Case: 23-50537 Document: 86-1 Page: 1 Date Filed: 09/10/2024
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
September 10, 2024
No. 23-50537 Lyle W. Cayce
____________ Clerk
Mark Miller; Scott Copeland; Laura Palmer; Tom
Kleven; Andy Prior; America’s Party of Texas, also known
as APTX; Constitution Party of Texas, also known as CPTX;
Green Party of Texas, also known as GPTX; Libertarian
Party of Texas, also known as LPTX,
Plaintiffs—Appellees/Cross-Appellants,
versus
Jane Nelson, in her official capacity as the Secretary of State of the State of
Texas; Jose A. Esparza, in his official capacity as the Deputy Secretary of
the State of Texas,
Defendants—Appellants/Cross-Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-700
______________________________
Before Wiener, Elrod, and Wilson, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
Independent candidates and minor political parties in Texas filed a
lawsuit alleging that numerous provisions of the Texas Election Code, when
considered in combination with one another, violate their First and
Fourteenth Amendment rights. Because they have not proven that the
Case: 23-50537 Document: 86-1 Page: 2 Date Filed: 09/10/2024
No. 23-50537
challenged provisions violate their constitutional rights, we AFFIRM in part
and REVERSE in part.
I
The Texas Election Code requires candidates to fulfill certain
requirements to be listed on Texas ballots. Plaintiffs–Appellees allege that
the challenged provisions violate the First and Fourteenth Amendments
because, when applied in combination with one another, they impose severe
and unequal burdens on “non-wealthy Independents and Minor Parties.”
Specifically, they argue that the following provisions of the Code “have
prevented [them] from being able to fully participate in Texas’s electoral
process”: Texas Election Code §§ 141.063–.065, 141.066(a), 141.066(c),
142.002, 142.006–.009, 142.010(b), 162.001, 162.003, 162.012, 162.014,
181.0311, 181.005(a), 181.005(c), 181.006(a), 181.006(b), 181.006(f)–(j),
191.007(b), 181.031–.033, 181.0041, 192.032(a)–(d), 192.032(f), and 202.007.
At the most fundamental level, the Code provides three ways for a
candidate to obtain a place on the statewide general-election ballot:
(1) winning a primary election; (2) receiving a nomination from a political
party that nominates by convention and qualifies for ballot access; or
(3) submitting a nominating petition signed by the required number of voters.
See Tex. Elec. Code §§ 142.001–10, 172.001–173.087, 181.001–.068, 192.032.
Under section 172.001 of the Texas Election Code, political parties
that received at least twenty percent of the vote in the last gubernatorial
election, which are classified as “Major Parties,” nominate their candidates
for state and county government and Congress by primary election. See Tex.
Elec. Code § 172.001. To run in a primary election, a candidate must either
(1) submit an application to the state or county party chair in December of
the year before the election and pay a filing fee or (2) submit a nomination
petition. Id. §§ 172.116, .117(a), .120(a), .120(h), .122. The filing fees range
2
Case: 23-50537 Document: 86-1 Page: 3 Date Filed: 09/10/2024
No. 23-50537
from $75 to $5,000. Id. § 172.024. If a candidate elects to submit a
nomination petition, he or she must collect between 500 and 5,000 signatures
depending on the office sought. Id. § 172.025. The Republican and
Democratic parties are the only parties to have qualified as Major Parties
under the Code since 1900.
The second way to obtain ballot access is for “Minor Parties,” which
are new political parties or parties that did not receive at least two percent of
the total vote cast for governor at least once in the five previous general
elections, to nominate candidates by convention. See id. §§ 172.002, 181.002,
181.003. Like Major Party candidates, candidates who seek a Minor Party’s
nomination must complete a notarized application in December of the year
before the election. Id. §§ 141.031, 172.023(a), 181.031–33. To list a nominee
on the general-election ballot, a Minor Party must file a conventionparticipant list within seventy-five days of the convention that shows
participation equal to at least one percent of the total vote for governor in the
preceding general election. Id. § 181.005(a). No Minor Party has qualified
for the ballot in this manner in the last fifty years.
