Fifth Circuit considers if Texas rules keep minor parties off ballots

NEW ORLEANS (CN) — Four minor parties and independent voters argued to a Fifth Circuit Court of Appeals panel Monday that a Texas requirement that they obtain paper copies and thousands of handwritten signatures to get on the state's ballot poses an unequal burden.

Throughout Monday’s oral argument, however, the three-judge appeals panel judges appeared likely to side with Texas, which says the ballot requirement law prevents fraud.

Attorney Oliver Hall, representing the minor parties and independents, said the state continues to tell them they won’t have a problem getting on the ballot if they simply hold a convention to garner support.

“This is true,” Hall told the panel, “However, the record unequivocally establishes that no party has done that in over 50 years," — in large part, Hall argued, because how expensive, time consuming and nearly impossible it is to get everyone together in one place on such short notice.

Texas is the only state that keeps minor parties and independents from collecting signatures before the primary election and bars voters from signing petitions if they voted in a primary election.  

The plaintiffs — the Green Party of Texas, the Libertarian Party of Texas and a handful of individuals — say this is just one of the unfair barriers preventing non-party political groups from appearing on the Texas ballot. They also protest extraordinary fees and a law requiring paper copies and handwritten signatures of support from tens-of-thousands to hundreds-of-thousands of people.

U.S. Circuit Judge Cory Wilson, an appointee of Donald Trump, appeared slightly impatient responding to Hall, saying, "Basically, all you got to do is get a bunch of people to show up at this precinct."

“Yes, but no one has ever done it,” Hall said. “It’s extremely difficult and unlikely to marshal that number of people on the same day … it’s a statutory requirement that no party has ever complied with.”

Also, Hall said, the cost of petition drives has “skyrocketed” since the last time the Green Party qualified to be on a ballot in 2004.  

Both the plaintiffs and Texas officials appealed a September 2022 order from a lower court judge that found Texas does levy an unfair burden on minor parties, but since the minor party plaintiffs have managed to appear on ballots anyway, the judge ruled in favor of the state on all aspects of the lawsuit except the one challenging the state’s paper and hand signature requirement.

U.S. Circuit Judge Jennifer Walker Elrod, an appointee of George W. Bush, said that it’s imperative to have an assembly of people sign paper petitions at these conventions — as opposed to letting people show their support electronically, possibly from the comfort of their own homes — because of the “constitutional issues” at play.

Hall said the issue of unconstitutionality is still being decided upon.

Lanora Christine Petite, who argued on behalf of Jose Esparza, Deputy Secretary of the State of Texas, said that the state requires minority parties to use paper copies with handwritten signatures because of fraud concerns.

“There is a preference to use in-house regulators because outside circulators are likely to make up signatures,” Petite told the panel. “Therefore, it is better to get in-person signatures.”

Hall also argued against the amount of required signatures.

“This case presents a novel situation and the reason it is a novel situation is that Texas requires way more signatures” than are necessary to show that a candidate has support, he said.

Judge Wilson said that the reason so many in-person signatures are required before a minor party candidate can appear on a ballot “is that the population of Texas has gone up,” but Hall disagreed.

Hall said the plaintiffs are challenging the overall combined effect of this statutory requirement.

“The fact of the matter is you cannot meet the signature requirements as a non-wealthy, non-party candidate,” he said.

He pointed out that the major parties never need to conduct the petition drives required of minor parties and independents.

The nominee major parties elect, “at the expense of taxpayer funds,” is put on the ballot, Hall argued. Meanwhile, the non-party candidate has to do everything at their own expense.

Hall said that under the state statute, minor parties have to follow procedures that can’t be completed without spending a million dollars or more.

U.S. Judge Jacques Weiner, an appointee of H.W. Bush, rounded out the panel, which did not indicate how or when they will decide.

Follow @SabrinaCanfiel2

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit