Austin American-Statesman: Texas Supreme Court rejects GOP bid to kick 44 Libertarians off ballot

Whitney Bilyeu

Texas LP chair Whitney Bilyeu

From the Austin American-Statesman on September 6, 2020:

The Texas Supreme Court rejected a GOP attempt to remove 44 Libertarian candidates from the November ballot, saying the Republicans waited too long to challenge their opponents’ eligibility.

A long list of Republican candidates, joined by GOP organizations, argued that the Libertarians were ineligible to appear on the ballot because they did not pay a new filing fee or collect the required petition signatures to avoid the fee.

But the all-Republican Supreme Court said the deadline to challenge candidate eligibility was Aug. 21, while the GOP challenge wasn’t filed at the state’s highest civil court until Aug. 26.

“The Election Code does not permit the (GOP) to bypass that deadline by belatedly challenging the Libertarians’ applications,” the court said in an unsigned opinion delivered Saturday evening.

Chief Justice Nathan Hecht and Justice Jeff Boyd, whose Libertarian opponents were challenged by party officials, did not take part in the decision, the court said.

Democrats had successfully sued to remove three Green Party candidates from the ballot for failure to pay the filing fee, winning Aug. 19 at the Austin-based 3rd Court of Appeals.

The following day, Republican candidates and organizations contacted Libertarian Party leaders to demand that dozens of candidates be declared ineligible for failure to pay a filing fee as required by a state law passed last year.

The Libertarians refused that and follow-up demands, the last delivered Aug. 25, according to GOP legal briefs.

The GOP challenge, which initially targeted 41 Libertarians but was later increased to 44, argued that although the deadline to challenge candidate eligibility had passed, the deadline to challenge an improper candidate application is Sept. 18, when ballots are mailed to members of the military serving overseas.

The GOP urged the Supreme Court to act quickly, however, acknowledging that the Texas secretary of state’s office had already begun arranging to print and distribute the November ballots.

In a Friday filing, Attorney General Ken Paxton, speaking on behalf of Secretary of State Ruth Hughs, told the court that the Republican interpretation of state law on deadlines was correct and argued that the court could order the Libertarians to be removed from the ballot for filing an improper candidate application.

The Supreme Court disagreed, ruling that the Republicans and Paxton were looking at the wrong section of the Election Code.

Libertarians candidates, who are nominated at a party convention instead of a primary election, do not file candidate applications that can be challenged at this late date, the court said.

Instead, Libertarians file an “application for nomination by convention” — and those are subject to a different set of rules and deadlines, the court said.

Whitney Bilyeu, chair of the Libertarian Party of Texas, praised the court for “batting away the desperate Republican attempt.”

“They were trying a last-ditch effort to eliminate competition and limit the choices for voters,” Bilyeu said Saturday.

Libertarians are generally seen as receiving votes that would otherwise go to Republicans, while Green Party candidates do the same for Democrats.

Bilyeu said the real fight is taking place in federal court, where the party is challenging the candidate filing fee as unconstitutional, and in state court, where a separate challenge by Libertarian candidates is pending at the 14th Court of Appeals.

The state challenge resulted in a District Court order finding the fee unconstitutional, but that ruling is on hold while the appeal continues.

The lawyer in that case, Kathie Glass, the Libertarian candidate for governor in 2010 and 2014, said the law passed in 2019 “is not just unconstitutional, it’s impractical and unworkable.”

“The Democrats very cleverly seized on it to get rid of their Green Party opponents,” said Glass, who practices law under her maiden name, Katherine Youngblood.

“The Republicans were scrambling to try and catch up,” she said. “They tried this Hail Mary, and the Supreme Court did the right thing.”

Before the Legislature passed House Bill 2504 in 2019, political parties that choose candidates at a convention — such as the Green and Libertarian parties — did not have to pay filing fees like Republicans and Democrats.

Now, candidates of all parties must pay a fee or collect petition signatures, including $5,000 or 5,000 signatures to run for U.S. Senate or $3,125 or 500 signatures for the U.S. House.

More coverage at Ballot Access News.

Click here to see the 2020 Libertarian Party candidates.