Court Holds That Texas's 118-Year-Old Petitioning Procedures Are Unconstitutionally Burdensome and Violate Equal Protection
In an order entered June 26, 2023, United States District Judge Robert Pitman of the Western District of Texas held Texas's ballot access procedures for independent and minor party candidates unconstitutional insofar as they require use of paper nomination petitions. Judge Pitman enjoined Texas Secretary of State Jane Nelson and Texas Deputy Secretary of State Jose A. Esparza from enforcing the procedures against a group of Texas voters, candidates and minor political parties who filed suit to challenge them in 2019.
The plaintiffs - Mark Miller, 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 - challenged the combined impact of several statutory provisions that independent and minor party candidates must follow to appear on Texas's ballot, including the large number of handwritten voter signatures they must submit on paper nomination petitions in a limited period of time.
The plaintiffs alleged that these provisions violate their First and Fourteenth Amendment rights by imposing discriminatory and severely burdensome requirements on independent and minor party candidates.
Judge Pitman agreed. His order states:
[T]he challenged provisions . of the Texas Election Code that regulate the paper nomination petition process . are unconstitutional as applied to Plaintiffs because (1) Defendants failed to show there is a connection between the burdens imposed by the paper nomination petition process and Defendants' stated interest to help avoid voter confusion, ballot overcrowding, and frivolous candidacies and (2) the paper nomination petition process, as opposed to an electronic process, imposes an unequal burden on Plaintiffs.
The order continues:
Defendants are ENJOINED from enforcing against Plaintiffs any provision of . the Texas Election Code that contemplates, relies upon, or requires paper nomination petitions or a paper nomination petitioning, verification, or submission process.
In 2020, the challenged provisions required minor parties to obtain 83,717 valid signatures on paper nomination petitions in only 75 days. Independent candidates for statewide office had to 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 needed to collect 89,692 valid signatures in just 69 days.
The plaintiffs submitted uncontested evidence demonstrating that the cost of obtaining the required signatures exceeded $600,000 in 2020, largely because Texas's nomination petition procedure is obsolete. Texas first adopted that procedure in 1905, and Defendants admitted that it has not been significantly updated or improved in the 118 years since.
"Collecting signatures by hand is inherently time-consuming, labor-intensive and expensive," Plaintiff Mark 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.
The plaintiffs' evidence demonstrated that Texas could reduce the burden and expense its statutory scheme imposes on independent and minor party candidates 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 athttps://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 Shearman & Sterling, LLP, a global law firm with 23 offices, including in Austin, Dallas, and Houston, and the Washington, D.C.-based non-profit Center for Competitive Democracy ("CCD")."We are pleased that Judge Pitman recognized the unconstitutional burdens that Texas's statutory scheme imposes on independent and minor party candidates," said David Whittlesey, a partner in the Litigation practice based in Shearman & Sterling's Austin office who is representing the plaintiffs. "The relief that he granted will help secure a more open, competitive election process that gives Texas voters more options at the ballot box."
"Judge Pitman correctly concluded that Texas's obsolete 118-year-old petitioning procedures create a financial barrier to entry that is insurmountable for non-wealthy candidates and parties," said CCD attorney Oliver Hall. "The relief he granted faithfully follows Supreme Court precedent that prohibits Texas from limiting participation in its electoral process to those with financial means."
The lawsuit, captionedMiller v. Nelson, No. 1:19-cv-00700, was filed on July 11, 2019 in the Austin Division of the Western District of Texas, and names the Secretary of State of Texas, currently Jane Nelson, and Deputy Secretary of State Jose A. Esparza as defendants in their official capacities.
Judge Pitman's June 26th order follows an order entered on October 4, 2022, which initially declared the challenged provisions unconstitutional and directed the parties to submit further briefing on an appropriate remedy.
About Shearman & Sterling:
With more than 700 lawyers in 23 offices, Shearman & Sterling is a global law firm that partners with corporations, major financial institutions, emerging growth companies, governments and state-owned enterprises to provide the legal and industry insight needed to navigate the challenges of today and achieve their ambitions of tomorrow. Our lawyers come from 60 countries and speak more than 65 languages.
About the Center for Competitive Democracy
The Center for Competitive Democracy was founded in 2005 to strengthen American democracy by increasing electoral competition. CCD works to identify and eliminate barriers to political participation and to secure free, open and competitive elections by fostering active civic engagement in the political process.
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