On June 23, the Texas State Appeals Court heard Dikeman v Hughs, 14-19-00969, a Libertarian Party lawsuit that challenges the 2019 law that says candidates seeking the nomination of a party that nominates by convention must pay a filing fee. The law is not clear. Most people would probably read it to mean that only the nominees of convention parties must pay the fee, but the Secretary of State says even people who say they want a convention nomination must pay it, in advance of the convention.
Ever since 1903, Texas law allowed parties that nominate by primary to charge a filing fee. The parties used this money to pay for administering their primary. Back then, only the Democratic Party had primaries. Members of other parties were never asked to pay any fee. In 1972, the U.S. Supreme Court struck down the Texas filing fees, so the legislature changed the law to provide that the government would pay to administer primaries, and the government would get the revenue from the fees. But the 1973 law still had no provision for filing fees for parties that nominate by convention.
The hearing went well for the Libertarian Party. The three judges seem skeptical that the Secretary of State interpreted the 2019 law correctly. Thanks to Jim Riley for this news.
One would think that the state would be happy that a party nominating by convention, rather than by primary, would save the state the cost of holding a primary. But, no, the state wants its revenue anyway. I guess that I shouldn’t be surprised.
INDIVIDUAL CANDIDATES GET NOMINATED — NAMES ON ELECTION BALLOTS.
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NOOO PRIMARIES. NOO FEES.
EQUAL NOM PETS. – 14-1
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PR AND APPV — PENDING CONDORCET.
This is not true Richard. Living in Texas, and being in Drew Springer’s district, the law is VERY clear. It says “general election,” first of all, in the opening paragraphs. I quote:
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 141, Election Code, is amended by adding Section 141.041 to read as follows:
Sec. 141.041. FILING FEE OR PETITION TO APPEAR ON BALLOT FOR GENERAL ELECTION FOR STATE AND COUNTY OFFICERS. (a) In addition to any other requirements, to be eligible to be placed on the ballot for the general election for state and county officers, a candidate who is nominated by convention under Chapter 181 or 182 must:
(1) pay a filing fee to the secretary of state for a statewide or district office or the county judge for a county or precinct office; or
(2) submit to the secretary of state for a statewide or district office or the county judge for a county or precinct office a petition in lieu of a filing fee that satisfies the requirements prescribed by Subsection (e) and Section 141.062.
(b) The amount of the filing fee is the amount prescribed by Section 172.024 for a candidate for nomination for the same office in a general primary election.
Section 2 also mentions “general election.”
Please stop doing Ruth Hughs’ work for her.
CAN BAN JUSTICE RILEY CLEAN UP THE BALLOT ACCESS MESS SINCE 1968 – WILLIAMS V RHODES ???
For those who would like to check, that’s the language of the enrolled version of HB 2504, at https://capitol.texas.gov/BillLookup/Text.aspx?LegSess=86R&Bill=HB2504
Abolish ballot access laws as ballot censorship. Replace the rigged ballots with all write-in ballots which restore voter control of the ballot and make filing fees and petitions unnecessary – as they were unnecessary before 1888 in the United States.
This is a link to the hearing.
https://youtu.be/EaJ2ti_XP2g
The Libertarian case begins at about 35:00 into the video.
The cases are styled Hughs v Dikeman, since the SOS (Hughs) was the non-prevailing side in the district court.
The SOS challenged whether the district court had jurisdiction to hear the case. In many cases the SOS might be immune from lawsuit. There are two exceptions: (1) the SOS is acting outside the law; (2) the SOS action is unconstitutional (due process, equal protection, etc.)
In this case, the SOS misinterpreted 141.041 applying the fee to a class of persons not specified in the statute. This is in complete contrast to the language in TEC 181.031 “to be entitled to be considered for nomination by a convention … a person must make an application for nomination” and TEC 181.068 “the presiding officer of each convention … shall certify for placement on the general election ballot the name and address of each candidate nominated by the convention.”
The SOS would have an applicant for consideration for nomination, make a copy of that application and send it to the SOS or county judge accompanied by a filing fee or in lieu of petition. If the fee is sufficient the SOS would inform the party chair. The party chair would still be responsible for determining whether the applicant was qualified.
It is not until after the conventions are held that the SOS and county clerks are informed who has been nominated for placement on the general election ballot.
I think the appeals court will rule on the basis that the SOS was acting outside the law and remand the case to the district court.
The second part of the SOS appeal was the temporary injunction against the filing fee. By the time the appeal was acted on, the filing period had been completed, so the appeal court might just dissolve the stay.
@SG,
I think Richard was being charitable.
@DR,
See TEC 203.
For example there is a special election on July 14, 2020 to fill a state senate vacancy, that has two D’s, two R’s, one L (former state party chair Pat Dixon), and one I. There is no party qualification for special elections. If no candidate receives a majority there will be a runoff.
@JimRiley … OTOH, that comes off looking charitable to Richard. Was surprised you hadn’t beat me to the comments.
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That said, Jim, a question. As you know, the push for pre-nomination Greens and Libertarians to pay fees started before Hughs was appointed, while SOS was vacant. You think that Kenny Boy or somebody else had anything to do with this?
So, let me look at this.
Texas (read: taxpayers) pays $ millions to run primary voting around the state for initial voting and then run-off voting and gets in return a few thousand $ in filing fees from the Dems/Reps.
Someone needs to file a RICO suit against the two major parties here in Texas.
Why does it spend anything? Parties should pay for whatever costs are associated with picking their nominees if any. The only election the state should pay for, administer or have anything to do with is the general election.
@SG,
I’m pretty sure the New Green Deal was retaliatory. It is likely that the filing fee bill was just a handy vehicle to attach it to.
I don’t know the origins of Drew Springer’s bill. He had also proposed it in 2015. It got stuck in Calendars. Since the Senate doesn’t want to deal with a lot of bills, there will be what is known as a Christmas-tree bill. The author of a bill will offer it as an amendment, and will mention that it had been thoroughly vetted by the Elections Committee – which means it had a hearing, and the committee had later voted it out. There is a lot of trading. You hear my bill and vote it out, and I’ll reciprocate.
I doubt that the bill was Springer’s reason for running for the House. Somebody handed him the bill and he filed it. Perhaps this was to obscure its origin or intent. If you wanted applicants under Chapter 181 or 182 to pay a fee, you would put in 181 or 182. The party chairs could collect the money and use it to pay for conventions and refund any not needed.
Whether or not the misinterpretation of the bill was intended all along is unknown to me. The state blocked discovery with their appeal. The SOS has a process for promulgating rules, especially for cases where you really need the equivalent to statutes. You don’t just post a poorly crafted advisory on a web page.
I see no reason to suppose that the AG is doing anything other than acting as a state agency’s lawyer. It’s their job. The SOS office is not as independent as it is in other states since the SOS is not elected.
@Woody,
You asked “why does it” rather than “why should it”. Political parties used to fund their own primaries. They could have the local newspaper print ballots and set out a ballot box and then count the votes. Since the party was conducting the election they might not have even paid the election clerks. The state set the filing fees for some offices, but not other offices. So it ended up these other offices had outrageous filing fees.
Those facing these filing fees filed suit (Carter v Bullock). Bob Bullock was SOS at the time. The SCOTUS ruled that the fees were akin to a poll tax. The legislature passed a bill subsidizing primaries. Why? Because they were Democrats essentially elected in the Democratic primary/runoff. They were self-dealing.
Fast forward to 2020, and elections are much more expensive. The filing fees are still paid to the political parties, and the primaries theoretically administered by the parties. It is just now that the subsidies are much more expensive.