On January 6, the Texas Secretary of State filed this brief in Dikeman v Hughs, 14-19-00969-CV. This is the case in which the Libertarian Party challenges the 2019 law that requires candidates seeking a Libertarian Party convention nomination to pay a filing fee. Thanks to Jim Riley for this news.
Ballot Access News
Edited By Richard Winger
This whole filing is a LIE, as I know Jim knows.
The bill, in the first paragraph of new material, says “nominated.” Throughout, it talks about “nominees,” not “candidates.”
I mean, is Ruth Hughs stupider, or more intransigent, than Kenny Boy Paxton even?
It was Paxton and/or his team listed on the front page that wrote it.
Aside from the obvious misreading SocraticGadfly points out, the part about “modicum of support” is illogical. The fee doesn’t prove any level of support, the state’s response is that you could – completed optionally – submit a petition instead of the fee. Huh? How can opting not to submit a petition demonstrate support?
@eeyn,
The only citizen to testify in favor of HB 2504 in the House Elections committee hearing was Kathaleen Wall who spent $6.3 million in a losing effort to be nominated for US Representative (finishing 3rd in the 2018 primary). The author of the bill, Drew Springer, suggested that candidates should have “skin in the game”. Compared to that amount, a ordinary candidate would have to have a full set of body organs in the game.
Wall spent about $500 per scalp … er … vote she received in the primary.
In the Senate State Affairs committee hearing Pat Dixon suggested that a candidate could receive a contribution paying the filing fee from a major party contributor who wanted to peel support from the other major party. The Green Party witness gave a fist pump suggesting that would be true.
Under Hugh’s implementation of TEC 141.041, a petition signer forfeits the right to vote for any office in a primary. A contributor could be a major party supporter who votes in the Republican or Democratic primary.
IS THE ROT IN TEXAS EVEN WORSE THAN IN RED DONKEY COMMUNIST CA OR NY ???
1836 FOLKS AT THE ALAMO AND GOLIAD DIED FOR NOTHING ???
2020 TEXAS MONARCH/OLIGARCHS EVEN WORSE THAN 1836 MEXICO MONARCH/OLIGARCHS ???
That is one poorly done brief. They are trying to argue the court action for injunctive relief is invalid because of sovereign immunity…what??? That makes no sense in this context. I suspect even judges inclined to agree with their ultimate point will find some of this nonsense too much to overlook.
eeyn, I scrolled right past Kenny Boy’s own name.
Jim, that’s another lie. You couldn’t vote in a primary to sign a petition to get a third party ballot access (as I personally know), but that’s totally different from individuals going the signature route rather than paying filing fees.
Dikeman et al’s lawyers should ask Hughs and Paxton to personally swear in court to the claim that HB 2504 refers to candidates not nominees. See if they would perjure themselves. Call Springer in as necessary. (He’s unopposed in his primary, so he’s got time on his hands.)
The plaintiffs are not challenging the amendment to TEC 181.005. The two sections of HB 2504 are severable. Further, the Libertarian Party qualifies on the basis TEC 181.005(b), which HB 2504 did not change. In addition, the Libertarian Party may qualify on the basis of attendance at their March precinct conventions. All this rambling about TEC 181.005 is wasting the court’s time, and sanctions should be considered.
The statement on Page 6 that TEC 181.005(c) previously provided for a 5% threshold is false. TEC 181.005(b) provides for a 5% threshold and was not modified by HB 2504. TEC 181.005(c) which was added, does not apply to the Libertarian Party.
The assertion at the top of Page 7 is FALSE. TEC 172.021(a) says that a candidate seeking a place on the primary election ballot. TEC 172.021(b) says that the application must be accompanied by a filing or in lieu of petition. TEC 172.021 could as easily have said that a candidate must pay a fee, accompanied by an application.
