Libertarian Party of Texas v. Fainter, 84-2446

• Citation: 741 F.2d 728
• Decision Date: 31 August 1984
• Docket Number: No. 84-2446,84-2446
• Parties: The LIBERTARIAN PARTY OF TEXAS, et al., Plaintiffs-Appellants, v. John W. FAINTER, Jr., Secretary of State of Texas, and Anita Rodeheaver, County Clerk of Harris County, Texas, Defendants-Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 728

741 F.2d 728

The LIBERTARIAN PARTY OF TEXAS, et al., Plaintiffs-Appellants, v. John W. FAINTER, Jr., Secretary of State of Texas, and Anita

Rodeheaver, County Clerk of Harris County, Texas,

Defendants-Appellees.

No. 84-2446

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 31, 1984.

Opinion on Denial of Rehearing Sept. 21, 1984.

Boanerges & Yaussy, Laura B. Yaussy, James Boanerges, Houston, Tex., for plaintiffs-appellants.

Jim Mattox, Atty. Gen., David R. Richards, Robert L. Lemens, Asst. Attys. Gen., Austin, Tex., for defendants-appellees.

Roderick Q. Lawrence, Houston, Tex., for Rodeheaver.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, JOHNSON, and DAVIS, Circuit Judges.

PER CURIAM:

I.

In July 1984 several members of the Libertarian Party of Texas (the Libertarians) filed this suit challenging the constitutionality of two provisions of the Texas statutory scheme prescribing the requirements a political party must meet in order to have the names of its candidates printed In this suit, the Libertarians challenge two aspects of this scheme. First, they allege that the state's requirement that a party poll more than two percent of the votes in the governor's election is arbitrary, and the fact that Libertarian candidates polled over two percent in two other statewide races demonstrates that they have sufficient support to satisfy the state's interest in insuring that only serious candidates appear on the ballot. Second, they contend that the requirement that the signatures on the petitions required by Art. 13.45(2) be accompanied by voter registration numbers is not necessary to serve any compelling interest of the state, and is so burdensome that it prevented them collecting the number of signatures necessary to have their candidates placed on the ballot. After an evidentiary hearing, the district court denied the Libertarian's request for a preliminary injunction. Since the ballots for the November general election must be finalized by September 12, we granted expedited review. We now affirm.

on the general election ballot. Under Texas Election Code Annotated Art. 13.45(1) (Vernon's Supp.1984), any political party which receives more than two percent of the total number of votes cast in the last Texas gubernatorial election may have its candidates printed on the ballot after holding either a primary election or nominating conventions. One method by which a party receiving less than two percent of the total vote in the last governor's election may have its candidates printed on the ballot is to amass petitions containing signatures representing at least one percent of the total number of votes in the last governor's election. The petitions must include the address and voter registration number of each signatory, and may not be signed by any voter who has participated in another party's primary or nominating convention. Id. Sec. 13.45(2).

II.

The prerequisites for preliminary injunctive relief are long-established in this circuit: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest. Canal Authority of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). In this case the Libertarians have not shown a substantial likelihood that they will prevail on the merits, and so do not clear the hurdle of the first requirement.

The complexities of constitutional analysis of ballot access regulations are set out at exhaustive length in Dart v. Brown, 717 F.2d 1491 (5th Cir.1983), and this scholarship need not be duplicated in this opinion. The statutory scheme in question here was approved by the United States Supreme Court in American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), and it has not been changed in any respect material to this case since that time. ¹ The Libertarians argue that the elements of the Texas scheme that they now raise were not before the Supreme Court in American Party and therefore that case cannot be considered as conclusive of their constitutionality. With regard to the Libertarian's contention that use of vote percentages in the governor's race alone to determine ballot access is unconstitutional, we disagree. American Party specifically states that the Texas requirement of one percent of the total vote for governor on ballot petitions "falls within the outer boundaries of support the state may require before according political parties ballot position." 415 U.S. at 783, 94 S.Ct. at 1307, 39 L.Ed.2d at 761. The Court was doubtless aware that Texas held elections for statewide offices other...