On December 20, the Texas State Court of Appeals, 14th district, issued an order in Hughs v Dikeman, 14-19-969-cv. This is the case over the new law that requires candidates seeking the nomination of a party that nominates by convention to pay a filing fee, when the individual notifies the party that he or she is seeking a nomination. The two-page order stays the trial court order that enjoined the fees. It also requires that the state file a brief by January 6, 2020; and that the Libertarian Party plaintiffs file their brief by January 10, 2020.
The three judges on the case in the Court of Appeals are Jerry Zimmerer, Charles Spain, and Meagan Hassan. All are Democrats, as is the trial court judge.
EQUAL in 14-1
Much too difficult to detect ??? — esp for judges ???
TEC 141.041 makes no such requirement.
Only someone who was told what the law said before they actually read it would misread it that way. Please correct your blog entry.
TEC 141.041 would require a person who is the nominee of a convention-nominating party to pay a filing fee or submit an in lieu of petition. A person who has made an application to be considered for nomination is not the nominee. Even though that application is a necessary step, it is not sufficient.
Imagine that a suitor proposes matrimony to a comely maiden. Now imagine that there is a second suitor seeking the same lady’s hand. Are they married? No, even though they have taken an initial step towards that result.
A suitor might die, or decide to withdraw his proposal. He might be found to be ineligible. The woman might choose the other suitor, or even reject them both. Only when an agreement is reached does the state collect a marriage license fee.
In the case of 141.041 it is only after a nomination is made that placement on the general election ballot is relevant.
Contrast with TEC 172.021 which requires an application to be placed on a primary ballot, to be accompanied by a filing fee or an in lieu of fee. A Democrat or Republican can not be nominated unless they appear on the primary ballot. Texas does not permit write-ins in primaries. The filing fee is paid to the political party, which uses the fee to pay for ink and paper for the ballots for the party-administered primary. The fee is paid in December so that the ballots can be sent overseas in January. The primary is for the benefit of the party, payments are made to party officials and poll workers, which is essentially a patronage position. The party receives considerable state subsidies and assistance along with publicity.
TEC 141.041 treats candidates nominated by convention differently than those nominated by primary or petition. These latter two classes of individuals are not required to pay a filing fee to be placed on the general election ballot.
Olde rotted times — divine right of kings – oligarch nobles.
NEW rotted times — UNEQUAL ballot access laws and minority rule gerrymanders.
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Same olde types trying to defend ANY part of the NEW ROT.
Liberate Texas and ALL other States to get EQUAL ballot access laws and get REAL Democracy via PR.
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PR and AppV and TOTSOP
Putting the most cynical view on this:
The Republicans controlling the legislature simultaneously added filing fees but lowered the signature requirement for ballot access to 2% in the last 10 years. Why? Discourage Libertarians, encourage Greens. The Libertarians had ballot access anyway (>5% under the old rules) so the filing fees are intended to add a bit of disincentive. The Greens got 3%, so the new 2% rule puts them back on the ballot if they pay up.
As Jim Riley points out the text on filing fees clearly applies to nominees, not potential nominees. But then there is section (F) “The secretary of state shall adopt rules as necessary to implement this section”. She (Ruth Hughes) realized that imposing fees prior to the convention would discourage even more Libertarians and decided to give it a try despite the text.
Anyway, that’s a theory. OTOH it could just be sloppiness and ignorance.
Does the stay have any negative effect? The filing deadline (181.033) has already passed.
The State party robot HACKS have COMMAND ORDERS from Devil City —
DIVIDE and CONQUER —
LEFT gerrymander STATES — DIVIDE RIGHTWING PARTIES
RIGHT gerrymander STATES — DIVIDE LEFTWING PARTIES
ONLY somewhat amazing thing — the State gangsters have different byzantine machinations in the D&C schemes [for history reasons- EARLY ballot access laws, etc.]
@eeyn,
The antonym of cynical is naive.
The reason HB 2504 passed was because it was a vehicle for putting the Green Party back on the ballot. It has a 5-election lookback, so they are good through 2026. The likely reason was that the Democrats were blocking confirmation of David Whitley as SOS, and also blocking or delaying another election bill.
There was a bill HB 4416 that would have increased the party qualification requirement from 5% to 10%. On second reading some Republicans started speaking against the bill. The Democrats sensed they could peel off enough votes to block a Republican bill, and let them speak eloquently, if not sincerely, about voting rights. The author postponed the bill until later in the evening, and the Democrats even forced a record vote. When the bill came up again, the author postponed consideration until Independence Day (March 2, 2020) killing the bill.
HB 2504 came up the next evening after a point of order on another bill. It was 11+ hours into the days session. Representatives may have been grabbing a bite to eat, or were relaxing, or lobbying each otherr on other bills. A Democrat, Joe Moody, was presiding. Drew Springer introduced his bill and said he had a floor amendment that would “make sure all parties are equally represented on the ballot” He said the amendment was acceptable to the author (himself). If an amendment is not acceptable to the author it is considered hostile and will be debated and have to be forced into a bill.
Since the author accepted the anendment it was adopted without objection. I think the amendment was available on tablets but nobody was paying attention and the bill was passed on a voice vote (ayes and noes).
Only later did the Democrats learn about the New Green Deal (not to be confused with the Green New Deal).
But by that time the Republicans were not going to be derailed, for example permitting senate amendments that would require concurrence by the House.
@eeyn,
I don’t think the SOS has adopted rules in any formal sense. This is likely a due process violation. A formal process would have permitted public comments. It will be interesting during discovery to find out what the process was and who was consulted.
