Faas v. Cascos

• Decision Date: 05 December 2016
• Docket Number: CIVIL ACTION NO. H–16–1299
• Citation: 225 F.Supp.3d 604
• Parties: Souraya FAAS and Leonard Stanley Chaikind, Plaintiffs, v. Carlos CASCOS (In His Official Capacity as the Secretary of the State of Texas) and the State of Texas, Defendants.
• Court: U.S. District Court — Southern District of Texas

225 F.Supp.3d 604

Souraya FAAS and Leonard Stanley Chaikind, Plaintiffs,

v.Carlos CASCOS (In His Official Capacity as the Secretary of the State of Texas) and the State of Texas, Defendants.

CIVIL ACTION NO. H–16–1299

United States District Court, S.D. Texas, Houston Division.

Signed December 5, 2016

Vivian Erena Restrepo, Attorney at Law, Miami, FL, Kenneth Royce Barrett, KBR Law, Houston, TX, for Plaintiffs.

Maria Amelia Calaf, Office of the Attorney General of Texas, Austin, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

SIM LAKE, UNITED STATES DISTRICT JUDGE

Pending before the court is Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint and Application for Declaratory and Injunctive Relief (Docket Entry No. 23). For the reasons stated below, Defendants' motion will be granted.

I. Factual and Procedural Background

Plaintiff Souraya Faas is a declared independent candidate for the office of President of the United States.¹ Plaintiff Leonard Stanley Chaikind is a resident of Texas who wanted to vote for Faas in the 2016 election. Plaintiffs brought suit against defendant Carlos Cascos in his official capacity as Secretary of the State of Texas and against the State of Texas, claiming that portions of the Texas Election Code ("the Code") violate federal and state law. Specifically, Plaintiffs claim that §§ 141.031(a)(4)(K), 146.025(a)(1), 192.032(a), (b)(1)(B), (b)(3)(A), (b)(3)(B), (c), (d), (f), (g), 192.033(a), and 192.034(a) of the Code are unconstitutional and illegal, either facially or as applied to Plaintiffs.² Plaintiffs claim that the statutes "violate ... U.S. Const. Art. II § 1, cl. 4 [;] the First and Fourteenth Amendments to the United States Constitution[;] Title 42 United States Code, § 1983 [;] and Sections 3, 3a, and 8 of Article 1 of The Texas Constitution."³

The challenged portions of the Code read as follows:

• 141.031(a)(4)(K): "A candidate's application for a place on the ballot that is required by this code must" include the statement: "I, __________, of _______ County, Texas, being a candidate for the office of ________, swear that I will support and defend the constitution and laws of the United States and of the State of Texas"

• 146.025(a)(1): "Except as otherwise provided by this code, a declaration of write-in candidacy: (1) must be filed not later than 5 p.m. of the 78th day before general election day"

• 192.032:

(a) To be entitled to a place on the general election ballot, an independent candidate for president of the United States must make an application for a place on the ballot.

(b) An application must:

(1) comply with Section 141.031, except that:

(B) the application must contain the applicable information required by Section 141.031(a)(4) with respect to both the presidential candidate and the running mate;

(3) be accompanied by:

(A) a petition that satisfies the requirements prescribed by Section 141.062; and

(B) written statements signed by the vice-presidential candidate and each of the presidential elector candidates indicating that each of them consents to be a candidate.

(c) The application must be filed with the secretary of state not later than the second Monday in May of the presidential election year.

(d) The minimum number of signatures that must appear on the petition is one percent of the total vote received in the state by all candidates for president in the most recent presidential general election.

(f) The following statement must appear at the top of each page of the petition: "I did not vote this year in a presidential primary election."

(g) A signature on the petition is invalid if the signer:

(1) signs the petition on or before the date of the presidential primary election in the presidential election year; or

(2) voted in a presidential primary election during the presidential election year.

• 192.033(a): "Except as provided by Subsection (c), the secretary of state shall certify in writing for placement on the general election ballot the names of the candidates for president and vice-president who are entitled to have their names placed on the ballot."

• 192.034(a): "The names of a presidential candidate and the candidate's running mate shall be placed on the ballot as one race."

Plaintiffs claim that the requirements discriminate against and place "an undue, unreasonable, and unjustified burden on independent presidential candidates."⁴ Plaintiffs claim that earlier deadlines for independent candidates than party-affiliated candidates are discriminatory. Plaintiffs allege that the petition signature requirement, limited petitioning time, and early petition deadline prevented Faas from qualifying for the ballot, thus preventing Texans from voting for her and effectively diluting votes cast for Faas in other states.

