Faas v. Cascos et al

Filing 28

MEMORANDUM OPINION AND ORDER granting 23 MOTION to Dismiss PLAINTIFFS FIRST AMENDED COMPLAINT AND APPLICATION FOR DECLARATORY AND INJUNCTIVE RELIEF (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

SOURAYA FAAS and LEONARD
STANLEY CHAIKIND,
Plaintiffs,

v.
CARLOS CASCOS (In His Official
Capacity as the Secretary of
the State of Texas) and THE
STATE OF TEXAS,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§
§

December 05, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-1299

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendants'

Motion to Dismiss

Plaintiffs' First Amended Complaint and Application for Declaratory
and Injunctive Relief

(Docket Entry No.

23) .

For the reasons

stated below, Defendants' motion will be granted.
I.

Factual and Procedural Background

Plaintiff Souraya Faas is a declared independent candidate for
the

office

of

President

of

the

United

States. 1

Plaintiff

Leonard Stanley Chaikind is a resident of Texas who wanted to vote
for Faas in the 2016 election.

Plaintiffs brought suit against

defendant Carlos Cascos in his official capacity as Secretary of the

1

Factual allegations are taken from Plaintiffs' First Amended
Complaint and Application for Declaratory and Injunctive Relief
("Plaintiffs' Amended Complaint"), Docket Entry No. 22.

State

of

Texas

and

against

the

State

of

Texas,

claiming

that

portions of the Texas Election Code ("the Code") violate federal and
state law.

Specifically, Plaintiffs claim that §§ 141.031 (a) (4) (K),

146.025(a) (1),
(d)

(f)

1

192.032(a),

(g),

1

unconstitutional
Plaintiffs. 2

(b) (1) (B),

192.033(a),
and

illegal,

and

(b) (3) (A),

192.034(a)

either

of

(b) (3) (B),
the

facially or as

(c),

Code

are

applied to

Plaintiffs claim that the statutes "violate . . . U.S.

Const. Art. II§ 1, cl. 4[;] the First and Fourteenth Amendments to
the United States
§

1983 [;]

Constitution[;]

and Sections 3,

3a,

Title

42

United States

Code,

and 8 of Article 1 of The Texas

Constitution." 3
The challenged portions of the Code read as follows:
•

141.031(a) (4) (K): "A candidate's application for a place on
the ballot that is required by this code must" include the
statement: "I,
, of
County, Texas, being
a candidate for the office of
, swear that I will
support and defend the constitution and laws of the
United States and of the State of Texas"

•

146.025 (a) (1) : "Except as otherwise provided by this code, a
declaration of write-in candidacy: (1) must be filed not later
than 5 p.m. of the 78th day before general election day"

•

192.032:
(a)
To be entitled to a place on the general election ballot,
an independent candidate for president of the United States
must make an application for a place on the ballot.
(b)

2

~

An

application must:

Plaintiffs'

Amended Complaint,

18.

-2-

Docket Entry No.

22,

p.

10

(1)

comply with Section 141.031, except that:
(B)
the application must contain the applicable
information required by Section 141.031(a) (4) with
respect to both the presidential candidate and the
running mate;

(3)

be accompanied by:
(A)
a petition that satisfies the
prescribed by Section 141. 062; and

requirements

(B)
written
statements
signed by
the
vicepresidential candidate and each of the presidential
elector candidates indicating that each of them
consents to be a candidate.
(c)
The application must be filed with the secretary of state
not later than the second Monday in May of the presidential
election year.
(d)
The minimum number of signatures that must appear on the
petition is one percent of the total vote received in the
state by all candidates for president in the most recent
presidential general election.
(f)
The following statement must appear at the top of each
page of the petition: "I did not vote this year in a
presidential primary election."
(g)

A signature on the petition is invalid if the signer:
( 1)
signs the petition on or before the date of the
presidential primary election in the presidential
election year; or
(2)
voted in a presidential primary election during the
presidential election year.

