NEW ORLEANS – The U.S. Court of Appeals for the Fifth Circuit has joined a lower federal court in finding that the constitutional rights of minor political parties and their candidates in Texas were not violated by numerous provisions of the Texas Election Code.
In a Sept. 10 memorandum opinion written by Fifth Circuit Judge Jennifer Walker Elrod, alongside colleague judges Jacques L. Wiener Jr. and Cory T. Wilson, handed down such an opinion in a case brought by Mark Miller, Scott Copeland, Laura Palmer, Tom Kleven, Andy Priorversus, America’s Party of Texas, Constitution Party of Texas, Green Party of Texas and the Libertarian Party of Texas versus Texas Secretary of State Jane Nelson and Texas Deputy Secretary of State Jose A. Esparza.
Elrod explained that the Texas Election Code requires candidates to fulfill certain requirements to be listed on Texas ballots. Plaintiffs–appellees allege that the challenged provisions violate the First and Fourteenth Amendments because, when applied in combination with one another, they impose severe and unequal burdens on “non-wealthy Independents and Minor Parties.”
Elrod continued that the Code provides three ways for a candidate to obtain a place on the statewide general-election ballot: (1) Winning a primary election; (2) Receiving a nomination from a political party that nominates by convention and qualifies for ballot access; or (3) Submitting a nominating petition signed by the required number of voters.
However, the America’s Party, Constitution Party, Green Party and Libertarian Party contended that these requirements violate their constitutional rights under the First and Fourteenth Amendments to the U.S. Constitution.
The plaintiffs argued that (1) The number of signatures required to petition under the Texas Election Code; (2) The cost of obtaining signatures; (3) The time constraints on petitioning; (4) The restrictive petitioning procedures; and (5) Section 141.041, which was enacted in 2019 and is now codified at section 181.0311, are collectively violative of their rights.
“Plaintiffs–appellees filed this lawsuit pursuant to 42 U.S.C. Section 1983, alleging that the challenged provisions of the Texas Election Code are unconstitutional as applied to them when applied in combination with one another. They then filed a motion for a preliminary injunction, which the district court denied. In the same order, the district court also denied defendants’ motion to dismiss. The parties filed cross-motions for summary judgment. The District Court granted in part and denied in part each party’s motion. Specifically, the District Court held that all of plaintiffs–appellees’ challenges failed except for one. The District Court agreed with plaintiffs–appellees that the provisions of Texas Election Code Chapter 141 that mandate that any candidate who is required to submit a petition in support of their candidacy obtain and submit the requisite number of voter signatures in hardcopy are unconstitutional,” Elrod stated.
“It reasoned that the ballot-access petition requirements place an unequal burden on plaintiffs–appellees because ‘they cannot use electronic methods for petitioning whereas Texas allows Major Parties to use electronic methods as part of their procedures for accessing the ballot. Accordingly, the District Court enjoined defendants–appellants from enforcing any provision of Chapters 141, 142, 162, 181, or 202 of the Texas Election Code insofar as any such provision imposes an unequal burden on plaintiffs by imposing a paper-petitioning process. Defendants–appellants appealed. Without objection from plaintiffs–appellees, the District Court entered an order staying its injunction. Plaintiffs–appellees then filed notice of their cross-appeal.”
Elrod said that since “plaintiffs–appellees have failed to prove that the challenged provisions impose severe burdens on them, when considered individually or in combination with one another, and because the regulations are justified by legitimate state interests, we uphold the constitutionality of all challenged provisions as applied to plaintiffs–appellees.”
“As the District Court correctly observed in its order, the Libertarian Party and Green Party of Texas have surmounted the requirement to secure ballot access consistently for several years. Thus, they have not shown that the burden is unduly restrictive as applied to them. In addition, the remaining plaintiffs have not shown that the numerical signature requirement unconstitutionally burdens their parties or voters. The Constitution Party of Texas and America’s Party of Texas have about 130 members and 10 members, respectively. Thus, neither Minor Party can credibly claim to have ‘a significant, measurable quantum of community support,’ which a state is within its constitutional bounds to require for ballot access,” Elrod stated.
“Instead, the evidence suggests that the requirement does no more than ‘implicitly recognize the potential fluidity of American political life.’ And the mere fact that a state’s system ‘creates barriers…tending to limit the field of candidates from which voters might choose does not of itself compel close scrutiny.’ Indeed, Texas’s numerical signature requirement is justified by the state’s legitimate state interest in ‘assuring itself that the candidate is a serious contender, truly independent, and with a satisfactory level of community support,’ before listing that candidate on the ballot. Accordingly, we uphold the requirement as constitutional as applied to plaintiffs–appellees.”
While the plaintiffs–appellees also argued that the challenged provisions are unduly burdensome because, practically speaking, they make it so that Minor Party and Independents must hire professional petition circulators to collect an adequate number of signatures to obtain ballot access through the petitioning process – the Fifth Circuit found that the plaintiffs-appellees did not show such a burden to be consequential.
“As the District Court explained in its order, ‘the evidence in this case does not show that the State is impermissibly conditioning plaintiffs’ participation in the electoral process on their financial status. Once again, the evidence reflects that the Libertarian and Green Parties of Texas have ballot access, and the remaining plaintiffs fail to establish that they have been impacted by the alleged burden, even if we were to hold that the burden is severe. Plaintiffs–appellees further argue that the provisions of the Texas Election Code that place time constraints on when Independents or Minor Parties can collect signatures for petitions are unconstitutionally burdensome. It is true that the Texas Election Code places more stringent time constraints on candidates seeking to access the ballot through the petitioning process than any other state,” Elrod stated.
“Nevertheless, plaintiffs–appellees’ claim that this is severely burdensome as applied to them fails for the same reason that their claims concerning the number of signatures required and the costs of obtaining signatures fail. As the District Court adeptly held, plaintiffs–appellees have failed ‘to present adequate evidence that the time constraints burden them. Instead, [they] simply argue that the time period remains fixed while the number of required signatures increases with each election cycle.’ Such evidence is not sufficient to establish a severe burden on plaintiffs–appellees.”
The Fifth Circuit also disagreed with the other arguments of the plaintiffs-appellees and found they also lacked merit – specifically, their argument that “the lack of electronic petitioning methods available to Minor Party and Independents render Texas’s requirement that petitions be completed on paper unconstitutional.”
“While Major Parties are allowed to use electronic methods during the Primary Election process, all candidates who participate in the petitioning process are required to obtain their petition signatures through wet-ink/hard-copy signatures. And as confirmed at oral argument, all candidates, regardless of party affiliation, have the opportunity to file applications for ballot access and the accompanying petitions electronically under Chapter 141. In other words, the paper-petitioning requirements are the same for all candidates who elect to obtain ballot access through the petitioning method,” Elrod said.
“Under the mistaken impression that only Major Parties could file applications and petitions electronically, the District Court found for the plaintiffs–appellees on this equal protection claim. But because this is not the case, we reverse the District Court’s holding that the electronic petitioning requirement is unconstitutional.”
U.S. Court of Appeals for the Fifth Circuit case 23-50537
U.S. District Court for the Western District of Texas case 1:19-cv-00700
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com