina Tobin, who heads a Chicago-based petition-gathering company called Free and Equal Inc., said she was approached by [Arizona Republican operative Tim] Mooney to collect signatures for the Green Party of Texas.

Another group, Take Initiative America, based in Missouri, would provide payment, Mooney said.

Mooney estimated the cost at $200,000, but declined to give a specific figure or say who put up the money.

“Take Initiative America, being a nonprofit, doesn’t disclose its donors, nor is it required to,” said Mooney, who has little history of working in Texas. “Take Initiative America is a nonpartisan organization. They’d like to see everybody have a chance to get on the ballot – the more choices the better.”

[…]

Kat Swift, state coordinator for the Texas Green Party, said restrictions in Texas – including a short period for petition-gathering and a requirement that signers be registered voters who did not participate in the primary – are tough for third parties to overcome.

“If it hadn’t been for that donation, we wouldn’t have been on the ballot,” she said.

In an online solicitation to supporters, the Green Party offered petition-gatherers $4 per signature, thanks to what the party on its Facebook page called “last minute fairy tale funding.” At that rate, the effort would have cost between $200,000 and $350,000.

She said the Green Party will report the signatures as an in-kind contribution on its next campaign finance report. Take Initiative America will appear as the donor. No law requires the group to disclose its contributors.

Swift said she has no concern that the funding to get her party on the ballot might have come from Republicans who don’t share the party’s liberal philosophy on issues.

“Wherever the money came from doesn’t bother me,” she said. “If it came from Democrats, which I doubt, or if it came from Republicans – whoever made this donation supports an open ballot, open democracy. And that’s the whole point. People are trying to open the ballot to increase democracy and so, who cares how they vote?”

I have a hard time believing Kat Swift is that naive, but whatever. This is far from the first time that Republicans have done this sort of thing – it happened all over the place in 2004, with Ralph Nader – and it’s far from the last. What really bugs me is the anonymous nature of it all. I’ve seen so many cases of big bucks Republican and conservative donors contributing anonymously, or demanding the right to contribute anonymously, to affect the outcome of an election. I have no idea what they’re so afraid of, or why they’re so ashamed to sign their names to their work, but it’s all very typical. Good for the Greens, I guess, but forgive me for not viewing this as some great victory for democracy. BOR, PDiddie, and Harvey Kronberg have more.