Thus, Minor Party candidates typically obtain ballot access through
the third method provided for by the Code, which is filing nomination
petitions. To qualify for the ballot using this method, a Minor Party must file
a nomination petition containing enough valid signatures to make up for the
shortfall in their convention-participation list within seventy-five days of the
convention date. See id. § 181.006(a), (b). Notably, the Texas Election Code
restricts petitions in numerous ways. First, a voter is not allowed to sign a
nomination petition until after primary elections are held. Id. § 181.006(j).
In addition, only voters who have not voted in a primary election and have
not signed another Minor Party’s nomination petition or participated in
another party’s convention are allowed to sign. See id. §§ 162.001, 162.003,
162.012, 162.014, 181.006(g), 181.006(j).
3
Case: 23-50537 Document: 86-1 Page: 4 Date Filed: 09/10/2024
No. 23-50537
Further, to file a petition, a petition circulator must sign an affidavit
confirming that they did each of the following: witnessed each signature,
confirmed the date of signing, verified each signer’s registration status, and
confirmed each registration number entered on the petition. Id. §§ 141.064,
141.065. There is no electronic method for obtaining or submitting
signatures. Moreover, when a Minor Party succeeds at obtaining ballot
access through this method, it can only retain ballot access if one of its
candidates for statewide office has received at least two percent of the vote
in at least one of the five previous general elections. Id. § 181.005(c).
Otherwise, the Minor Party must go through the petition process again
during the next election cycle. Id. 1
Independents can only qualify for the ballot by satisfying the
nomination-petition requirements. And the requirements for doing so mirror
the requirements imposed on Minor Party candidates who fail to obtain ballot
access by convention. Indeed, Independents must file a declaration of intent
in December of the year before the election, just like Minor Party candidates.
Id. § 142.002. Likewise, Independents must file an application and a
nomination petition that contains valid signatures equal in number to one
percent of the total vote for governor in the preceding election. Id.
§§ 142.004, 142.007. Independents seeking state office must also submit
their nomination petitions by the thirtieth day after the runoff-primary
election day, but they may not circulate them until after the primary election
_____________________
1
In 2019, Texas amended the statutory scheme to impose a new requirement on Minor
Parties that is symmetrical with a requirement imposed on Major Parties. The added provision states
that to appear on the general-election ballot, candidates must either pay a filing fee or submit a
nomination petition that complies with section 141.062 and is signed by a specific number of eligible
voters. Tex. Elec. Code § 181.0311 (previously codified as § 141.041).
4
Case: 23-50537 Document: 86-1 Page: 5 Date Filed: 09/10/2024
No. 23-50537
or runoff-primary election. Id. §§ 142.004–.006, 142.009, 202.007. 2
Likewise, Independents must have petition circulators complete affidavits
confirming the validity of signatures and only voters who have not voted in a
primary election or signed another nomination petition may sign. Id.
§§ 141.062–.066.
II
Plaintiffs–Appellees filed this lawsuit pursuant to 42 U.S.C. § 1983,
alleging that the challenged provisions of the Texas Election Code are
unconstitutional as applied to them when applied in combination with one
another. They then filed a motion for a preliminary injunction, which the
district court denied. In the same order, the district court also denied
Defendants’ motion to dismiss.
The parties filed cross-motions for summary judgment. The district
court granted in part and denied in part each party’s motion. Specifically,
the district court held that all of Plaintiffs–Appellees’ challenges failed except
for one. The district court agreed with Plaintiffs–Appellees that the
provisions of Texas Election Code Chapter 141 that mandate that any
candidate who is required to submit a petition in support of their candidacy
obtain and submit the requisite number of voter signatures in hardcopy are
unconstitutional. It reasoned that the ballot-access petition requirements
place an unequal burden on Plaintiffs–Appellees because “they cannot use
electronic methods for petitioning whereas Texas allows Major Parties to use
electronic methods as part of their procedures for accessing the ballot.”
_____________________
2
In 2020, these restrictions made it so that Independents seeking state office had either
thirty days or 114 days to collect signatures, depending on whether a runoff primary took place.
ROA.2309.
