Third parties, independents sue Texas over HB 2504 and other ballot access restrictions (updated)

Note: The following, in Roman, is verbatim from a press release by Oliver Hall, legal counsel for Center for Competitive Democracy, and Jane Nam, media and communications manager with Shearman and Sterling. (It's not complete, but everything here is verbatim.)

And now that I have it up, I have posted a few interspersed thoughts in red italics.Updates from the original are in blue-green italics.

A group of Texas voters, candidates and minor political parties filed suit today (July 11) in federal court in Austin, alleging that the Texas Election Code violates their First and Fourteenth Amendment rights by imposing discriminatory and severely burdensome requirements on independent candidates and minor political parties that seek access to Texas’ general election ballot. The filing challenges the combined impact of several statutory provisions, including the large number of handwritten voter signatures that must be submitted on paper nomination petitions in a limited period of time, as well as the restrictions on when nomination petitions may be circulated, which voters are eligible to sign them, and the deadlines for filing nomination petitions.

Update, early August: The plaintiffs have already filed their first amended complaint. Among other things, it notes Texas has changed signature requirements in the past. The biggie is that it notes that "primary parties" have ballot access taxpayer-funded. (That said, the amended complaint follows Paxton's language in referencing just the gov's race, too.)

Then, to the heart of the matter. The complaint notes that "primary parties" can do many things electronically with the state, including most submissions related to the primary process.

Next, it attacks the issue that independents and non-2 percent third parties can only start signature drives after the duopoly primaries AND cannot get signatures from people who voted in primaries. Personally, I think this is a First Amendment violation. The complaint later notes that.

Next, it goes on to note the cost of paid petition drive workers, often necessary in such cases, and that this is not only an additional burden, it's one the duopoly parties again don't face.

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Update, Aug. 9: Fresh off losing a case at the Fifth Circuit over Indian adoptions, the state's one-eyed spavined mule, AG Kenny Paxton, has filed to dismiss, citing the paucity of independent candidates. This not only ignores the third parties, of course, but, per Ballot Access News, ignores that the Eighth and Ninth Circuits have ruled individual voters, not just indy candidates, have standing in such types of cases. He also gets previous and current state law wrong; the access threshold is 2 percent of any statewide race, not the gov's race. He then claims the petition laws are sound. "Assuming facts not in evidence" would be the immediate counterargument, especially given that the plaintiffs have made the argument that they're not constitutional. 

Given the complexity of issues, I highly doubt the Fifth Circuit will dismiss in toto. I'm not sure if it will buy a counterargument from other circuits on independent candidates, or individual voters, and standing.

Should I see a second amended complaint, in response to Paxton, I'll post it.

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Update, Aug. 22: The Secretary of State's office has now officially stated the fees of HB 2504 must be paid. With this, and per another comment at Ballot-Access News, I presume an injunction request by the plaintiffs is next.

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And, update Oct. 10, yes, that injunction request has been filed. Reasons listed are threefold:
1. That the language of the law itself says it only applies to actual convention nominees, not anybody indicating a desire to be nominated. And so it does say, right up at the top.
2. It's a violation of due process due to relative lack of time to prepare for it.
3. The key to the whole case: that filing fees for convention parties are unconstitutional.

I'm not a constitutional law scholar, but, I think our plaintiffs have a very good chance of succeeding, since this is in federal court, on Article 1 alone. Were it in Tex-ass state court? Nuther story.

That said, I don't know if it was just time issues, or waiting for Abbott to name an official Secretary of State (Ruth Hughs) or some strategery that I don't know about that it was held for seven weeks.

Update, Oct. 18: Hughs has responded. And it's horrifically weak. She claims that 
1. The plaintiff's 1 is not true.
2. That nobody besides Greens and Libertarians have standing, arguably, to fight this (despite rulings to the contrary in other federal courts).
3. On plaintiffs' 3 et al, using language like "flout" is inflammatory and designed to be so.

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Update, Dec. 3: Late last month, the federal judge in the case had a perplexer. Contra Hughs' request,  he refused to dismiss. Contra the plaintiffs, he also refused to enjoin. (Yes, judge Roger Pitman a preliminary injunction may be extraordinary, but there's this thing called a calendar and a time frame and plaintiffs' request is based on Dec. 9.)

But, Libertarians just won an enjoinment in Harris County. (Why Greens, in what has long been considered their bastion in Texas, weren't part of this, I don't know.)

Updates, Jan. 12, 2020: The SoS's fight against that enjoinment is getting hearty discussion over at Ballot Access News. For the SoS advisory on HB 2504 mentioned by Jim Riley, it's here.

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In 2020, the challenged provisions require minor parties to obtain 83,717 valid signatures on paper nomination petitions in only 75 days.  Independent candidates for statewide office must obtain the same number in as few as 30 days, if there is a run-off primary for the office they seek. Independent candidates for president need to collect 89,692 valid signatures in just 69 days. 

