Updated: Aug 31, 2020
Two weeks ago US Senate Challenger MJ Hegar running against John Cornyn and former Democratic Governor Nominee Wendy Davis, now a US Congressional challenger to Chip Roy in CD 21 led a well planned, concerted, timed and strategic legal challenge knocking all of the Green Party statewide nominees off the 2020 ballot, as well as Davis' CD 21 Green Party competitor, himself a former Democratic Nominee for CD 21.
They did so ironically by weaponizing a Republican partisan law passed last year intended to reduce the number of Libertarians on the ballot, and add the Green Party, which had lost ballot status, back on, to shift the balance of the marginal votes against the Democrats.
The Republican led legislature passed this law after several high profile races in 2018 flipped, or, like my own for US Senate against Beto O'Rourke and Ted Cruz, came down to the wire in part because of the Libertarian Party candidates, and the blue wave threatens to tighten key Texas House and Congressional battleground races across Texas in 2020.
Hours after the Democratic legal success, in a stunning scoop by the Democrats, the Republicans tried to use the same argument in the same court against the Libertarian Party, but lost the ruling on the grounds they were too late, and because it wasn't the candidates themselves who sued.
The Democratic legal assault took advantage of the successful court challenge I launched along with a number of other Libertarian candidates and voters as co-plaintiffs in Harris County, with the former Libertarian Governor candidate Kathie Glass as lead counsel. That challenge led last December to a temporary injunction on both law and Texas constitutional grounds against the Secretary of State in the 11th District Court in Harris County barring them from enforcing the filing fees in the new law, and the Secretary of State's choice to demand the filing fees be paid not by nominees as the law stated, but by all 3rd candidates months ahead of time.
A brief history.
Last year in a not well publicized effort to blunt the Democratic blue wave in 2020, the Republican led legislature passed HB2504. HB2504 did two things. First, it reduced the threshold of voter percentage a political party in Texas needs to get in a statewide race to be on the ballot from 5% to 2%, and applied it with a 10 year lookback. Effectively this allowed the Green Party, which the Republicans expect to take votes from the Democrats and compete with the LP for protest votes, thereby blunting the blue wave, back on the ballot even though it had failed to qualify under the old law (the Libertarians had). Then, it added a second provision, adding a new ballot access filing fee for a general election ballot to parties who nominate by convention (by state law smaller parties are required to nominate candidates for office by a convention and cannot participate in a state subsidized primary like the Democratic and Republican Parties do). The intent and effect of this fee was to reduce the number of 3rd party candidates who file to run for office, largely to reduce the number of Libertarian candidates who in the Republican view, largely draw votes from Republican candidates. This is the first time party nominees have been taxed to be on a General Election Ballot. The Democrats fought this law hard.
Before our challenge, the Republican law was working, as LP candidates filings had been down almost 80% from prior years. On the back of the court ruling, LP placed almost 100 candidates in races, including in three Supreme Court races and almost every battleground Congressional and State House district in Texas.
What we challenged was really simple: nominees of any party should not pay a tax to be on the General Election Ballot, and you can't treat candidates of one party different than those of another in any case, nor can you interfere as the state in the internal privately funded nominating process of a party by adding taxes on their candidates. LP nominees had been impacting Texas races, even without winning, and despite that the typical LP nominee raised and spent less money than the new filing fee itself, including one nominee who in 2018 earned 1.6 mm Texas votes while spending < $5K. While the Republicans (and the Democrats in Davis) tried to argue the law equalized the situation between 3rd Party and Major party nominees, it in fact did the opposite. Unlike the primary filing fees paid by the Republican and Democratic candidates - which are paid to their own party - to be on the party's primary ballot for nomination (ostensibly to both reduce the number of primary candidates and defray part of the state funded primary costs), the HB2504 law required 3rd Party candidates to pay equivalent dollar amounts of fees directly to state or county coffers, and to do so to be on the general election ballot, which the Republicans and Democrats are not charged to be on - because of course, the 3rd Party conventions by law are privately funded, and the Republicans had zero desire to write an equal law that would effectively fund the party they were trying to impact.
Our trial court granted an injunction on Texas Constitutional and legal grounds on December 2, barring Harris County and the Texas Secretary of State from enforcing the filing fees, leading to an immediate and dramatic increase in candidate numbers.
As the court commented during the proceedings, why, if this was intended to be the same, does the money not go to same place, and why would the Republicans and Democrats get two state run elections for one price and the 3rd Parties one for the same price?
And why, if the state does not fund or help run the 3rd party convention like it does the primary, should it be able to interfere in who the convention delegates got to nominate?
And why, if the goal was to add fee on a 3rd Party general election nominee fee as the law clearly stated, was it charged by the Secretary of State to all candidates, not nominees, before the nominee was selected? Especially since the Libertarian rules state candidates, even if unchallenged, must always beat None of the Above, they don't automatically win if unopposed like in the Republican or Democratic primary. The Secretary of State and Attorney General have not had answers for these. It didn't help their case that they presented no evidence, and the petition form they had published as an alternative to fees was apparently not used by any Republican or Democratic nominees and so rife with errors and ambiguity that in front of the judge the General Counsel for the Secretary of State was unable to answer questions about how a Libertarian would have filled it out (it even still said primary not general on it), nor that in 2018 half of all races in Texas were unopposed by a major party.
Texas also has an extra Constitutional provision that the US Constitution does not, prohibiting Special Laws targeting a specific group, which this very likely is.