The simplest explanation is that the SOS assumed it applied to applicants for consideration to be nominated, and then misread the actual language. Lawyers generally won’t lie, but may present information in a way that will cause others to draw false inferences. This appears to be the case with Judge Pitman. The SOS office may have mislead themselves.
We can only go by what the legislature actually wrote. But there are other clues that may indicate legislative intent. Drew Springer said that independent candidates pay a filing fee. This is not true. I doubt that he lied, but may have reflected a misunderstanding. Independent candidates do file a petition. For many district offices, including all appelate courts, all 15 SBOE districts, 36 congressional districts, 31 senate districts, 147 of 150 house districts, and the 47 counties with more than 25,000 voters, the independent petition and in lieu of petition for partisan candidates are the same.
The independent candidates collect petitions in June. While perhaps not a cash payment, it represents sweat equity, particularly in June in Texas. An independent candidate is effectively an ad hoc nomination by the group of petition signers (who may not have participated in a nomination for the same office in a primary. Recall, “Save yourself for Kinky.”). The petition is presented to either the SOS or the county judge, the same officials that the fee or petition would be presented to under 141.041.
Note that under TEC 181.068 certification of county and precinct nominees is with the county clerk, not the county judge.
The benefit received under TEC 141.041 or TEC 142.005 is to be placed on the general election ballot.
Texas also requires write-in candidates to pay a filing fee or an in lieu of petition. Perhaps Drew Springer was confusing these candidates with independent candidates. The requirements under TEC Chapter 146 Subchapter B are similar to those under TEC 141.041. The fee is paid when the candidate qualifies to receive votes.
In Texas, a candidate is elected when they receive the most votes. A vote is an X next to the candidates name on the ballot, or their name written in after they have qualified to have those votes counted.
It is conceivable that a fee or in lieu of petition from all general election candidates would be constitutional if it was required at the time the candidate qualified for the general election and included the Democratic/Republican freeloaders.
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HB 2504 had a fiscal note attached. The amount was apparently based on filings under TEC 181.068, since no estimate of county revenues was made. Certification for county and precinct nominees is sent to the county clerk. The SOS does not have that data, and thus the Legislative Budget Board could not easily determine the amount without surveying all 254 counties.
The SOS does have the filings under TEC 181.032 which would provide data on the number of applicants. But I think the SOS just sticks that in a filing cabinet or passes it on to the Texas Ethics Commission.
The 2009 amendment to TEC 181.032 was specifically to include the filing date. In Texas, non-federal candidates must make a campaign treasurer appointment before they become a candidate, even if they have not had any contributions or expenditures and don’t intend to make any. Collection of in lieu of signatures or seeking contributions may have resulted in violation of campaign finance laws. Was the Texas Ethics Commission consulted during the non-existent SOS rule-making process?
Discovery of the methodology of the fiscal note should be made, to confirm that the Legislative Budget Board and the SOS interpreted TEC 141.041 to apply to certified nominees rather than applicants for consideration of nomination.
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TEC 141.001(a)(5) sets durational residency requirements for offices not set by other stastute or the Texas Constitution.
Under TEC 141.001(a)(5) the residency requirement is based on the manner of candidacy. Ignoring the fact that it is a flaming equal protection violation to set different residency requirements based on manner of candidacy, Texas statute differentiates between candidates seeking nomination by primary, who have been nominated by convention, have qualified as in independent candidate, or elected as a write-in.
Note the effective date of HB 831 violates equal protection by applying different standards for determining residency for convention nominees and independent candidates.
Note 2, TEC 141.001(a)(5) does not apply to legislative candidates (TEC 141.001(c) Article 3 Sections 6 and 7). If it did, Barbara Gervins-Hawkins was unlawfully elected.
Note 3, The author of HB 831, Dan Huberty was confused by that point. While the state might legitimately define “residency” for interpretation of the Constitution, TEC 141.001 was not the place to do so.
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TEC 172.021 provides the application for primary nomination. TEC 172.021(a) says a candidate must apply. TEC 172.021(b) says the applicant must pony up the filing fee. It is not until TEC 172.022 and TEC 172.023 that the statutes specify who the filing fee is paid to, or when it must be paid.
If the legislature wanted applicants for consideration for nomination by convention to pay a fee, they would have amended TEC 181.031.
@eeyn,
This is the closest thing to a rule.
https://www.sos.state.tx.us/elections/laws/advisory2019-13.shtml
Notice under guidance that it indicates that one is making an application for the November 3, 2020 election.
I wonder if the SOS has actually been provided to the party chairs.
Have all 254 county judges been given guidance?
A party does not have to tell the SOS that they will be nominating by convention until June 2. A county party nominating under Chapter 182 does not have to tell anyone they are nominating.
TEC 141.038(b) says to contact the filing authority to get a refund. The filing authority is the county chair or state chair. Will the SOS or county judge have to be sued, to get the money back.
Under TEC 172.021(b-1) if the filing fee for a primary candidate bounces, they can replace it before the deadline. Do the SOS rules give the same opportunity to convention candidates under the crazy bifurcated filing system?
You asked about TEC 181.033. But you did not ask about TEC 181.033(b) and the SOS rule does not appear to cover the subject.
There is no filing period for convention candidates, only a filing deadline. By having a September 1 effective date, Texas changed filing requirements while filing was going on. The legislature could have added an urgency clause to HB 2504. That they did not indicates that they anticipated the fee to paid in the spring.
How STONE AGE is the Texas regime ???
— as compared to other States- like NY with its Camp Comm, etc. ???
Just saw Sam Houston show and his major effort in 1836 to get Texas Independence.
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PR and AppV and TOTSOP