Sorry, Republicans. You were too late after all.
The Texas Supreme Court on Saturday rejected an attempt by Republicans to kick 44 Libertarians off the ballot in the November elections.
Several Republican Party candidates and organizations had sued to remove the Libertarians, arguing they did not pay filing fees — a new requirement for third parties under a law passed by the Legislature last year. But the Supreme Court dismissed the suit, finding that the Republicans missed the August 21 deadline to successfully boot people from the ballot.
“The available mechanism for seeking the Libertarians’ removal from the ballot for failure to pay the filing fee was a declaration of ineligibility,” the court wrote in a per curiam opinion. “But the deadline by which such a declaration can achieve the removal of candidates from the ballot has passed.”
[…]
“Although the result in this instance may be that candidates who failed to pay the required filing fee will nevertheless appear on the ballot, this Court cannot deviate from the text of the law by subjecting the Libertarian candidates’ applications to challenges not authorized by the Election Code,” the court wrote.
See here, here, and here for the background. Let me quote from the intro to the opinion, which was released on the Saturday evening of a holiday weekend, to give you the basic gist of it.
Several Republican Party candidates and organizations seek to prevent 44 Libertarian Party candidates from appearing on the 2020 general-election ballot due to the Libertarians’ failure to pay the filing fee required by section 141.041 of the Texas Election Code. The Republicans concede that the statutory deadline to have the Libertarians removed from the ballot using a declaration of ineligibility passed on August 21. See TEX. ELEC. CODE § 145.035. They claim a later deadline applies to their petition, which they describe as a challenge to the Libertarians’ ballot applications governed by the deadline in section 141.034.
For the reasons explained below, the Election Code does not authorize the requested relief. Because the Libertarian Party nominates candidates by convention rather than primary election, its candidates’ applications are governed by chapter 181 of the Election Code, not by chapter 141’s procedures for challenging ballot applications. See id. §§ 181.031–.034. The relators invoke deadlines governing challenges to “an application for a place on the ballot” under chapter 141, but Libertarian Party candidates do not file such applications. Instead, they file “an application for nomination by convention” under chapter 181, which is a statutorily separate type of application governed by a separate set of statutes. Id. The Election Code does not subject the Libertarian candidates’ applications for nomination by convention to the procedures and deadlines for ballot-application challenges on which the relators rely.
Although the result in this instance may be that candidates who failed to pay the required filing fee will nevertheless appear on the ballot, this Court cannot deviate from the text of the law by subjecting the Libertarian candidates’ applications to challenges not authorized by the Election Code. The Legislature established detailed rules for ballot access and for challenges to candidates, and courts must carefully apply these rules based on the statutory text chosen by the Legislature. The available mechanism for seeking the Libertarians’ removal from the ballot for failure to pay the filing fee was a declaration of ineligibility. However, the deadline by which such a declaration can achieve the removal of candidates from the ballot has passed. The Election Code does not permit the relators to bypass that deadline by belatedly challenging the Libertarians’ applications. The petition for writ of mandamus is denied.
In other words, the novel attempt to say they are not challenging the candidates’ eligibility, which the Republicans conceded was too late, but were challenging their applications. The Supreme Court says that the law the Republicans were citing for this challenge doesn’t apply, and as such they’re out of luck. They did say in a footnote on page three that the Green Party could have sought Supreme Court review of that Third Court of Appeals order that forced their candidates off the ballot, and that an Attorney General amicus brief that took no position on that question was filed and considered for this case. They don’t seem to be saying how such a motion for review might have been received, just that it could have been done.
The bulk of the opinion is a tour through the part of the Election Code that governs parties that nominate their candidates by convention instead of by primary election, and how the Legislature treats the two kind of nominating processes differently. I gave it only a quick scan, because life is short and it is a holiday weekend, but feel free to dive in if that’s your jam. I will say, unless the Libertarians win one of their lawsuits challenging the new statute that mandates a filing fee, which was the basis for all of this legal wrangling, both Rs and Ds will be sure to do this again in 2022, since it is clear that they can knock Libertarians and Greens who don’t pay that fee off the ballot. The Ls and Gs may not like this law, but it’s in effect until further notice, and they know what the price of not following it is. And I have to imagine that somewhere, someone inside the Republican Party is getting reamed out by someone else for not being as on the ball about this as the Democrats were. They had a path to get what they wanted, they just didn’t take it in time. From where I sit, they were caught flat-footed and were out-lawyered by the Dems. That’s gotta sting a little for them.