The comparable section for convention-nominating parties is TEC 181.031. If the legislature wanted to impose a fee on applicants, it would go right here. Instead, TEC Chapter 181 proceeds with the convention nominating process, concluding with certification of nominees in TEC 181.068.
Candidates do not become nominees until they are nominated. TEC 141.041 would impose a filing fee on “a candidate who is nominated by convention”. Not even Bill Clinton would use such a strained interpretation of “is”.
Sanctions was the other thought in my mind, Jim.
Basically, what we’ve got is “barratry.”
And, otherwise right on what is changed, and not changed, by 2504.
Sidebar: You’re in Texas, too, and obviously also been here a while. With Paxton, how much of this is lying and how much of it is him really being that stupid?
JR for Texas Supreme Court – by whatever name.
TX election law written by gerrymander hacks at 4 AM while totally drunk ???
@SG,
I assume you have read Election Advisory 2019-13. If not, on the SOS website
select Elections,
select Forms, Resources and Legal Library
select Elections Division Advisories
select 2019-3
It is not really a “rule”.
SOS David Whitley quit quite precipitously at the end of the legislative session, just when the SOS would be having to begin implementing all the new election laws. This left the SOS office without direction. Nobody ever saw John or Jane Doe. I suspect that he/she did not really exist.
The federal lawsuit was supposedly in the works for some great while. 141.041 was added as an afterthought. The SOS might have been reminded of the measure. Someone probably recalled that the Democrats were quite upset about 181.005 and conflated the two independent sections of HB 2504.
Discovery is going on in state district court to find out about the rule making procedure used. The AG is trying to quash that effort. But Paxson is just acting as the attorney for a state agency. I doubt that he was behind the misinterpretation.
It is quite possible that it was a careless reading of the statute. If you are told some text says something, you may overlook what it actually says.
When HB 2504 was reported by the House Elections Committee, the chair Stephanie Klick said it was about general election candidates. The caption at that time stated that it was “to appear on the ballot for the general election”. The senate sponsor, Brian Hughes, said that the purpose was for slating candidates for the general election. The fiscal note for HB 2504 was apparently based on convention-nominated candidates appearing on general election ballots. The Legislative Budget Board and the SOS understood it as applying to general election candidates. Certification of nominees for county and precinct offices does not go through the SOS at all, which would explain why no estimate could be made of county revenues. That would require contacting all 254 counties.
Drew Springer said that independent candidates pay a filing fee. They do not. There are several
posibilities.
(1) He lied.
(2) He is a dolt.
(3) He confused the petition to qualify for the general election ballot, with the in lieu of petition.
(4) He confused independent candidates with write-in candidates.
If (3), then it should be recognized that this occurs after the primaries. The SOS expresses concern about filling vacancies. But the nominating conventions for convention-nominating parties are March 14, 21, and April 18. Candidates can begin collecting signatures the next day.
Independent candidates in some cases may not begin circulating petitions until after the primary runoff on May 26, one or two months after convention nominations can be made. Primary-nominsting parties can not fill nomination vacancies until after the primary runoff (county executive committees take office then). But county executive committees for convention-nominating parties are likely elected at county conventions in March (this would all be by party rule, there is nothing in statute).
Party replacements may be made up August 24, the SOS does not certify state and district candidates until August 27.
Write-in candidates for partisan office other than President do pay a filing fee or in lieu of petition. What is significant is that the amount of the filing fee and signatures on the in lieu of petition are those required for primary candidates (TEC 172.024 and TEC 172.025). The write-in application is due by August 17, giving the SOS 10 days to validate the application, including any petition before certifying the write-in candidates. In Texas, ballots are modified if there are declared write-in candidates, and the write-in candidates listed in each voting booth, and each mail ballot packet.
Thus there is no reason to assume as the SOS has, that the fact that the filing fee specified in 141.041 is the same as for primary nomination, that it must be levied at the same time. If one examines the structure of TEC 146 Subchapter B, its provision are almost identical to 141.041.