The Secretary of State, represented by the Attorney General's office, appealed our injunction, where it is has been waiting on appeal for 7 months since January at the 14th Court of Appeals.
That Appeals Court stayed the injunction after about 100 candidates (including 8 Green Party candidates who apparently heard about our injunction) had filed to run on the basis of the injunction. The Court stayed the enforcement of our injunction and delayed my trial until they ruled, putting it in something of a limbo and leaving the opening the Democrats took advantage of last week. We all thought that ruling would have happened months ago, but Covid intervened.
Here's where it gets interesting.
The Secretary of State, despite fighting hard against our challenge, quietly published all of the Green and Libertarian Party Nominees as "Candidate in General Election" alongside the Republican and Democratic counterparts. They appear to have taken the position that it is each party's job not theirs, to eliminate a nominee for eligibility, and apparently are planning on certifying all Nominees regardless of whether the fee we are fighting was paid by that Nominee, without waiting for the 14th Appeals Court to rule, unless a court told them not to. Essentially acting like they intend to follow our stayed TI, despite fighting it tooth and nail, but have not told us, let alone publicizing broadly that they intended to do so.
And here's where it gets strategic. Friday the Aug 21st was the last day by law a party could remove its own nominee from the general election ballot. Two days before that the Democrats sued not the Secretary of State, but the Green Party and its coChairs, in an emergency motion, asking the 3rd Court of Appeals, a different appeals court than ours, to order the Green Party Chairs themselves to remove their own key nominees, in a basically procedural move on the grounds that they had not paid the filing fee and since the Greens knew it, that meant the Greens were knowingly violating state law, which they claim is illegal. Notwithstanding that the law itself has been ruled as probably unconstitutional by a Texas court. The 3rd Court of Appeals on a party line vote of 2:1, ruled literally in hours in their favor, and the Green's appear to have declared their Railroad Commission, US Senate and CD 21 Nominees ineligible (as well as their Supreme Court Nominee, who had somehow also voted in the Democratic Primary, a big no no, and was therefore definitely ineligible), leaving them with no statewide nominees on the ballot.
Several Republican Party organizations, caught apparently flatfooted, immediately tried to do the same thing in the same court, to a selected list of dozens of Libertarian Nominees over the next couple of days citing that case, but by the time they did so, the court ruled they were too late, since the party can't remove its nominees after the Aug 21 second deadline, and accepted the Libertarian response that the Republican organizations who filed suit might not have standing. A group of Republicans led by Rep Briscoe Cain who helped pass the law subsequently filed a mandamus in the all Republican Texas Supreme Court trying to do a procedural end run, this time carefully ignoring and leaving out any mention of the underlying constitutional challenge or order, to the law they are trying to get an emergency order to enforce - or even the key point that they are only seeking this order because the Secretary of State itself, after aggressively fighting it, appears to be following our TI.
But it doesn't stop there. The Green Party literally showed up in court with no lawyer, the one Republican judge on the 3rd Court of Appeals panel dissented on both cases, on the grounds in the Green's case that the emergency standard had not been met, and then in the Libertarian case that it should be heard on the merits! (The 3rd Court has not actually reviewed, had a hearing, or ruled on the constitutionality or legality of the law itself like our trial court, just on the timing). I agree, after all, the only court who has actually reviewed the merits and facts of this law with competent counsel on both sides found it likely unconstitutional, my trial on the merits has been delayed 9 months now, with all this fighting over procedure. And we are quite confident that when we do get to trial and the delay tactics are over, that we will win, and the Republican legislature will have to find another way next year to use 3rd parties to impact the Democrats. Of course, since the subsequent final deadline of August 28th for the Secretary of State to certify nominees on the general election ballot has also passed, no matter what happens now, those Green nominees are off the 2020 ballot, and barring a Supreme Court ruling it looks like the Libertarians are on.
In addition, the entire Democratic case against Greens that the Republicans are now trying to rely on managed to completely misstate the facts, situation and law in my case, a cornerstone of their arguments, and once reviewed properly, is awfully shaky. However since the Greens did not have legal representation and did not appeal, these points never got made. Among other things they incorrectly stated in their filing that the Libertarian Party had tried in court to fight this law in Dikeman v Hughs, my case, and failed. In fact we won in the only two rulings that have happened in the 11th, oral arguments at the 14th clearly indicate even the Republican judges had concerns about portions of the law even though they haven't ruled, the Libertarian Party was not actually a party in my case at all and unlike Wendy Davis and Hegar claimed, our TI was in force when these candidates filed, has not been vacated or lost, just enforcement stayed until the 14th Court rules - and we STILL after the 14th Court rules on a TI now potentially moot for 2020 if the Secretary of State actually certifies the Libertarian Nominees, have to have our trial on the merits.
Net result, it looks like nearly 80 LP Nominees who have been left in limbo may be on the ballot after all based on our December victory barring last minute Supreme Court or rulings or another aggressive change by the Secretary of State - or at least the Republicans think they will be; the only Texas court that has actually reviewed the merits and ruled on the constitutionality of the law ruled it was likely unconstitutional; yet a group of Democratic power players who have been championing voter rights managed to get the Green Party to knock itself out of key races, and stole one on the Republicans using a Republican partisan law and Libertarian court challenge to do so.
You can't make this stuff up, reality is stranger than fiction.
Neal Dikeman is the Editor of the Texas Free Press, the lead plaintiff in Dikeman v Hughs, and former Libertarian Party of Texas Nominee for US Senate in 2018 challenging Ted Cruz along with Beto O'Rourke.