Plaintiffs ask that the court declare that the challenged sections of the Election Code are illegal and unconstitutional facially or as applied. Plaintiffs ask that the court enter preliminary and permanent injunctions and writs of prohibition and mandamus preventing enforcement. Plaintiffs also seek orders placing Faas' name, that of her Vice Presidential running mate, should she name one, and those of her electors, on the Texas ballot for the General Election in 2016. In the alternative, Faas asks that she be allowed access to the ballot as a write-in candidate without naming a running mate. Finally, Faas seeks attorney's fees pursuant to the Civil Rights Attorney's Fees and Awards Act of 1976, 42 U.S.C. § 1988, and any other relief to which she may be entitled.

Defendants argue that the statutory scheme of the Texas Election Code as applied to independent candidates has been upheld despite constitutional challenges at all levels of review. Defendants contend that Plaintiffs therefore have no legally cognizable claim.

II. Analysis

A. Mootness

"The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Steffel v. Thompson , 415 U.S. 452, 94 S.Ct. 1209, 1216 n.10, 39 L.Ed.2d 505 (1974) (citing cases). The motion and related filings before the court were submitted before the 2016 general election and do not address the issue of mootness. But the court must nevertheless determine whether it has continuing jurisdiction. "[A] request for injunctive relief generally becomes moot upon the happening of the event sought to be enjoined." Harris v. City of Houston , 151 F.3d 186, 189 (5th Cir. 1998). The 2016 election is a fait accompli . Any injunctive relief sought by Plaintiffs with respect to that event, including ballot placement, is therefore no longer available.

Claims pertaining to election laws, however, often fall within an exception to the mootness doctrine for the class of controversies capable of repetition, yet evading review. Kucinich v. Texas Democratic Party , 563 F.3d 161, 164 (5th Cir. 2009) (citations and internal quotation marks omitted). The United States Supreme Court has decided election cases even when the plaintiffs failed to allege that they would be governed by the same flawed law in the next election. See Anderson v. Celebrezze , 460 U.S. 780, 103 S.Ct. 1564, 1567 n.3, 75 L.Ed.2d 547 (1983) ; Storer v. Brown , 415 U.S. 724, 94 S.Ct. 1274, 1282 n.8, 39 L.Ed.2d 714 (1974) ; Rosario v. Rockefeller , 410 U.S. 752, 93 S.Ct. 1245, 1249 n.5, 36 L.Ed.2d 1 (1973) ; Dunn v. Blumstein , 405 U.S. 330, 92 S.Ct. 995, 998 n.2, 31 L.Ed.2d 274, (1972). Plaintiffs' constitutional challenges to the Code and request for permanent injunction for "all subsequent Texas General Elections"⁵ therefore constitute a live dispute.

B. Applicable Law

1. Rule 12 (b) (6)

A Rule 12(b)(6) motion tests the formal sufficiency of the pleadings and is "appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim." Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom. Cloud v. United States , 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002). To defeat a motion to dismiss a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The court generally is not to look beyond the pleadings in deciding a motion to dismiss. Spivey v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999). The court does not "strain to find inferences favorable to the plaintiffs" or "accept conclusory allegations, unwarranted deductions, or legal conclusions." Southland Securities Corp. v. INSpire Ins. Solutions. Inc. , 365 F.3d 353, 361 (5th Cir. 2004) (internal quotation marks and citations omitted). "[C]ourts are required to dismiss, pursuant to [Rule 12(b)(6) ], claims based on invalid legal theories, even though they may be otherwise well-pleaded." Flynn v. State Farm Fire and Casualty Insurance Co. (Texas) , 605 F.Supp.2d 811, 820 (W.D. Tex. 2009) (citing Neitzke v. Williams , 490 U.S. 319, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989) ).

2. Constitutional Violations

Plaintiffs allege violations of the First and Fourteenth Amendments and their parallels in the Texas Constitution. The Texas Supreme Court has held that " ‘the federal analytical approach applies to equal protection challenges under the Texas Constitution.’ " Lindquist v. City of Pasadena Texas , 669 F.3d 225, 233 (5th Cir. 2012) (citing Bell v. Low Income Women of Texas , 95 S.W.3d 253, 266 (Tex. 2002)). When it comes to free speech, "unless a party can show through the text, history, and purpose of article I, section 8, that the state constitution affords more protections than the First Amendment in regard to that case, courts should assume that free speech protections are the same under both constitutions." Democracy Coalition v. City of Austin , 141 S.W.3d 282, 297 (Tex. App.–Austin 2004, no pet.). Because Plaintiffs do not attempt to differentiate state from federal constitutional protections concerning ballot-access provisions, their claims will be...