Actually, per your last paragraph, and per a note on the ruling, per Ballot Access News noting that Greens might get relief themselves from the filing fees, such a thing is not clear at all.
Feel free to update, or not, as you choose.
https://ballot-access.org/2020/09/05/texas-supreme-court-unanimously-votes-to-keep-libertarian-candidates-for-congress-and-state-office-on-the-ballot-even-if-they-didnt-pay-filing-fee/
Or, let me quote:
“1 This is not to suggest that the court of appeals’ decision to remove the Green Party candidates from the ballot is necessarily beyond review. On September 4, the Attorney General submitted an amicus letter supporting neither party. The Court considered that submission prior to issuing this decision. In its amicus letter, the Attorney General, on behalf of the Secretary of State, represents that “there is still time . . . for the Secretary of State to amend her certification” of the general election ballot. Letter at 8. Thus, there remains the possibility that a party could seek expedited relief in this Court from the court of appeals’ decision to remove Green Party candidates from the ballot.”
Did the Texas Supreme Court dismiss the suit? – No
DISMISS VS. DENY
Looks like the Tribune got this one wrong in a nontrivial detail.
While it makes sense to call this Supreme Court case “suit”, given that it was an original proceeding, i.e. a direct mandamus that does not challenge the actions of a lower-court judge, the SCOTX did not dismiss it, but denied mandamus relief on a determination that such relief was not authorized by the Election Code under the legal theory presented by the relators (ie, the bevy of Republican Candidates seeking high court mandamus relief against the Libertarians).
The distinction between DISMISS and DENY is important because the DENIAL of relief necessarily implies that the Supreme Court found that it had jurisdiction to entertain the Republican petitioners’ challenge in an Election Code Mandamus and rule on the merits of their legal arguments. Recall that they said they did NOT have such jurisdiction (or, to be more precise, that Election Code jurisdiction wasn’t properly invoked) in the GOP’s attempt to get the Supreme Court to order City of Houston, Mayor Turner, and the Houston First Corp. to cooperate in holding the in-person party convention at the George R Brown Convention Center. See In re Republican Party of Texas, No. 20-0525 (July 13, 2020). (“We agree with the State that “despite [the Party’s] troubling factual allegations,” its petition does not “properly invoke this Court’s mandamus authority [and] should be denied on that narrow basis.” Letter Br. at 3. Accordingly, we dismiss the petition for want of jurisdiction.”).
Only Justice Devine would have found jurisdiction then, and dissented accordingly.
So, while the Supremes like to foster the belief that their hands are tied by statute (and that they are merely abiding by the law), that claim sounds hollow, even when the statutory construction issue involves something as fundamental as their own jurisdiction. They could and should have noted jurisdiction in the GOP Convention case likewise (and denied the claim on the merits) or found a lack of mandamus jurisdiction in both cases.
ME RUNNING TOO
Note that Chief Hecht and Justice Boyd recused recused themselves from the current Election Code mandamus, which is commendable, given that they are candidates in races involving two of the candidates affected by the proceeding.
That said, the better practice would be for the Court to note recusal/ disqualification immediately up front, rather than upon issuance of an opinion, esp. if the disposition is in the form of a per curiam opinion that cannot be attributed to any one of them or any grouping (and may not be unanimous).
Also, it shouldn’t be necessary for parties or (as here) real parties in interest to ask for recusal when the grounds of conflict are so obvious. (Boyd recused in the GOP Convention mandamus, and Hecht in the Meachum mandamus in No. 20-0630.). By contrast, no member recused in the AG’s Election Code Mandamus No. 20-0394 against the County Clerks on the vote-by-mail issue even though four of them are candidates in the COVID-afflicted forthcoming general election. See IN RE STATE OF TEXAS, 602 S.W.3d 549 (Tex. May 27, 2020)(orig. proc.)(Court’s opinion by Chief Hecht, plus three separate concurring opinions, though Bland’s is arguably a dissent in substance on one key statutory construction issue).
