On January 28, Texas filed this brief in Bilyeu v Esparza, w.d., 1:21cv-1089. This is the Libertarian Party challenge to the law that requires candidates seeing a nomination at a convention to have already paid a filing fee.
On January 28, Texas filed this brief in Bilyeu v Esparza, w.d., 1:21cv-1089. This is the Libertarian Party challenge to the law that requires candidates seeing a nomination at a convention to have already paid a filing fee.
The so-called “advisory” promulgated in 2019 is under injunction in state court. Recently a state district court refused to dissolve that injunction.
The SOS knew that they were under injunction because they sought to dissolve that injunction. In seeking dissolution, they willingly set a hearing in late January, over a month after the supposed deadline. In effect they were seeking to retroactively enforce their guideline.
The SOS should be sanctioned for collecting or attempting to collect filing fees for the 2022 election cycle and representing to the public that certain candidates have not complied with statute. Any filing fees that the Secretary of State or county judges have collected should be returned to the candidates, or placed in escrow.
It is unknown what process was used in promulgating guideline 2019-13. We know that it was enjoined because it was ultra vires (unlawful or outside the law). Despite the fact that guidelines purport to be equivalent to statute for primary candidates, the guideline appears to have drafted in secrecy. Passage of a statute requires a quite formal process, including public committee hearings, passage through both houses, reading on three separate days, and signing by the governor.
Guideline 2019-13 has not been updated, and still references a section of the statute, TEC 141.038, that has been repealed. This would appear
… to be a major due process violation.
Old statute 141.041 was based on the filing requirements for write-in candidates in TEC 146 Subchapter B, specifying the same filing fees and the same filing officers. Since 141.041 specified that the filing fee be paid by a candidate who is nominated by convention in order to be placed on the general election ballot, it is clear that the fee would be paid after the nomination is made, and prior to the preparation of the general election ballot.
The Texas Legislature presumably understands verb tenses and the difference between primary and general elections. The author of HB 2504, Drew Springer, stated at the 2019 Elections Committee hearing that independent candidates paid a filing fee, and this assertion resulted in one witness to switch from opposing the bill to being neutral. It is untrue that independent candidates pay a filing fee, but instead must file a petition. Springer may be confused. Alternatively, he may have thought the procedure for write-in candidates was the procedure for independent candidates.
The SOS simply misinterpreted the 2019 statute. Note that the SOS could have drafed regulations providing that nominees pay the filing fee after they are nominated and prior to the time of ballot preparation. Note that statute would clearly violate equal protection since Democrats and Republican nominees do not pay a filing fee to appear on the general election ballot. In 2020, Pat Fallon did not pay any filing fee, but was placed on the general election ballot and elected to Congress.
The 2021 legislation was not a clarification, but a change to match the SOS misreading. As a totally new procedure, the SOS should have promulgated new rules in a formal process by which interested parties could participate. This is a due process violation.
It is not true that the date of conventions is linked to the date of the primary. The practice of conducting the primary and precinct conventions was broken in 2003 when the primary was moved a week earlier (this was seven years after Texas Independent v Kirk). When Texas moved the filing deadline for the primary before Christmas they did not move the filing deadline for convention candidates. Even to this date, Texas does not require a convention-nominating party to inform the SOS that they will be nominating by convention until several weeks after they are required to inform the SOS which candidates have filed.
There is no functional reason for having filing for convention nomination in the first place. There was no such requirement until 1961, when the Democratic Party sought to oppress Republicans, who had usually nominated by convention. Texas statute recognizes the date of the nominating convention as the deadline for durational residency for some offices (see TEC 141.001(a)(5)). OTOH for primary candidates the durational period ends at the filing deadline in December. For independent candidates the durational period ends at the deadline for filing petitions. For write-in candidates, the period ends on general election day. That is, candidates must have lived in a jurisdiction for 6 months before they officially qualify for placement on a ballot (or for those never on a ballot, when they are elected).
The reason for filing for primary candidates is so that ballots may be printed. The original purpose of the primary filing fee was to help pay for the primary, which was at the time conducted entirely by the political parties. At one time, primary polling places for different parties could not be in the same building. As now, candidates filed with party officials, who distributed information among the state and county chairs. The state party chair would notify the county party chair of gubernatorial candidates so they could be placed on the primary ballot in their county. If a county did not have a party chair, there was no primary for that party in that county.
It is only after the primary votes were canvassed by party officials that the SOS would be notified who a party had nominated. Until then, they would at least officially, know only what they had read in the newspaper or heard from the rumor mill.
Filing fees had become so exorbitant that the SCOTUS in Bullock v Carter ruled them unconstitutional. That is when the state began subsidizing political parties, but continued to require candidates to pay some of the freight. The state did not make this funding permanent for two elections because they feared having to fund a La Raza Unida primary. They later increased the fees to reduce the subsidy.
Some of the fees go to paying the party chair. Significant amounts of the funds go to payments to election judges and clerks who are essentially patronage positions.
Bizarrely, Texas permits legislative candidates to establish district residency after they have filed for office. They have to file for office for a 24-month term, 13 months before that term begins, establish residency by a month later, and face election 11 months after that. If they are an independent candidate they may be denied the right to collect signatures for five months.
That is correct. Independent candidates must make a public declaration of an attempt to qualify, five months before they are legally permitted to begin collecting signatures.