5
Case: 23-50537 Document: 86-1 Page: 6 Date Filed: 09/10/2024
No. 23-50537
Accordingly, the district court enjoined Defendants–Appellants from
enforcing any provision of Chapters 141, 142, 162, 181, or 202 of the Texas
Election Code insofar as any such provision imposes an unequal burden on
Plaintiffs by imposing a paper-petitioning process. Defendants–Appellants
appealed. Without objection from Plaintiffs–Appellees, the district court
entered an order staying its injunction. Plaintiffs–Appellees then filed notice
of their cross-appeal.
III
We review a district court’s decision to grant a preliminary injunction
for abuse of discretion. Jordan v. Fisher, 823 F.3d 805, 809 (5th Cir. 2016).
Under this standard, the district court’s findings of fact are reviewed for clear
error, and conclusions of law are reviewed de novo. Id.; see also O’Donnell v.
Harris Cnty.,
892 F.3d 147, 155 (5th Cir. 2018).
When evaluating the constitutionality of ballot-access laws, we apply
the Anderson-Burdick framework. Under this standard, we determine
whether a law that regulates ballot access is constitutional by weighing the
“character and magnitude of the asserted injury to the rights protected by
the First and Fourteenth Amendments that the plaintiff seeks to vindicate”
against “the precise interests put forward by the State as justifications for the
burden imposed by its rule.” Anderson v. Celebrezze, 460 U.S. 780, 789
(1983). “The rigorousness of the inquiry into the propriety of the state
election law depends upon the extent to which the challenged regulation
burdens First and Fourteenth Amendment rights.” Tex. lndep. Party v. Kirk,
84 F.3d 178, 182 (5th Cir. 1996) (citing Burdick v. Takushi,
504 U.S. 428, 434
(1992)). “[R]easonable, nondiscriminatory restrictions” are subject to less
exacting review, whereas laws that impose “severe” burdens are subject to
strict scrutiny. Burdick,
504 U.S. at 434 (quoting Anderson,
460 U.S. at 788,
and Norman v. Reed,
502 U.S. 279, 289 (1992)). Nevertheless, in every case,
6
Case: 23-50537 Document: 86-1 Page: 7 Date Filed: 09/10/2024
No. 23-50537
the Supreme Court has emphasized that “[h]owever slight [the] burden may
appear . . . it must be justified by relevant and legitimate state interests
‘sufficiently weighty to justify the limitation.’” Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 191 (2008) (quoting Norman, 502 U.S. at 288–89).
The district court carefully summarized the burdens that Plaintiffs–
Appellees allege as each stemming from one of the following: (1) the number
of signatures required to petition under the Texas Election Code; (2) the cost
of obtaining signatures; (3) the time constraints on petitioning; (4) the
restrictive petitioning procedures; and (5) section 141.041, which was
enacted in 2019 and is now codified at section 181.0311. In this court,
Plaintiffs–Appellees now also argue that the district court did not address
their claim that the requirements imposed on Independents in presidential
elections are unconstitutional. Because Plaintiffs–Appellees have failed to
prove that the challenged provisions impose severe burdens on them, when
considered individually or in combination with one another, and because the
regulations are justified by legitimate state interests, we uphold the
constitutionality of all challenged provisions as applied to Plaintiffs–
Appellees.
A
As the district court proficiently explained, “[t]o qualify for the
general election ballot in Texas, a statewide Minor Party or Independent
candidate must submit valid signatures totaling 1% of all votes cast in the most
recent gubernatorial election and 1% of all votes cast for president in Texas in
the most recent presidential election.” Plaintiffs–Appellees allege that this
requirement imposes a severe burden that should be subjected to strict
scrutiny. We disagree.
We have already held that a one-percent requirement does not impose
a severe burden on potential candidates. See Nader v. Connor, 388 F.3d 137–
7
Case: 23-50537 Document: 86-1 Page: 8 Date Filed: 09/10/2024
No. 23-50537
38 (5th Cir. 2004). Specifically, in Nader, the district court held, and this
court affirmed, that requiring a presidential candidate to gather signatures
equal to one percent of votes cast in the prior presidential election was not
“unduly restrictive or unreasonable” because Texas has a legitimate interest
in “‘assur[ing] itself that the candidate is a serious contender truly
independent, and with a satisfactory level of community support.’” Nader v.
