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All-Republican Court to TX GOP: Sorry, Too Late

7/9/2020

 
From Alejandro Serrano in the Houston Chronicle (paywall) Saturday, with an update Sunday:
The state’s high court Saturday rejected an effort by state and national Republicans to remove 44 Libertarian Party candidates from the ballot for failing to pay candidate filing fees.

The Texas Supreme Court said in a 12-page opinion that it could not grant the declaration of ineligibility sought by Republicans because the particular statute they invoked regarding the applications of the Libertarian candidates did not apply to them because the Libertarian Party nominates candidates through a convention.

“We’re pleased the court did the right thing,” Whitney Bilyeu, chair of Libertarian Party of Texas, said of the ruling.

The court said the ruling did not mean the filing fee requirement was “unenforceable.” Had the Republicans filed a petition of ineligibility by the Aug. 21 deadline, “the challenged candidates could potentially have been removed from the ballot,” according to the opinion.

[...]

Bilyeu said the real fight is taking place in federal court, where the party is challenging the candidate filing fee as unconstitutional, and in state court, where a separate challenge by Libertarian candidates is pending at the [Texas] 14th Court of Appeals.
This particular article repeats the old canard that Libertarians steal votes from Republican candidates and Greens from Democratic candidates—or are "generally seen" as doing so. It is "generally seen" in the journalistic community that one cannot write an article involving either party without a paragraph about siphoning votes from the big parties. The article does not mention, as a previous piece in the Chronicle did, that the GOP did not try to knock Libertarians who face no Republican opposition off the ballot.

As GPTX Co-Chair Laura Palmer said in her plea to the SOS Office, enforce the statute equally or not at all; since we consider the filing fee provision unconstitutional, we would prefer not at all.

What the Court Said
Here is the Supreme Court's 12-page decision in its entirety. As the heading reveals, it wasn't even the Texas GOP as a whole that request the writ of mandamus; it was the Texas House Republican Caucus PAC. Below is the key paragraph from that decision (emphasis mine):
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 ElectionCode. 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.
The decision was 7-0, with two justices not participating. As evidenced by the several appearances of "we agree with the relators that" and similar phrases, the Court's only rationale for denying the writ of mandamus was that it was filed too late to provide a remedy. 

Advice on Campaign Strategy
This blogger, who last year applied to run for US Senate without the accompanying $5,000 filing fee or 5,000 petition signatures, does not recommend the same practice for any Green, Libertarian, or People's Party member intending to run for public office in 2022. As of now, prospective candidates should be aware that, should they choose to run without the fee, the Secretary of State's Office will not deny their applications unless and until a declaration of ineligibility is submitted.

(BTW, what will the shorthand demonym for a People's Party member be? They can't really use "Populist" because that word has developed some negative connotations. "Peoplist" perhaps?)

The circumstances in the previous paragraph may change following the 2021 legislative session. I'm fully expecting a sequel to HB 2504 and additional ballot-access entertainment from the Lege.

Be advised also that the above circumstances pertain only to statewide offices and offices with districts in more than one county. If the office one seeks has a jurisdiction entirely within one county, then the County Clerk or equivalent authority determines whether an application is valid sans fee or petition signatures.
SocraticGadfly
8/9/2020 10:46:07

Per my Tweets, you and the others COULD (not guaranteed) get similar relief, per Footnote 1.

At the same time, per the last paragraph of the body, when the Dikeman suit reaches the Texas Supremes on appeal, you, and Libertarians who filed it, could both be stiffed.

And, of course, the federal suit isn't being heard until next year.

SocraticGadfly
9/9/2020 22:23:10

THIS:

The Court ORDERS that Defendant Hughs is temporarily enjoined from refusing to certifythird-party nominees for the general-election ballot on the grounds that the nominee didnot pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=be47dd18-21a4-40d7-a8fa-e60b3c6da39b&coa=coa14&DT=Opinion&MediaID=397f5de2-3317-4e58-b7a0-b4377264d797

So, courtesy of Dikeman et al, getcher ass back on that ballot!

dbc
10/9/2020 10:55:47

Gadfly, the excerpt you quote above is from the injunction rendered 2 December 2019. It was during the brief period of the injunction that I filed to run. I have yet to find in Tuesday's opinion a reference to the fact that the injunction was lifted a few days later, subsequent to the SOS's appeal. But then, I'm still reading through it.

As I understand it, following the GPTX Convention in April, SOS was operating as if everything was cool & we'd be on the ballot primarily because the legal issues had not yet been resolved via Dikeman et al v. Hughs pending in the federal court system.

SocraticGadfly
12/9/2020 23:23:08

I should have read a bit more carefully, but that's from the 14th Appeals quoting the district court. It said the TRO was upheld, but removed the "at any time," which was in bold in the original.

So, add that to footnote 1 from last week's Texas Supremes ruling, and I still say that IF you all appeal, you should be good FOR THIS YEAR. The Texas Supremes have indicated they find the fees constitutional, but, just as the 14th Appeals thinks Hughs screwed the pooch, in addition to the Supremes thinking the Texas GOP was too late, the Texas Supremes also gave hints they think Hughs screwed the pooch.

So, no, especially as I read both decisions of this past week together, I think you, Kat and Tom should get on the ballot IF you file the appeals from the Travis court.

But, beyond this year? Not a chance, unless the plaintiffs win the federal case.

I admit I could be misreading, but ... until I am convinced I am, I think you all can get back on the ballot with appeal.

dbc
13/9/2020 08:16:17

The process is underway. More than that, I cannot say.

dbc
10/9/2020 11:07:21

Focus on II.C.1.c.i., beginning on page 15. Excerpt ([...] indicates where the court referred to relevant provisions in the Texas Election Code):

To further support their contention that section 141.041 is discriminatory, Appellees point out that while the fees paid by major-party candidates are paid to the parties’ state or county chairs, the fees from minor-party candidates are paid to the Secretary of State or the county judge and are credited to either the state or county general fund. [...] Furthermore, signature petitions from major-party candidates are filed with the parties’ state or county chairs, who decide whether the petitions are sufficient [...] In contrast, signature petitions from minor-party candidates are submitted to the Secretary of State or the county judge. [...]

These differences do not alter our conclusion. Although the implementation of the filing fee/signature petition requirements differs between major and minor parties, these differences do not disproportionately increase the burden on a minor-party nominee’s compliance. The thrust of the requirement remains the same: either pay a filing fee or submit a signature petition for placement on the general-election ballot. [...] This requirement does not constitute a severe restriction.


Comments are closed.

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