NRCC

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.

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.

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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.