Do the Texas gerrymander hacks/oligarchs write ANY laws or just copy stuff ordered by special interest gangsters — Guvs, AG, SOS, party bosses, etc. ???
Same ROT in ALL regimes in USA – Fed/States/Locals ??? Duh.
—
PR and AppV and TOTSOP
@Jim, yes on reading the advisory, and of course on Whitley leaving (and why). You’re probably right indeed that John/Jane Doe do not exist.
That said, no excuse for career staff at SoS not doing better interpretive work between Whitley’s departure and Hughs’ start. Per the advisory, we blame Keith Ingram first, who would be at least as doltish as Drew, if dolt is assumed to be the most likely answer on both.
Right also on the federal lawsuit, from what I know on the Green Party angle. It has been in the works, and 2504 was the “vehicle” to bring it to reality sooner rather than later.
On Springer? I’m up here in Texoma, so, of your four options? Given how Abbott owned him on one of the bills he sponsored, “dolt” has about equal probability as either 3 or 4. Lying is probably well behind the other three.
There’s a sidebar, re 141.041, now that you remind me, that should be made into an amended complaint to that federal lawsuit. If the SoS is going to interpret 2504 to say that all Libertarian and Green *candidates* need to pay filing fees, if it does not apply the same to R and D *candidates,* then we have an additional voting rights issue.
@SG,
Imagine you and some others decide to establish the Texoma Party, with a platform advocating redemption of Greer County and resisting the BLM invasion. You establish a state executive committee, recruit some county chairs, and define your rules, which you post on the party’s Internet website. Party chairs accept candidate applications for nomination, candidates make a campaign treasurer appointment. 10 days after the filing deadline party chairs send a list of the applicants to the SOS who forwards a copy to the Texas Ethics Commission. By January 2 you file your party registration with the SOS. At this point you are every bit as legitimate as the D’s, R’s, L’s, and G’s to make nominations for November.
You hold conventions in March and April, making nominations. Within 20 days of the convention where a nomination is made you send certifications to tbe SOS or county clerk, depending on the office.
You have made nominations in a lawful manner. The only issue to be resolved is whether your party qualifies to have its nominees on the November ballot. Did you have 83,000 participants at your precinct conventions or reached that level with signatures on the supplementary petition.
It is beyond ridiculous for Ruth Hughs to demand the nominees demonstrate a modicum of support at a time when your party was just being formed (a year before the election).
Incidentally, that petition is due before the grifter parties have even bothered to make all their nominations.
@SG,
There is a filing deadline for applications for nomination by convention. There is no filing period. Applicants before September 1, could not have been assessed a filing fee or submit an in lieu of petition. That would have been a due process violation. The legislature could have provided an earlier effective date. Presumably they were aware of this but were not concerned because they expected the fees to be paid in order that the nominees be placed on the November 2020 ballots.
I suspect that the SOS has not adopted any rules (TEC 141.041(f)). They posted an advisory based on what might have been the rules if they had actually adopted them. This is also a due process violation.
Primary candidates purchase space on the primary ballot to display their candidacy. It is effectively a classified advertisement. At one time, ballots were likely printed by newspapers who had the equipment to do so. Kinkos did not exist. Later speciality printers were established who could meet technical standards. Hart InterCivic is a joint venture of one such company and Dell to produce voting machines.
Poll workers in primaries are party members. It is a patronage position. The filing fee also goes to pay these party faithful. If they were not paid, they would likely volunteer, just as party faithful do at Libertarian or Green conventions when maintaining the attendance rosters. Some of these poll workers likely contribute their wages to party candidates. The county party chairs are also compensated (I bet in most counties the county chair is not paid anything by the party).
Other expenses such as rental of voting machines is likely spent in the county (they are guaranteed a cut rate on county equipment).
The state and county primary funds are managed by the political party chairs.