Connor, 332 F. Supp. 2d 982, 987 (W.D. Tex. 2004) (alteration in original)
(quoting Storer v. Brown,
415 U.S. 724, 746 (1974)); see also Nader, 388 F.3d
at 137–38. Although Nader’s holding is not alone outcome determinative in
this case, because courts must give “due consideration . . . to the practical
effect of election laws of a given state,” Nader,
332 F. Supp. 2d at 988, the
reasoning articulated in Nader applies. See Clements v. Fashing,
457 U.S. 957,
963 (1982) (stating that decisions in this area of constitutional law involve
consideration of specific facts, circumstances, and the impact that a
restriction has on voters).
As the district court correctly observed in its order, the Libertarian
Party and Green Party of Texas have surmounted the requirement to secure
ballot access consistently for several years. Thus, they have not shown that
the burden is unduly restrictive as applied to them. In addition, the remaining
plaintiffs have not shown that the numerical signature requirement
unconstitutionally burdens their parties or voters. The Constitution Party of
Texas and America’s Party of Texas have about 130 members and ten
members, respectively. Thus, neither Minor Party can credibly claim to have
“a significant, measurable quantum of community support,” which a state is
within its constitutional bounds to require for ballot access. Am. Party of Tex.
v. White, 415 U.S. 767, 782–83 (1974) (citing Jenness v. Fortson,
403 U.S. 431,
439 (1971)). Likewise, the individual plaintiffs have failed to prove that the
numerical requirement “freezes the status quo.” Kirk,
84 F.3d at 185
(quoting White,
415 U.S. at 787). Instead, the evidence suggests that the
8
Case: 23-50537 Document: 86-1 Page: 9 Date Filed: 09/10/2024
No. 23-50537
requirement does no more than “implicitly recognize[] the potential fluidity
of American political life.” Id. at 185 (quoting White,
415 U.S. at 787). And
the mere fact that a state’s system “creates barriers . . . tending to limit the
field of candidates from which voters might choose . . . does not of itself
compel close scrutiny.” Bullock v. Carter,
405 U.S. 134, 143 (1972). Indeed,
Texas’s numerical signature requirement is justified by the state’s legitimate
state interest in “assur[ing] itself that the candidate is a serious contender,
truly independent, and with a satisfactory level of community support,”
before listing that candidate on the ballot. See Storer,
415 U.S. at 746; Tex.
Elec. Code §§ 142.007(1), 192.032(d). Accordingly, we uphold the
requirement as constitutional as applied to Plaintiffs–Appellees.
B
Plaintiffs–Appellees also argue that the challenged provisions are
unduly burdensome because, practically speaking, they make it so that Minor
Party and Independents must hire professional petition circulators to collect
an adequate number of signatures to obtain ballot access through the
petitioning process. In support of this argument, Plaintiffs–Appellees cite
the Supreme Court’s decision in Bullock, which struck down a statutorily
mandated filing fee. 405 U.S. at 149. While Plaintiffs–Appellees recognize
that there is no statutory requirement to pay petition circulators in this case,
they argue that the practical effect of the challenged provisions, which is that
their candidates must hire petition circulators to complete a successful
petition drive, constitutes “a distinction without a difference.” But
Plaintiffs–Appellees have failed to establish that the costs amount to a
consequential burden in this case. As the district court explained in its order,
“[t]he evidence in this case does not show that the State is impermissibly
conditioning Plaintiffs’ participation in the electoral process on their
financial status.” Once again, the evidence reflects that the Libertarian and
9
Case: 23-50537 Document: 86-1 Page: 10 Date Filed: 09/10/2024
No. 23-50537
Green Parties of Texas have ballot access, and the remaining plaintiffs fail to
establish that they have been impacted by the alleged burden, even if we were
to hold that the burden is severe.
