‘First they came for the Greens’: Duopoly attacks Texas Libertarians

From LP News | Vol. 50, Issue 3 | Quarter 3, 2020

By Bekah Congdon • LPHQ Development Associate

Bekah Congdon, LPHQ Development Associate

Bekah Congdon, LPHQ Development Associate

For anyone who has been around the Libertarian Party for more than one election cycle, you will be familiar with the fights — plural — we endure to be placed on the ballot. Long before we can start advertising on the radio or television, putting up signs and billboards, or reaching constituents directly, all of our resources and energy go into obtaining ballot access, and even after it is confirmed, we have to be ready to fight to keep it that way. The Libertarian Party of Texas has lived through this very recently.

In Texas, there is a deadline a certain number of days before a general election by which date political parties must submit their list of nominees to be placed on the ballot to the Secretary of State (SOS). In 2020, that date was August 21. The Libertarian Party and the Green Party are currently the only two alternatives to the Republicans and the Democrats to have ballot access in Texas. The Libertarian Party of Texas (LPTexas) submitted the majority of their candidates to the SOS’s office back in the spring, and the remaining candidates who were nominated at their early August state convention were submitted immediately following. With only a couple weeks before the ballots would be confirmed and printed, everything seemed on track, and candidates were busy campaigning and winning over voters.

On August 18, word came to certain LPTexas candidates from Green Party allies that a lawsuit had been filed against three Green Party candidates, demanding that they be removed from the ballot. The parties bringing this lawsuit were a collection of Democratic PACs, organizations and candidates, and they claimed that the named nominees should be removed because they had not paid a fee (more on that later). Those served with the lawsuit were informed that a response from them was due less than 24-hours later, and without hesitation, a hearing was scheduled. It took not even 10 minutes for the panel of three judges to grant the Democrats their request, and rule that those three candidates would no longer be listed on the November ballot. That one of the panel judges used to be the chair of the local Democratic Party was evidently not considered a conflict of interests.

In the 2019 legislative session in Texas, there were two major attempts to limit voter choice and hinder third-party ballot access. The first attempt failed, largely due to the efforts of Libertarian activists who testified, called, wrote letters, and caused the proposed bill to die on the House floor. The second attempt is where those fees come into the picture. A bill was passed by the Texas legislature with bipartisan support that imposed filing fees on third-party candidates. They argued that this was fair, as Republicans and Democrats have to pay fees. What they didn’t feel was worth clarifying is that their “fees” go into a special account for Democrats and Republicans to use to pay for their primaries. Every cent the old parties have to spend for their primary elections will be refunded to them, either from these fees, or by taxpayers once their fund is dry. For Libertarians and Greens though, these new fees would never be used for their benefit, but are instead paid directly to the SOS General Fund. Effectively, the Texas Legislature passed a poll tax on anyone but themselves. This move was swiftly challenged in court, and to this day the only ruling on that suit has been from a Harris County judge who granted a temporary injunction, removing the filing fees until the full argument is heard in court.

The ruling against the Green Party candidates showed that the temporary injunction was not guaranteed, and clearly signalled to Republicans that there may be another opportunity to remove Libertarians who they see as a threat to their monopoly in Texas. On Friday, August 21 (the deadline for parties to submit their nominees), a suit was filed against the Libertarian Party of Texas naming select Libertarian nominees that a group of Republican organizations sought to remove from the ballot. A response was demanded by Monday, August 24, and the writing seemed to be on the wall for this to go the same way as the Greens.

On August 2 at our state convention, I was elected as vice-chair of the Libertarian Party of Texas. My dear friend and the Libertarian National Committee Region 7 representative, Whitney Bilyeu, was elected as the chair. The two of us have been involved at all levels of the party for many years. We have watched LPTexas go from an unknown entity to a swelling political wave filling the old parties with discomfort, frustration, and fear. We are very proud of that, and we were not about to roll over and give up this fight.

Every waking moment from Friday afternoon to Monday morning, Whitney and I were on the phone with legal professionals hoping to find someone familiar enough with Texas election code to be able to help us. More than a few times we began to feel hopeless. Someone was suggested, but they weren’t confident enough to sign on. Another lawyer agreed to help us, but almost immediately that offer was rescinded and we were ghosted. We went into the morning of our response deadline armed with nothing more than a request for more time (we only had four business hours to contact lawyers after receiving the notice of the lawsuit). One more attorney’s name was suggested to us, and I believe we both went into the conversation prepared to be let down once more. However, it was immediately evident that there was something different about this one. Before we had to retell the story of how this all came about for the umpteenth time, he told us he had already reviewed the lawsuit, and the other two lawsuits currently involving LPTexas. He also pointed out several errors made by our Republican foes and confirmed suspicions we had that they were hoping to bully us to act before the court even got involved. The more we spoke, the more we knew we had found an ally. With legal counsel secured, we were granted a one-day extension, and our attorney filed our response Tuesday at 9 am.

About nine and a half hours later, we received a message. “We won!”

Anyone who has been around a while also knows that winning isn’t the most common outcome for Libertarians — but when we are victorious there is simply nothing sweeter.

Of course, victories don’t last forever, and our attorney quickly prepared us for the likely next attempt of the Republicans which came the following morning — filing the same suit with the Supreme Court of Texas. Republicans have held all state-wide positions in the state for a quarter-century, so all of the Texas Supreme Court justices are Republicans. We prepared our response, and again, we waited. I kept myself as busy as I could to prevent the pessimistic thought that we had used up our good fortune from creeping into my mind. I was sitting in my car in the driveway when the news broke, and I must have read the headline 50 times before believing it:

Texas Supreme Court rejects Republicans’ attempt to remove 44 Libertarians from the November ballot

My heart still skips when I read those words, and I am so thrilled and grateful to be fighting alongside liberty warriors who made this victory possible. Now I know that the duopoly will not stop here and that we have really only angered them — but even in this we can celebrate. If the Libertarian Party had not successfully navigated past requirements to stay on the ballot in Texas, the Republicans and Democrats wouldn’t have passed a law to make that even harder. If we weren’t gaining support and increasing our vote count year after year, we wouldn’t have old party candidates wanting to keep us out of “their” races. If we weren’t something to fear, they wouldn’t have taken us to the highest court in the state as a last attempt to keep Texans choosing between two failed options. We aren’t at the downhill slope yet, but for 49 years we have been pushing this boulder up the hill, strengthening our will and our resolve with every setback — no matter what, we have persevered. The Republicans in Texas have had their wins handed to them for about 30 years. If I was betting on which party was more prepared for a fight to the finish, my money is on the LP.

LPTexas has heart and willpower in spades. The duopoly has cash. Unfortunately, we need that too. You can support LPTexas in our ongoing legal battle (and the many more we know will follow).

Go to www.lptexas.org/legalfund to support us directly, or donate to all Libertarian Party legal battles at www.lp.org/legal.

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