Drew Springer cuts a check to the Republican Party of Texas sent or handed to the state RPT chair (or his agent). Other candidates for representative (districts in one county) file with the county party, so they don’t even have to travel to Austin (for some candidates such a trip would require gas and wear and tear on their truck, plus meals, and a hotel, the only consolation a stop at Buc-ee’s).
Early voting is paid for by the counties. In some counties mobile voting centers are used to lure citizens to vote in the primaries which prevents them from participating in a minor-party convention or signing a supplementary petition. These are targeted at susceptible audiences such as seniors or college students. It is a crime to vote in a primary and to participate in a minor-party convention.
The filing fee for convention nominees is paid to the State of Texas or the County, not the political parties. The SOS spends no money on party conventions (it is illegal to do so. If Ruth Hughs did so she could end up in prison). Precinct conventions are held on a Tuesday night a week after the primary, and three weeks after the beginning of early voting. Voting can occur over 13 days, including Saturday and Sunday.
Incarcerated voters can vote in primaries, but not participate in conventions. Those out of the county can not participate in a convention. Those who are disabled or elderly might not be able to easily get to the convention location, but they can vote early by mail. Public transportation may not be available at night, and some drivers have vision problems at night. These are eaual protection vbiolations and likely also UOCAVA.
So not only do convention-nominating parties receive zero benefits from any filing fees, let alone massive state subsdidies, their nominees must pay a fee which primary nominees are not subject to.
@Jim All correct on both responses. And, per something Demo Rep has said elsewhere, the federal court system, not just in Texas, but nationally, has said that in general, what Texas does with the “grifter parties” on the primary process, in your second response, is perfectly legal. So, @DR, no, it’s not Texas.
Jim, it’s also illegal to vote in a primary and sign a petition for third-party or other ballot access, of course, but SoS won’t tell you that one either.
==
And per “incarcerated voters”? Nationally, states can adopt anything they want to bar felons from voting, but per SCOTUS rulings on states not adding to qualifications, felons can serve in Congress unless refused a seat under ‘member qualifications.’
@SG,
In Texas, felons who have not completed their sentence, including probation can not vote.
Most persons in county jail are not felons. See TEC 82.004 (also TEC 82.001, TEC 82.002, TEC 82.003 for other classes who can vote in primaries, but can not participate in precinct conventions, or might have difficulty doing do.
A petition can only be signed by a registered voter, or someone who has been issued a voter registration certificate for a registration that will become effective on or before election day. But Texas does not permit someone to pre-register until 17y10m. So someone could be age-qualified under Texas statute, and the 26th Amendment but be denied the right to sign the petition for an applicant to be on the ballot due to procedural barriers.
Or imagine someone who was 18 before March 10 and attended a precinct convention. They count towards qualifying a party. They may have even served as a delegate to a nominating convention, and even been the decisive vote in a nomination contest. Or maybe they signed the qualifying petition.
So they can help qualify all the nominees of the party for the general election, even help choose the nominees, but were unable to help qualify one of them to be nominated. In a worst case scenario, the nomination choice might down to an applicant financially backed by an East Texas chicken processor (e.g. a grandson of Bo Pilgrim) and a candidate attempting to qualify by petition. The petition fell one signature short because the voter who would have been critical to his actual nomination could not sign the petition that purported to place him on the general election ballot.
@SG,
Texas does not permit anonymous political contributions. Guidance from the Texas Ethics Commission warns against passing the hat or having a contribution jar. A candidate who has popular support from ordinary citizens who might give up dessert to contribute, or empty their loose change jar, might not be willing or able to contribute because of the rigamarole of filling out forms. But a wealthy candidate can easily self-fund or receive contributions from PACs. Drew Springer has not had an opponent since 2012. He has amassed nearly a quarter million in contributions (campaign funds may be invested, and not only in interest-bearing accounts). In his latest report, almost all contributers are from Austin, with the exception of one from Fort Worth and one from Houston and one from Chickasaw Nation in Chickasaw, OK. Houston and Fort Worth are not in his district, and residents of Oklahoma are not even Texans or eligible to vote in Texas.
