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

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.