The plaintiffs – Mark Miller, Michele Gangnes, Scott Copeland, Laura Palmer, Tom Kleven, Andy Prior, America’s Party of Texas, Constitution Party of Texas, Green Party of Texas and Libertarian Party of Texas – allege that the cost of obtaining the required signatures will exceed $600,000 in 2020, largely because Texas’s nomination petition procedure is obsolete.  Texas first adopted that procedure in 1905, and it has not been significantly updated or improved in the 114 years since. 

“Collecting signatures by hand is inherently time-consuming, labor-intensive and expensive,” Miller said, “and collecting 80,000-plus valid signatures in the limited time allowed under Texas law is all but impossible without spending hundreds of thousands of dollars to hire paid petition circulators.” 

By contrast, Texas guarantees ballot access to the two major parties by means of taxpayer-funded primary elections.  Texas has also adopted electronic procedures, at taxpayer expense, which minimize the burden of administering the major parties’ primary elections.

This connects indirectly to the part of the suit that is about this year's HB 2504. See below. Per David Bruce Collins, this suit had been in the works well before 2504 was passed, but that legislation both was the more than the last straw and the foisting of primary-related costs on convention-based "minor" parties also provided the final legal wedge that could help boost the chances of success.

The plaintiffs allege that Texas could reduce the burden and expense its statutory scheme imposes on independent candidates and minor parties by adopting electronic procedures for obtaining voters’ signatures.  In Arizona, for example, the Secretary of State has implemented an online platform that enables voters to sign nomination petitions from the comfort of their own homes (available at https://apps.azsos.gov/equal/).  Other jurisdictions enable voters to sign nomination petitions on portable electronic devices.  Such procedures automatically validate a signature, and thereby eliminate the need to collect more signatures than the requirement. 

“We filed this lawsuit to restore and protect the right of all Texas voters to cast their votes effectively for the candidates of their choice,” Miller said.  “As plaintiffs, we represent a wide range of political views, but one point on which we all agree is that every citizen has an equal right to participate in Texas’s elections.”

The plaintiffs are represented pro bono by the non-profit Center for Competitive Democracy (“CCD”) and Shearman and Sterling, LLP, a global law firm with 23 offices, including in Austin and Houston. 

“Texas’ burdensome ballot access requirements and obsolete procedures combine to create a financial barrier to entry that is insurmountable for non-wealthy candidates and parties,” said CCD attorney Oliver Hall.  “We think the federal courts will recognize that Supreme Court precedent prohibits Texas from limiting participation in its electoral process to those with financial means.”

“It is essential that voter choice not be limited only to those candidates able to overcome severely burdensome Texas election procedures,” said David Whittlesey, a partner in the Litigation practice based in Shearman & Sterling’s Austin office who is representing the plaintiffs. “This lawsuit seeks to secure a more open, competitive election process to give Texas voters more options at the ballot box.”

A ballot access bill introduced in the Texas House in 2017 (HB 3068) and 2019 (HB 4439) would have established constitutional requirements and procedures for independent candidates and minor parties, but it was not enacted.  Instead, in 2019 Texas enacted HB 2504, which imposes an additional filing fee or nomination petition requirement on individual nominees of minor parties, in addition to the nomination petition the parties must file.  The plaintiffs also challenge these new requirements.

Texas does, as the suit notes, allow nominating petitions as an alternative to filing fees. But, as noted above, this still has its own burdens, even if the petition signature process for a third-party nominee is lower than for a third party to get party-wide ballot access, or for an independent to qualify.

The Texas Libertarian Party had indicated it would sue over this, even before Abbott signed the bill into law. It's good that Greens, and other third parties, as well as individuals, are all on the same page on this. It's bogus, and I personally think bill sponsor Drew Springer (R-Muenster) knew it was bogus. Without the portion of the bill that went from one election to a five-election cycle for the 2 percent threshold for getting party-line ballot access, he had peddled this same bill in the previous two legislative cycles. I think he figured adding that, knowing it would help Greens, with the idea it might hurt Democrats, convinced some Republicans to sign on.

The plaintiffs assert claims for the violation of their rights to cast their votes effectively, to speak and associate for political purposes, and to the equal protection of law.  The lawsuit, captioned Miller v. Doe, No. 1:19-cv-00700, names the Secretary of State of Texas (presently a vacant office) and Deputy Secretary of State Jose A. Esparza as defendants in their official capacities, and seeks to enjoin the state from enforcing the challenged provisions.

Commenting further, specific to 2504? Drew first drew this up as an anti-Libertarian bill, in my opinion. Don't forget, that without the amendment of the five-election period for determining qualification for statewide ballot access, he had peddled the original bill in the previous two legislative sessions. And, it will be fun to see emails and other communications from the previous two Lege cycles related to this bill's predecessors get brought up in discovery.

I'm not sure why it passed, and what sausage-making led Springer to amend it this time. Maybe some Republicans who have faced general election challenges from Libertarians were worried about getting them too angry, in the previous two Legislatures. Maybe they figured the apparent anti-Democrat angle of lowering ballot access to make it easier for the Greens to get on and stay on made it more worth it. (I'd love to see if any of this comes out in the discovery process, of course.)