Petition signers are restricted to registered voters in a district.
Also note that Texas does not restrict convention voting to delegates residing in a district though a party may by rule do so (TEC 181.061(d). So a person who is eligible to serve as a delegate who nominates a candidate, or even just votes for such a delegate is barred from signing the petition.
@Jim The D’s actually have not just an opponent but a contested primary for Drew’s seat this year!
On contributions, Chickasaw Nation is likely a contributor because of Drew’s stance on gambling in Texas. Wouldn’t be surprised if other Texas state reps or senators also get Oklahoma Indian money for similar reasons.
Good side point on the no filing period, just deadline, for convention parties.
@SG,
I only see one opponent.
Incidentally if you look at the petition for convention nomination, Footnote 2 is missing for the English instructions.
Does this mean that a minor party candidate petition must state that the candidate is the nominee for
Distrito Represente del Estado 68
The Attorney General messed up the style of the case on his appeal, by adding an extra comma, so thar Roy Eriksen is now Roy and Eriksen.
One of the 14th Circuit panelists Jerry Zimmerer, is running for Chief Justice of the Supreme Court where he has a Libertarian opponent Mark Ash.
This is such an extreme conflict of interest that he should have recused himself without thinking. He is more than marginally involved in Democratic Party politics, Harris County Democratic Executive Committee, delegate to state conventions in 2008 and 2016, and Election Judge. In this role he would have been paid from fees received from Democratic candidates.
@SG,
I assume you are familiar with statement that is on the top of petitions. The circulator must point to the text and read it aloud. The circulator must swear an oath that he did so before permitting the signer to sign the petition (TEC 141.064 and TEC 141.065). The ostensible purpose of this regulation is to ensure that the signer understands what he is signing, and what restrictions may be placed on him.
The statement generally begins with “I know the purpose of this petition”. It is written from the perspective of the potential signer. “know” must be interpreted as the belief or understanding of a reasonable layman. One can not really know the legal effect of a petition in the sense they know what 2 plus 2 is or the first 10 digits of pi.
So let’s look at the petition for qualifying a party. I will omit the restrictions on signers, as unimportant to the point. I will also fill in any blanks in the statement.
“I know that the purpose of this petition is to entitle the Mugwump Party to have its nominees placed on the ballot in the general election for state and county officers.”
You could ask the circulator to confirm that “general election” is the election in November 6 to 8 months hence, and ask what the Mugwump Party platform is and who the nominees of the party are. Depending on timing, they may be known, or soon will be determined. You might take special delight that there is a Mugwump nominee for HD-68 running against Drew Springer. You might not know all the mechanical details, but it would be a reasonable understanding that if sufficient voters sign the petition in a timely fashion that the Mugwump nominees will be on the ballot when you vote in November. You want this to happen and sign the petition.
Now let’s look at the new petition.
“I know that the purpose of this petition is to entitle John Doe to have their name placed on the ballot for the office of State Representative District 68 as a candidate for the Mugwump Party for the 2020 general election for state and county officers.”
Since you were presented this petition in September 2019, you might be astonished that the “general” election was indeed 14 months away, but it is nonetheless true. The John Doe in this case is not the former SOS though they share a name. You could ask the same questions about the Mugwump Party and find out more about Doe. How was he nominated? He hasn’t been nominated. But he will be? He might. There can be other candidates, or the convention might not nominate anyone for that office.
Again, you might not understand all the mechanical details, but you could clearly not know that John Doe would be entitled to have his name placed on the November 2020 general election ballot. No reasonable person could sign the petition.
Perhaps the SOS could argue that the circulator was only required to perform rote recitation, and the signer could close his eyes, and cover his ears, and shut off his brain. That the whole process was mere folderol.