On January 24, a state trial court held a hearing in Dikeman v Scott, Harris County, 11th judicial district, 2019-76841. At the conclusion of the hearing the judge denied the state’s motion to lift the injunction against requiring minor party candidates to pay filing fees. Here is the one-page order. The state had prepared the order and had written that the Secretary of State’s motion is “granted.” But the judge lined out the words prepared by the state, and inserted, “Denied” in their place.
The state had argued that the injunction against the 2020 fees is obsolete because the legislature modified the filing fee law in 2021. The legislature in 2021 had made the fees even more severe. Whereas the original 2019 filing fee law appeared (vaguely) only to apply to nominees of convention parties, the 2021 law says the fees even apply to candidates who ask a convention for a nomination.
Texas does not require independent candidates to pay a filing fee. Traditionally, in Texas, only candidates running in a primary have ever been required to pay filing fees. Their purpose is to keep the primary ballot from being too crowded, because there is no petition needed for a candidate to get on a Texas primary ballot.
This is a Libertarian Party case. The Libertarian Party is now seeking declaratory relief against the fees, not only in this case, but in a parallel federal case that will be argued in February. Thanks to Jim Riley for this news and for the link.
Texas does require a filing fee for write-in candidates (except for president). Texas may be unique in that it requires the list of declared write-in candidates to be posted in each voting booth. This is apparently so a voter will know which names are to be counted, and perhaps to help with spelling. After this had been in place a few years, county clerks lobbied to have a filing fee added. There may have been too many vanity candidates – but I am not sure of that.
They couldn’t logically require the same filing requirements as for independent candidates, so they copied the amounts from primary candidates. They chose a filing deadline (August) more appropriate for the general election. They did use the same filing agents as for independent candidates, and they simply deposited the fees in the state or county general fund.
Whoever wrote the 2019 bill borrowed the text of the statute for write-in candidates, and placed it in a chapter of the code more related to the general election.
The language clearly states that the fee is for nominated candidates and it is to make them “eligible” to appear on the general election ballot.
The bill may have been drafted by a bozo, particularly if Drew Springer wrote it, but I believe the legal presumption is that the legislature knows what it is doing, and understands about verb tenses and the difference between general elections and primary elections and conventions.
The SOS simply made an incorrect inferrence in drafting its “rules”. Though the SOS knows how to draft regulations in a formal manner, they simply posted their “rules” on their website. This was despite the equivalent procedure for primary candidates being in statute.
The actual ruling by the district court was that the “rules” were ultra vires (outside the law or unlawful) and that is the basis of the TRO (there has yet to be discovery or a trial).
An appeals court did overturn an injunction based on unconstitutionality of the statute. But the standard for a TRO on constitutional grounds requires probable success on all possible implementations of a statute. That may be a high barrier when the state’s initial implementation is unlawful.
Being overcrowded on the ballot is the SYSTEMS lame excuse for denying third political party candidates access to the elective ballot. It’s a poor argument. So, what? Are they saying American voters are stupid and a crowded ballot would confuse them? Duh!
I don’t know that Texas has ever claimed that the primary filing fee was for purposes of keeping the ballot uncrowded. The filing fee was instituted when the parties ran and paid for their own primaries. Certain offices had fees set in statute, but others were assessed based on the cost of running the primary. It would not cost much to print paper ballots or build a wooden ballot box. Precinct election officials would likely donate their time.
Only later did the cost explode, resulting in the state subsidizing Democratic primaries. The filing fees were more a vestige of the old funding system, retained to reduce the state subsidy. At various times they have been concerned that La Raza Unida or Libertarians would qualify for a primary and receive a massive subsidy.
When a filing fee was proposed for the Libertarian Party, it was at a time the Libertarian Party qualified for a primary. They got a fiscal note of several million attached to the bill, and the bill went nowhere.
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