Bilyeu v. Nelson

1

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. JANE NELSON, in her official capacity as the Secretary of State of the State of Texas, and JOSE A. 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

June 5, 2024

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants Jane Nelson and Jose A Esparza's^[1] (“Defendants”) Motion to Dismiss. (Dkt. 64). Plaintiffs Whitney Bilyeu, Mark Ash Stephanie Berlin, Joe Burnes, Arthur Dibianca, Kevin Hale Desarae Lindsey, Arthur Thomas IV, Mark Tippetts, and the Libertarian Party of Texas (“LPT”) (collectively “Plaintiffs”) filed a response, (Dkt. 67), and Defendants filed a reply, (Dkt. 68). Having considered the parties' submissions, the record, and the applicable law, the Court will grant in part and deny in part the motion.

I. BACKGROUND

A. The Challenged Statutes

In Texas, political parties that received at least 20 percent of the vote in the last gubernatorial election nominate their candidates by primary election. See Tex. Elec. Code § 172.001. For the last century, only the Democratic Party and Republican Party have qualified as “primary parties.” (Pls.' Resp., Dkt. 67, at 1). All other parties (i.e., “third parties”) must nominate their candidates through a convention and are subject to different nominating laws and requirements. (Id.).

To be entitled to a place on the primary election ballot, primary party candidates must make an application for a place on the ballot. Tex. Elec. Code § 172.021(a). As part of that process, primary party candidates are required to: (a) pay a filing fee; or (b) submit a nomination petition that complies with Texas Election Code § 141.062 and is signed by a specified number of eligible voters. See id. §§ 173.031-173.034. Those filing fees are paid to the primary party itself and are used to reimburse the primary party for the costs it incurs “in connection with the primary election.” Id. §§ 173.033-034. For the primary parties, access to the general election ballot is determined by the outcome of the primary election and the certification of those results. Id. § 172.122(a). The winners of each primary race are designated as the party's nominee, and the nominees are then placed on the general election ballot. Id. §§ 172.116; 172.117(a); 172.120(a),(h); 172.122.

In contrast to the primary parties, third parties must nominate their candidates through a convention. Id. §§ 181.002, 181.003, 172.002. A third party is entitled to have candidates placed on the general election ballot if, within the last five years, one of its statewide candidates received votes equal to at least two percent of the total number of votes received by all candidates for that office. Id. § 181.005(c). That is, after meeting such requirements, a third party becomes a ballot-qualified convention party (a “Qualified Convention Party”), which means it is entitled to have its candidates on the general election ballot.

Starting in 2019, the Texas Legislature began to impose additional requirements on Qualified Convention Party candidates through the passage of H.B. 2504 (86th Leg. R), codified as Texas Election Code § 141.041(a) (repealed). That legislation mandated that to appear on the general election ballot in the 2020 cycle, third-party candidates would be required to either: (a) pay a filing fee; or (b) submit a nomination petition that complies with Texas Election Code § 141.062 and is signed by a specified number of eligible voters. See Tex. Elec. Code § 141.041(a) (repealed). To be eligible for nomination at a convention under this new law, a candidate must file an application and pay a filing fee with the state or county chair, which contains the information necessary to show that the candidate is eligible for public office should that candidate be elected. Id. §§ 141.031 & 181.031(a). This contrasts with the procedures that apply to Primary Parties, whose candidates file their applications and pay their fee directly to the parties themselves. Id. §§ 172.021(b) & 172.022. Most critically, while primary parties use the filing fees to help offset the costs of hosting a primary, third parties must pay the filing fees to the state or county chair, and do not receive a corresponding rebate to offset the cost of their conventions.^[2]

B. Procedural History

Plaintiffs include the LPT and several candidates who have run for office and continue to run for office on the LPT ticket. (4th Am. Compl., Dkt. 61). Plaintiffs filed suit on December 1, 2021, and filed an amended complaint on December 23, 2021. (Compl., Dkt. 1; Am. Compl., Dkt. 12). In their first amended complaint, Plaintiffs challenged Section 181.0311 of the Texas Election Code, which was amended in 2021 to require payment of a filing fee (or a petition in lieu thereof) in order for a third party to be considered at a nominating convention. (Am. Compl., Dkt. 12).

With their first amended complaint, Plaintiffs also moved for a preliminary injunction to enjoin Section 181.0311 from taking effect. (Mot. Prelim. Inj., Dkt. 14). The Court held a hearing on the preliminary injunction on February 24, 2022, (Dkt. 32), and denied the motion on March 1, 2022. (Order, Dkt. 35). In its order, the Court noted that the “restrictions here likely represent reasonable and nondiscriminatory measures” comparable to those upheld by other courts. (Id. at 6). Because Defendants argued that Section 181.0311 advanced the State's interest of a showing a modicum of support, the Court found that Defendants were likely to establish “important, if not compelling, state interests,” which was “all that is required to uphold this likely reasonable and nondiscriminatory election law. . . .” (Id. at 7-8). Plaintiffs also challenged Section 181.0311's requirement that third parties must pay fees to the state without receiving funds back for its nominating process. (Am. Compl., Dkt. 12; Mot. Prelim. Inj., Dkt. 14, at 10). Here, the Court noted that Plaintiffs were unlikely to suffer irreparable harm sufficient to warrant a preliminary injunction and denied the motion on that basis without addressing the likelihood of success on the merits. (Order, Dkt. 35, at 9-10).

Following Texas's passage of S.B. 994 in 2023, Plaintiffs filed an updated amended complaint. (4th Am. Compl., Dkt. 61).^[3] The amended complaint maintains Plaintiffs' challenge to Section 181.0311 while also alleging that S.B. 994 violates their First and Fourteenth Amendment rights by vesting the Texas Secretary of State with unilateral authority to disqualify candidates. (Id. at 18). Plaintiffs also maintain that Section 181.0311 intrudes on their constitutional rights by using filing fees to support the costs of hosting primary party elections, but not to defray the costs of third-party conventions. (Id. at 18-20).

Defendants moved to dismiss the fourth amended complaint on February 2, 2024. (Dkt. 64). Defendants allege that any claims for damages are barred by sovereign immunity; that the First Amendment claims fail because Texas's restrictions are reasonable, are nondiscriminatory, and advance legitimate governmental interests; and that the due process and equal protection claims fail because Plaintiffs identify no property right and are not similarly situated parties. (Id.). Plaintiffs responded, conceding any Procedural Due Process claims, but arguing that the remaining claims should survive past the pleading stage. (Dkt. 67).

II. LEGAL STANDARD

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject-matter jurisdiction as a defense to suit. Fed.R.Civ.P. 12(b)(1). Federal district courts are courts of limited jurisdiction and may only exercise such jurisdiction as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002). “Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Id. In ruling on a Rule 12(b)(1) motion, the court may consider any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).

B. Rule 12(b)(6)

Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a 12(b)(6) motion, a “court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the...