C
Plaintiffs–Appellees further argue that the provisions of the Texas
Election Code that place time constraints on when Independents or Minor
Parties can collect signatures for petitions are unconstitutionally
burdensome. It is true that the Texas Election Code places more stringent
time constraints on candidates seeking to access the ballot through the
petitioning process than any other state. Nevertheless, Plaintiffs–Appellees’
claim that this is severely burdensome as applied to them fails for the same
reason that their claims concerning the number of signatures required and
the costs of obtaining signatures fail. As the district court adeptly held,
Plaintiffs–Appellees have failed “to present adequate evidence that the time
constraints burden them. Instead, [they] simply argue that the time period
remains fixed while the number of required signatures increases with each
election cycle.” Such evidence is not sufficient to establish a severe burden
on Plaintiffs–Appellees.
D
Next, Plaintiffs–Appellees challenge the requirements imposed on
petition signers and circulators. Specifically, Plaintiffs–Appellees allege that
the “primary screenout” provisions, which restrict potential voters from
signing petitions before the primaries and then prohibit voters who have
voted in the primaries from signing petitions, impose an unconstitutional
burden. However, Plaintiffs–Appellees have once again failed to tie the
restrictions to evidence of the severe burdens placed specifically on them.
See Kirk, 84 F.3d at 186 & n.5. Not only so, the screenout restrictions are
“nothing more than a prohibition against any elector’s casting more than one
10
Case: 23-50537 Document: 86-1 Page: 11 Date Filed: 09/10/2024
No. 23-50537
vote in the process of nominating candidates for a particular office.” White,
415 U.S. at 785. Texas “may determine that it is essential to the integrity of
the nominating process to confine voters to supporting one party and its
candidates in the course of the same nominating process” such that “each
qualified elector may . . . exercise the political franchise . . . either by vote or
by signing a nominating petition.”
Id. at 785–86 (quoting Jackson v. Ogilvie,
325 F. Supp. 864, 867 (N.D. Ill.), aff’d,
403 U.S. 925 (1971)). But once that
determination has been made, the electorate “cannot have it both ways,”
even despite Plaintiffs–Appellees’ best arguments. Id. at 785 (quoting
Jackson,
325 F. Supp. at 867).
E
Plaintiffs–Appellees also argue that section 181.0311, which states that
candidates seeking nomination at a convention must pay a filing fee or submit
a petition in lieu thereof, runs afoul of the Equal Protection Clause because it
is facially discriminatory against “non-wealthy candidates and their
supporters” and does not implicate any legitimate state interest. See Tex.
Elec. Code § 181.0311. Specifically, Plaintiffs–Appellees argue that the
provision is unconstitutional because “[i]t requires that Minor Party
candidates pay filing fees identical to those paid by Major Party candidates,
but while the Major Parties retain the fees their candidates pay, the State
retains the fees that Minor Party candidates pay.”
But Plaintiffs–Appellees’ argument is not supported by precedent. In
Texas, all party candidates that seek ballot access through a primary or
nominating convention, regardless of party affiliation, must demonstrate that
they are serious candidates with some public support by submitting either a
filing fee or a nominating petition. See id. § 181.0311. Section 181.0311 serves
that state interest, and its implementation is consistent with the wellestablished rule that a state is not obliged to assure “every voter . . . that a
11
Case: 23-50537 Document: 86-1 Page: 12 Date Filed: 09/10/2024
No. 23-50537
candidate to his liking will be on the ballot.” Lubin v. Panish, 415 U.S. 709,
716 (1974).
Plaintiffs–Appellees’ argument that the Supreme Court’s holding in
Bullock demands otherwise is inapposite. In Bullock, the Court held that
“providing no reasonable alternative means of access to the ballot” other
than paying a filing fee violates the Equal Protection Clause. 405 U.S. at 149.
It did so because it reasoned that, in a state with such a ballot-access scheme,
candidates seeking election could be “precluded from seeking the
nomination of their chosen party, no matter how qualified they might be, and
no matter how broad or enthusiastic their popular support.”
Id. at 143. But
the system that Texas has created under section 181.0311 does not have such
an inherently preclusive effect. By giving candidates an option between
collecting signatures or paying a filing fee, Texas law does not measure
whether a candidacy is serious or spurious “solely in dollars.” Lubin,
415
U.S. at 716.
