On September 10, the Fifth Circuit issued an opinion in Miller v Nelson, 23-50537, upholding virtually every Texas ballot access law that injures minor party and independent candidates. The decision is by Judge Jennifer Walker Elrod, a Bush Jr. appointee. It is also signed by Judge Jacques L. Wiener, a Bush Sr. appointee, and Judge Cory T. Wilson, a Trump appointee. The decision is only 16 pages long, and over half of it merely summarizes the challenged laws and the history of the case.
The judges ignored almost all of the evidence presented by the plaintiffs, and merely say that the challenged laws were upheld by past precedents. Texas badly discriminates against independent presidential candidates as compared to minor parties. It requires more signatures for an independent presidential candidate than for a new party, and gives independent presidential candidates less time to collect the signatures. But the panel said that point was settled in 2004 in Nader v Connor. In 2004, Ralph Nader had sued over the disparate treatment of independent presidential candidates. But the judges in Nader v Connor made a factual mistake. They said that the disparity could be excused because minor party presidential candidates had to file a declaration of candidacy in January of the election year, whereas independent presidential candidates did not need to file such a declaration. This was not true; Texas has never required minor party presidential candidates to file such a declaration early in the year. But the judges in the current case refused to mention that point, even though it had been forcefully argued. Also the judges did not mention any of the cases that say it is unconstitutional for states to require more signatures for an statewide independent candidate than for a new party. Such precedents exist in Alabama, Maryland, and North Carolina.
The judges upheld a 2019 law that requires minor party candidates to pay a filing fee. The plaintiffs had pointed out that the law is discriminatory, because the revenue from major party candidates is sent to those major parties, whereas the government keeps the revenue paid by minor party candidates. The decision’s analysis of this issue is on pages eleven, and is a complete non sequiter. It says, “While the Major Parties retain the fees their candidates pay, the State retains the fees the Minor Party candidates pay.” But then it goes on to say that this is no problem because every candidate must pay the fee. The issue isn’t equal protection for the candidates; it is equal protection for the parties, but nothing is said about that.
The Texas petition deadlines for both minor parties and independent candidates are in May. The decision ignores all the decisions from other states that have struck down petition deadlines as early as May or June. Such precedents exist in Alaska, Arizona, Idaho, Kansas, Massachusetts, Nevada, and South Dakota.
The decision ignore all the evidence in the case that a large number of signatures is not needed to keep the ballot uncrowded. The decision ignores the historical evidence that before 1967, when Texas didn’t require any petition whatsoever for a new party, the ballot was never crowded. Texas never had more than six parties on the ballot.
The lower court had also upheld all of these laws, but it had declared that the failure of Texas to let minor party and independent candidates use electronic signatures violates the Constitution. But the Fifth Circuit reversed that, and it is true that there are no precedents to support the decision made by the U.S. District Court.