WHAT IS THE *REAL-WORLD* IMPACT OF THE DENIAL WITH OPINION (AS DISTINGUISHED FROM THE LEGAL “REALITY”)?
Some of the reporting on this case is to the effect that SCOTX sided with the Libertarians. Not so fast …. read the last page of the opinion. Whether it’s dicta or not, it’s ominous:
-quote
Finally, the relators ask, in the alternative, for a declaration of ineligibility under chapter 145, although they do not argue this relief would remove the challenged candidates from the ballot at this time. We agree with the dissenting justice in the related court of appeals litigation, who concluded that a suit to have a candidate declared ineligible is not mooted merely because such a declaration will not result in removal from the general-election ballot. In re Nat’l Republican
Congressional Comm., 2020 WL 5100110, at *3 (Rose, C.J., dissenting). The Election Code explicitly contemplates declarations of ineligibility after the deadline for removing candidates from the ballot. TEX. ELEC. CODE § 145.003(b), (d), (g). One concrete, legal effect of such a declaration is to prevent the ineligible candidate from taking office should he win the election. Id. § 145.005(b). Although the relators’ request for a declaration of ineligibility is not moot, we decline to decide it here so as not to delay a decision on the principal question presented. Should the relators wish to continue seeking a declaration of ineligibility, they may do so in an appropriate venue.
The petition for writ of mandamus is denied.
OPINION DELIVERED: September 5, 2020
-unquote
The referenced Jeff Rose dissent can be found here (following below the Austin COA panel majority opinion):
https://scholar.google.co.uk/scholar_case?case=13394491680992999811&hl=en&as_sdt=6,44
In re the National Republican Congressional Committee and Van Taylor,
In re Republican Party of Travis County, Texas, Nos. 03-20-00421-CV, 03-20-00422-CV (Aug. 25, 2020)
BOTTOM LINE: DIFFERENT SORT OF GRAVEYARD VOTING?
So the Libertarians who did not pay the filing fees or meet the alternative requirement are still ineligible and a remedy can be invoked later. In other words, missing the deadline did not result in waiver of an alternative way to thwart the third party candidates, albeit after the elections.
Unless the requirement is declared unconstitutional or something like that (an appeal is currently pending in Houston COA under two separate appellate case numbers, No. 14-19-00969-CV and No. 14-20-00078-CV, motion to consolidate having been denied), voting for Libertarians would be like voting for deceased candidates who didn’t die in time to have their name removed from the ballot.
See Tex. Elec. Code § 145.035; see also id. § 145.039 (“If a candidate dies or is declared ineligible after the 74th day before election day, the candidate’s name shall be placed on the ballot.”).
Is Kibitzer mistaken in this macabre assessment?
I’ll add that you reference the other lawsuits, so it is possible that, per the final paragraph on the ruling, the Supremes could decide to cock-block both parties on the merits of the main case. But, until we get to that point …
Sadly, the federal lawsuit against HB 2504 and broader issues isn’t being heard until early next year. The wheels of justice grind exceedlingly slowly indeed.
Gadfly, as I noted in my penultimate paragraph:
“They did say in a footnote on page three that the Green Party could have sought Supreme Court review of that Third Court of Appeals order that forced their candidates off the ballot, and that an Attorney General amicus brief that took no position on that question was filed and considered for this case. They don’t seem to be saying how such a motion for review might have been received, just that it could have been done.”
So yes, I did say what you said.
Well, you referenced it, you didn’t quote it, and IMO you pulled back from that with your ultimate paragraph. You also put that, your interpretation, in past tense with “could have,” while the Supremes is in present and future tense, indicating they’ll still invite the possibility of action. That’s the way I read it. To quote, again.
“Thus, there remains the possibility that a party could seek expedited relief in this Court from the court of appeals’ decision to remove Green Party candidates from the ballot.”
Versus your “just that it could have been done.”
Texas Supremes are saying they’re still open for biz on this.
Now, per the ultimate paragraph of the actual ruling? Could be read as, when they get the appeal of the Dikeman case, they’ll make a final ruling against both Libertarians and Greens.
But, on the appeal of the case against the Greens a couple of weeks ago, not a past tense “could have been” but a present/future tense “could seek expedited relief.”
Back to my first comment.
Since it’s Sunday I’m going to limit my picogranular analysis of pinheads to dancing angels only.