Hughs v. Dikeman
| Decision Date | 27 October 2020 |
| Docket Number | NO. 14-19-00969-CV, NO. 14-20-00078-CV,14-19-00969-CV |
| Citation | 631 S.W.3d 362 |
| Parties | Ruth R. HUGHS, in Her Official Capacity as Secretary of State of the State of Texas, Appellant v. Neal DIKEMAN, Shawn Kelly, Roy Eriksen, Jared Wissel, Scott Ford, Billy Pierce, Christina Ford, Charlie Stevens, and Neko Antoniou, Appellees |
| Court | Texas Court of Appeals |
Cory Scanlon, Anne Marie Mackin, Austin, for Appellant.
Katherine S. Youngblood, Hockley, for Appellees.
Panel consists of Justices Christopher, Jewell, and Hassan.
SUBSTITUTE OPINION
We deny as moot the appellees' motion for en banc consideration. We withdraw our opinion dated September 8, 2020 and issue the following substitute opinion. Our disposition remains the same.
Neal Dikeman, Shawn Kelly, Roy Eriksen, Jared Wissel, Scott Ford, Billy Pierce, Christina Ford, Charlie Stevens, and Neko Antoniou (collectively, "Appellees") sued Ruth R. Hughs in her official capacity as Secretary of State of the State of Texas asserting claims and requesting injunctive relief in connection with Texas Election Code section 141.041 and its accompanying advisory. Section 141.041 requires political candidates nominated by the convention process to either pay a filing fee or submit a signature petition to appear on the general-election ballot and the related advisory sets the deadline to comply with these requirements. Appellees, as members of and candidates within Texas's Libertarian party, assert that these requirements unreasonably burden minor-party candidates and those that plan to vote for them.
The trial court granted Appellees' request for a temporary injunction and enjoined Hughs from enforcing section 141.041 and the related advisory. The trial court also denied Hughs's plea to the jurisdiction. Hughs filed separate appeals with respect to these decisions, which were consolidated into a single appeal.
For the reasons below, we affirm the trial court's temporary injunction in part as modified and reverse and remand in part. We conclude the trial court erred insofar as it (1) denied Hughs's plea to the jurisdiction with respect to Appellees' claim challenging the constitutionality of section 141.041 and (2) improperly enjoined the enforcement thereof. We further conclude the trial court (1) properly denied Hughs's plea to the jurisdiction with respect to Appellees' claim challenging the advisory and (2) did not abuse its discretion by temporarily enjoining the advisory's enforcement in part.
Under the Texas Election Code, a political party in Texas nominates its candidates for public office by either a primary or a convention. See Tex. Elec. Code Ann. ch. 171-74, 181-82. A political party whose candidate in the last gubernatorial election received at least 20% of the vote (a "major party") must nominate its general-election candidates through a primary election. Id. § 172.001. A party whose candidate in the last gubernatorial election received less than 2% of the vote (a "minor party") must nominate its general-election candidates through a convention. Id. §§ 172.001, .002, 181.003. Parties whose candidates in the most recent gubernatorial election received at least 2% but less than 20% of the total number of votes may nominate their general-election candidates through either a primary or a convention. Id. § 172.002(a).
To participate in a primary election, a major-party candidate must submit an application accompanied by either a filing fee or a signature petition. Id. § 172.021(a), (b). The amount of the filing fee or the number of required signatures varies depending on which office the candidate seeks. See id. §§ 172.024, .025. The filing fees are paid to either the county or the state chair of the major party with which the candidate wishes to run and are used to fund the primary election. See id. §§ 173.061-.063. Nominees selected through the primary process do not have to pay an additional filing fee or submit a second signature petition to guarantee their placement on the general-election ballot.
House Bill 2504 was signed into law in June 2019 and made two changes affecting minor-party candidates' access to the general-election ballot. See Act of May 20, 2019, 86th Leg., R.S., ch. 822, §§ 1-3, 2019 Tex. Gen. Laws (codified at Tex. Elec. Code Ann. §§ 141.041, 181.005(c) ). Before the passage of Bill 2504, minor parties had two avenues available to qualify their nominees for the general-election ballot:
See Act of May 13, 1985, 69th Leg., R.S., ch. 211, § 1, 1985 Tex. Gen. Laws 802, 996 (codified at Tex. Elec. Code Ann. § 181.005(a), (b) ). House Bill 2504 was codified in section 181.005(c), which modified the second option by lowering the threshold from 5% to 2%. See Tex. Elec. Code Ann. § 181.005(c).
House Bill 2504 was also codified in section 141.041, which requires "a candidate who is nominated by convention" to fulfill one of two requirements to guarantee that candidate's placement on the general-election ballot:
Id. § 141.041(a). The amount of the filing fee and the number of required signatures are the same as those required of major-party candidates seeking placement on the primary-election ballot. See id. §§ 141.041(b), (e), 172.024, 172.025. But whereas fees paid by major-party candidates are paid to the parties' state or county chairs (see id. §§ 173.061-.063), the fees from minor-party candidates are paid to the Secretary of State or the county judge and are credited to either the state or county general fund. See id. § 141.041(c), (d). Section 141.041 does not set a deadline for compliance but states that the Secretary of State "shall adopt rules as necessary to implement this section." Id. at (f).
On August 31, 2019, Hughs promulgated Election Advisory No. 2019-13 (the "Advisory"). Referencing House Bill 2504's enactment in section 181.005(c) — which lowered the minimum threshold for a party nominating by convention to guarantee its candidates a place on the general-election ballot — the Advisory states that both the Libertarian party and the Green party "met this threshold" and are entitled to have their candidates on Texas's 2020 general-election ballot. The Advisory also provides as follows with respect to section 141.041's filing fee/signature petition requirement for "a candidate who is nominated by convention":
Election Advisory No. 2019-13. Under Texas Election Code section 181.061, a party nominating by convention must hold its conventions in March and April of the election year.2 Id. § 181.061. Therefore, the deadline prescribed by the Advisory required these parties' candidates to submit their filing fee or signature petition approximately three months before the 2020 nominating conventions.
The Libertarian party's nominee in the most recent gubernatorial election received less than 20% of the vote; as permitted, it selects its general-election nominees through a convention. See id. §§ 172.002, 181.003. Accordingly, the Libertarian party's candidates are subject to section 141.041 and the Advisory's December 9, 2019 deadline for compliance with this section's requirements.
Appellees sued Hughs, Lina Hidalgo (in her official capacity as county judge of Harris County), and Diane Trautman (in her official capacity as county clerk of Harris County) asserting claims and requesting injunctive relief in connection with section 141.041 and the Advisory.3 Specifically, Appellees asserted that (1) section 141.041 violates the Texas Constitution, and (2) the Advisory conflicts with the Texas Election Code and the Texas Constitution.
The trial court held a hearing on Appellees' application for a temporary injunction in November 2019 and heard testimony from appellee Neal Dikeman. Dikeman discussed the burdens imposed by section 141.041 and the Advisory on minor-party candidates and those that plan to vote for them.
On December 2, 2019, the trial court signed an order granting a temporary injunction. In the section labeled "Findings", the trial court concluded that (1) section 141.041 constitutes an actual or threatened violation of the United States and Texas Constitutions; (2) evidence shows the Advisory conflicts with the Texas Election Code; and (3) evidence shows the Advisory implicates Appellees' rights under the United States and Texas Constitutions.4 In relevant part, the trial court's order states as follows:
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