Bilyeu v. Scott

• Docket Number: 1:21-CV-1089-RP
• Decision Date: 01 March 2022
• Parties: WHITNEY BILYEU, individually and as Chair of the Libertarian Party of Texas; MARK ASH; STEPHANIE BERLIN; JOE BURNES; ARTHUR DIBIANCA; KEVIN HALE; DESARAE LINDSEY; ARTHUR THOMAS IV; MARK TIPPETTS; and LIBERTARIAN PARTY OF TEXAS, Plaintiffs, v. JOHN B. SCOTT, in his official capacity as the Secretary of State of the State of Texas, and JOSE A. “JOE” ESPARZA, in his official capacity as the Deputy Secretary of State of the State of Texas, Defendants.
• Court: United States District Courts. 5th Circuit. Western District of Texas

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WHITNEY BILYEU, individually and as Chair of the Libertarian Party of Texas; MARK ASH; STEPHANIE BERLIN; JOE BURNES; ARTHUR DIBIANCA; KEVIN HALE; DESARAE LINDSEY; ARTHUR THOMAS IV; MARK TIPPETTS; and LIBERTARIAN PARTY OF TEXAS, Plaintiffs,
v.
JOHN B. SCOTT, in his official capacity as the Secretary of State of the State of Texas, and JOSE A. “JOE” ESPARZA, in his official capacity as the Deputy Secretary of State of the State of Texas, Defendants.

No. 1:21-CV-1089-RP

United States District Court, W.D. Texas, Austin Division

March 1, 2022

ORDER

ROBERT PITMAN UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiffs Whitney Bilyeu, Mark Ash, Stephanie Berlin, Joe Burnes, Arthur Dibianca, Kevin Hale, Desarae Lindsey, Arthur Thomas IV, Arthur Thomas IV, Mark Tippetts, and Libertarian Party of Texas's (“LPT”) (collectively “Plaintiffs”) Motion for a Preliminary Injunction (the “Motion”) filed January 14, 2022. (Dkt. 14). The parties conducted limited discovery and filed responsive briefing. (Dkts. 21, 27, 28, 30). The Court held a hearing on the Motion on February 24, 2022. (Prelim. Inj. Hr'g, Dkt. 32). Having considered the briefing, the arguments made at the hearing, the evidence, and the relevant law, the Court will deny the Motion.

I. BACKGROUND

This is a case concerning ballot access for third-party candidates. Plaintiffs, the LPT and several of its candidates and officers, challenge the filing fee or “petition in lieu of fee” requirements in Texas Election Code § 181.0311, enacted as SB 2093 on May 29, 2021. (Mot. Prelim. Inj., Dkt. 14,

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at 3). This section requires candidates of political parties that select their election slate through the convention process to pay a filing fee or submit a petition with the requisite number of signatures to stand for election at the party's convention. Plaintiffs claim the statute violates their First and Fourteenth Amendment rights to freedom of speech and association as well as equal protection and due process of law. (Id. at 2).

At the outset, it bears noting the hostility in the current landscape of the law toward third parties such as LPT. There is no question that laws of the sort at issue here have the effect of entrenching the two-party system in this state and across the country. States claim to benignly ask putative candidates to demonstrate a “modicum of support” in exchange for the privilege of appearing on the ballot. Jenness v. Fortson, 403 U.S. 431, 442 (1971). Yet the routes to demonstrating such support are severely constrained by laws like the one challenged here. Third parties thus continue to face significant barriers in their efforts to participate in the democratic process. That said, the Court is bound by the law of this Circuit and will, as it must, address the claims at hand under the law as it presently exists.

