On September 8, the Texas State Court of Appeals, 14th district, issued an opinion in Hughs v Dikeman, 14-19-00969-CV. This is the case filed last year by the Texas Libertarian Party against the 2019 law that says candidates from convention parties must pay the same filing fee that candidates running in a major party primary must pay.
The State Court of Appeals says it is constitutional to require nominees of convention parties to pay filing fees, but that the Secretary of State was wrong to rule that anyone seeking the nomination of a convention party must pay the fee. Therefore, the Court upholds the lower court injunction against the new law, as applied to 2020.
The State Court of Appeals did not give any state interest in the new filing fees except to recite the stock phrase about guarding against voter confusion and frivolous candidates. The evidence does not support these conclusions. The evidence will be more thorough in the federal case that is now pending against the new fees. That case is Miller v Hughs, w.d., 1:19cv-700.
This decision ought to mean that the Texas Green Party candidates who were removed from the ballot earlier should be able to get back on the ballot. They were running for congress and state office. The Texas Supreme Court had put the Libertarians back on the ballot on Saturday, September 5, on the narrow grounds that the Republican Party challenge to them had been filed too late. Thanks to Jim Riley for this news.
I think that it is too strong to say that the 14th Court of Appeals upheld the filing fee as being constitutional. A state district court had issued a TRO against the fee because (1) it was unconstitutional; and (2) contrary to state law. TEC 141.041 said explicitly that the fee should apply to the nominee of the party and that the SOS _shall_ adopt regulations implementing the statute. The SOS did a less than poor job of adopting regulations (she posted some stuff on a web page which purports to have the same force as statute). Her “regulations” applied fee to applicants for nomination. If there are multiple applicants, the Libertarian may only nominate one; and because Libertarian Party rules provide for NOTA, there is no guarantee that the party will nominate even an unopposed applicant.
The SOS/AG made an interlocutory appeal to the 14th COA stating that under sovereign immunity the state district court did not have jurisdiction. There are at least two ways for the district court to have jurisdiction. One is if the SOS is acting outside the law. In this case she clearly did in her “regulations”. This justified a TRO against the lawless regulations.
The district court also found that TEC 141.041 was likely unconstitutional (a TRO does not constitute final judgment, just that the court thinks that the plaintiff will likely win the case, and will suffer irreparable harm without that restraining order). Apparently a defense is that the state only have to cite the flimsiest of excuses: such as a ballot crowding; frivolous candidates; modicum of support, erc.
I /think/ the 14th COA only vacated the TRO with respect to constitutionality issues, but it left in place with respect to the lawless implementation. The district court has never had a trial on the merits, and I /think/ the issue of constitutionality can still be pursued.
IANAL, Jim Riley, no esq for moi.
What Jim said, who like me is on the ground in Texas.
That said, Jim, per discussion here last week about the Texas Supremes’ ruling on the Texas GOP’s attempted block? Looking beyond the bad implementation and to the constitutionality issue, it can still be pursued, but I don’t think the state Supremes would be favorable. Last paragraphs of the body of that ruling seem to tip their hand.
This, of course, leads to the federal lawsuit, which, of course, isn’t being heard until next year.
Hi Jim,
If there were any LP candidates that paid the filing fee but did not become the LP nominee at convention perhaps we should have those people request their filing fee back from the Secretary of State. If the request is complied with it would set a useful precedent. If not, it would demonstrate harm or a tax on a special class or a fee for a non-rendered service (i.e., placement on the general election ballot.)
https://ballotpedia.org/Bullock_v._Carter
1974
HAPPENED TO COME FROM — GUESS WHERE — T-E-X-A-S
ANY ATTENTION FOR SCOTUS OPS — ESP IN TEXAS — STILL IN 1861-1865 REBELLION AGAINST USA CONST AND LAWS ???
https://www.mtsu.edu/first-amendment/article/980/ballot-access
2009 – LITTLE SCOTUS REAL ACTION SINCE —
MAJOR PRESSURE FROM TOP D/R PARTY HACKS ON SCOTUS HACKS –
DESTROY 3RD PARTIES AND INDEPENDENTS.
At the time of Carter v Bullock, filing fees were used to pay for the primaries. The amount was fixed for some offices, but others could vary. The filing fees for these offices was $$$ divided by number of candidates. The fees could be exorbidant. The state stepped in and subsidized the primaries, and limited the fees, but payment of fees is to the parties. The parties use the fees to pay for paper and ink for ballots, and to pay election workers who are chosen based on their party loyalty. The party chairs take a cut themselves. None of the money goes to the state, instead money flows from the state.
The party chairs recruit candidates, offer them a drink (possibly latte or bourbon) when they show up at party HQ. They then are expected to scrutinize the application, along with the fee check payable to the party and check the petition. They then count the votes, and promote the nominees.
They pay no filing fees to be on the general election ballot. The money was already spent. Some nominees such as Pat Fallon have paid no filing fee whatsoever.
Compare to their competitor who must travel to a sterile government office in Austin where they are likely greeted by an armed guard or bored clerk and forced to write a check which might flow back directly to their opposition parties. None of it goes to pay for the general election.
Compare to the convention nominating parties. The
caucuses – primaries – conventions – direct petitions/fees —
ALL part of the rotted system.