F
Finally, Plaintiffs–Appellees argue that “the Supreme Court and this
Court have made clear that states may not impose more severe ballot access
requirements on candidates for president than they do on candidates for
other statewide offices” and that Texas’s Election Code does just that.
Specifically, Plaintiffs–Appellees allege that the challenged provisions
impose more severe restrictions on presidential Independents than on
statewide Independents in two ways. First, while statewide Independents
must obtain petition signatures equal to one percent of the last vote for
governor, presidential Independents must obtain signatures equal to one
percent of the last vote for president. See Tex. Elec. Code § 192.032(d).
Second, presidential Independents may not circulate their petitions until
after the presidential primary but must submit them by the second Monday
12
Case: 23-50537 Document: 86-1 Page: 13 Date Filed: 09/10/2024
No. 23-50537
in May, which results in presidential Independents having less time to
circulate petitions than statewide Independents.
But Plaintiffs–Appellees misapply Kirk and Anderson. In Kirk, we
held that Texas’s deadlines for filing declarations of intent did not unduly
burden minor parties but that requiring nomination petitions to contain each
signer’s voter-registration number did. 84 F.3d at 187. In doing so, we noted
in dicta that when considering challenges to state-imposed restrictions on
national elections, courts must consider that states have a “less important
interest in regulating Presidential elections than statewide or local elections,
because the outcome of the former will be largely determined by voters
beyond the State’s boundaries.”
Id. at 183 (quoting Anderson,
460 U.S. at
795). Contrary to Plaintiffs–Appellees’ claim, this statement from Kirk does
not stand for the proposition that it would be unconstitutional for a state law
to have the effect of practically requiring more from potential presidential
candidates than from candidates running for statewide election. Rather, Kirk
merely says that when evaluating the constitutionality of ballot-access laws,
courts should factor in that a state has less important interests in regulating
nationwide elections than statewide elections. Indeed, our law does not
suggest that it is unconstitutional for a state law to have the effect of
practically requiring more from potential presidential candidates than
candidates running for statewide election. Thus, we affirm the district
court’s holding that section 181.0311 is not unconstitutionally burdensome as
applied to Plaintiffs–Appellees.
G
We turn finally to Plaintiffs–Appellees’ argument that the lack of electronic petitioning methods available to Minor Party and Independents render
Texas’s requirement that petitions be completed on paper unconstitutional.
Specifically, Plaintiffs–Appellees argue that the requirement that petitions be
13
Case: 23-50537 Document: 86-1 Page: 14 Date Filed: 09/10/2024
No. 23-50537
completed on paper violates Plaintiffs–Appellees’ right to equal protection
because Major Parties are allowed to use electronic methods to obtain ballot
access. We disagree.
While Major Parties are allowed to use electronic methods during the
Primary Election process, all candidates who participate in the petitioning
process are required to obtain their petition signatures through wet-ink/hardcopy signatures. And as confirmed at oral argument, all candidates, regardless of party affiliation, have the opportunity to file applications for ballot access and the accompanying petitions electronically under Chapter 141. Tex.
Elec. Code §§ 141.040(c); 141.062–141.065. 3 In other words, the paper-petitioning requirements are the same for all candidates who elect to obtain ballot access through the petitioning method.
Under the mistaken impression that only Major Parties could file applications and petitions electronically, the district court found for the Plaintiffs–Appellees on this equal protection claim. But because this is not the
case, we reverse the district court’s holding that the electronic petitioning
requirement is unconstitutional.
IV
Because the challenged provisions of the Texas Election Code do not
violate the Constitution as applied to Plaintiffs–Appellees, we AFFIRM in
part and REVERSE in part and RENDER.
_____________________
3
To the extent that Plaintiffs–Appellees argue that the paper-petitioning
requirement has a more burdensome effect on them than on Major Party candidates, we
reject that claim for the same reasons that we have rejected Plaintiffs–Appellees’ other
claims. Plaintiffs–Appellees have failed to tie the paper-petitioning requirement to
evidence of the severe burdens placed specifically on them.
14