Under Texas law, a party can select its candidates for the general election in one of two ways: a convention or a primary. Tex. Elec. Code §§ 172.001-02; 181.002-03. The method a party uses is determined based on its level of support in the most recent gubernatorial election. Id. at § 172.001. If a party received twenty percent or more of the total votes cast, the party nominates its candidates by primary; if the party received between two and twenty percent of the vote, it may choose between a primary and a convention; if the party received less than two percent of the vote, it must nominate by convention. (Resp., Dkt. 21, at 3; see Tex. Elec. Code §§ 172.001-02; 181.002-03). The Supreme Court has upheld this divided process, affirming that the State does not “invidiously discriminate[] against the smaller parties by insisting that their nominations be by convention, rather than by primary election.” Am. Party of Texas v. White, 415 U.S. 767, 781, 794 (1974) The LPT candidate

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received less than two percent of the vote in the last gubernatorial election, and so the party must select its candidates for all offices by convention. (Resp., Dkt. 21, at 3). Under either the primary or convention process, candidates seeking nomination must submit an application to a party official and pay a filing fee or submit a petition in lieu of the fee to the state or locality, depending on the election. (Id.; see Tex. Elec. Code §§ 172.021; 172.024-25.; 181.03-33).

Section 181.0311 of the Texas Election Code governs candidates of convention parties. That section requires a candidate to either pay a filing fee or submit a petition in lieu of the fee to be considered at the party's nominating convention.^[1] The deadline to pay the filing fee or submit a petition for the 2022 election cycle was December 13, 2021. (Mot. Prelim. Inj., Dkt. 14, at 2). The first LPT convention will be held on March 8, 2022. Some of the candidates who seek to be considered at the convention, including Plaintiff Joe Burns, have not paid the filing fee in protest against the law. (Prelim. Inj. Hr'g, Dkt. 32). Other candidates, including the majority of the plaintiffs, have paid the filing fee but continue to oppose the law. (Id.). None of the candidates have opted to submit a petition in lieu of paying the fee, although that option remains open to all candidates. (Id.). Plaintiffs ask the Court to enjoin enforcement of § 181.0311 for the 2022 election cycle, in advance of their first convention. For the reasons given below, the Court will deny the Motion.

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II. STANDARD OF REVIEW

A preliminary injunction is an extraordinary remedy, and the decision to grant such relief is to be treated as the exception rather than the rule. Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The party seeking injunctive relief carries the burden of persuasion on all four requirements. PCI Transp. Inc. v. W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005). A movant cannot be granted a preliminary injunction unless it can establish that it will suffer irreparable harm without an injunction. Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001). Moreover, in the Fifth Circuit, “preliminary injunctions will be denied based on a failure to prove separately each of the four elements of the four-prong test for obtaining the injunction.” Gonannies, Inc. v. Goupair.Com, Inc., 464 F.Supp.2d 603, 608 (N.D. Tex. 2006).

III. DISCUSSION

Plaintiffs advance two arguments in support of their motion.^[2] First, they claim Defendants infringe their right to freedom of speech and association under the First Amendment by placing restrictions on who the LPT and its members may “consider” for election at its conventions. (Pls.' Br., Dkt. 27, at 4). Second, they assert that the law violates their right to equal protection under the Fourteenth Amendment by treating their filing fees differently than it treats filing fees from primary party candidates. (Id. at 6). Section 181.0311(c)-(d) requires filing fees paid by LPT candidates to be placed in the State's general fund, whereas filing fees paid by primary party candidates are used to

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reimburse those parties for expenses incurred in conducting their primaries. (Id.). Because the Court's analysis differs for each argument, the undersigned will address each in turn.

A. Restricting Who a Party May Consider for Nomination

Plaintiffs argue that the language of the statute, specifically the word “consider, ” dictates the content of a party's convention, and so infringes the party's speech and associational rights. (Pls.' Br., Dkt. 27, at 4). They assert the State has no compelling interest in regulating which candidates a party considers internally at its own convention. (Id. at 6). The statute intrudes too far into the LPT's inner workings, they claim, and constrains their rights to associate as a party and to speak when they do not meet the statute's requirements. (Id.). Therefore, they argue that the fee or petition requirement violates the First Amendment.

Courts evaluating the constitutionality of election laws employ the test announced by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780 (1983), as refined in Burdick v. Takushi, 504 U.S. 428 (1992).^[3] In Anderson, the Supreme Court instructed lower courts to evaluate elections laws by considering the “character and magnitude of the asserted injury” posed by the statutes to the plaintiff's asserted rights, and then weighing that against the interest put forward by the state. 460 U.S. at 788. In Burdick, the Court clarified that, when state regulation imposes severe restrictions on the rights of voters, the regulation must be narrowly drawn to advance a compelling government interest. 504 U.S. at 434. However,...