•

192.033 (a) :
"Except as provided by Subsection (c), the
secretary of state shall certify in writing for placement on
the general election ballot the names of the candidates for
president and vice-president who are entitled to have their
names placed on the ballot."

•

192.034(a):
"The names of a presidential candidate and the
candidate's running mate shall be placed on the ballot as one
race."
-3-

Plaintiffs claim that the requirements discriminate against
and

place

"an

independent

undue,

unreasonable,

presidential

and

candidates." 4

unjustified
Plaintiffs

earlier deadlines for independent candidates
candidates are discriminatory.

burden
claim

on

that

than party-affiliated

Plaintiffs allege that the petition

signature requirement, limited petitioning time, and early petition
deadline

prevented

preventing Texans

Faas

from

qualifying

for

the

ballot,

thus

from voting for her and effectively diluting

votes cast for Faas in other states.
Plaintiffs ask that the court declare that the challenged
sections of the Election Code are illegal and unconstitutional
facially or as

applied.

Plaintiffs

ask

that

the

court

enter

preliminary and permanent injunctions and writs of prohibition and
mandamus

preventing enforcement.

placing Faas'

name,

Plaintiffs

also

seek

orders

that of her Vice Presidential running mate,

should she name one, and those of her electors, on the Texas ballot
In the alternative, Faas asks

for the General Election in 2016.

that she be allowed access to the ballot as a write-in candidate
without naming a running mate.

Finally, Faas seeks attorney's fees

pursuant to the Civil Rights Attorney's Fees and Awards Act of
1976, 42 U.S.C.

§

1988, and any other relief to which she may be

entitled.
Defendants

argue

that

the

statutory

scheme

of

the

Texas

Election Code as applied to independent candidates has been upheld

4

Id. at 6

~

10.
-4-

despite

constitutional

Defendants

contend

challenges

that

Plaintiffs

at

all

levels

therefore

have

of

review.

no

legally

cognizable claim.
II.
A.

Analysis

Mootness

"The rule in federal cases is that an actual controversy must
be extant at all stages of review,
complaint is filed."
n.10 (1974)

Steffel v.

(citing cases).

not merely at the time the

Thompson,

94 S.

Ct.

1209, 1216

The motion and related filings before

the court were submitted before the 2016 general election and do
not address the issue of mootness.

But the court must nevertheless

determine whether it has continuing jurisdiction.

"[A] request for

injunctive relief generally becomes moot upon the happening of the
event sought to be enjoined."
186, 189 (5th Cir. 1998).

Harris v. City of Houston, 151 F.3d

The 2016 election is a fait accompli.

Any injunctive relief sought by Plaintiffs with respect to that
event,

including

ballot

placement,

is

therefore

no

longer

available.
Claims pertaining to election laws, however, often fall within
an exception to the mootness doctrine for the class of controversies
capable

of

repetition,

yet

evading

review.

Kucinich v.

Democratic Party, 563 F. 3d 161, 164 (5th Cir. 2009)
internal quotation marks omitted) .

Texas

(citations and

The United States Supreme Court

has decided election cases even when the plaintiffs failed to allege
-5-

that they would be governed by the same flawed law in the next
election.

See Anderson v.

Celebrezze,

103 S.

Ct.

1564,

1567 n.3

(1983); Storer v. Brown, 94 S. Ct. 1274, 1282 n.8 (1974); Rosario v.
Rockefeller, 93 S. Ct. 1245, 1249 n.5 (1973); Dunn v. Blumstein, 92

s. Ct. 995, 998 n.2, (1972).

Plaintiffs' constitutional challenges

to the Code and request for permanent injunction for "all subsequent
Texas General Elections" 5
B.

therefore constitute a live dispute.

Applicable Law

1.

Rule 12(b)(6)

A Rule 12(b) (6)
pleadings

and

is

motion tests the formal sufficiency of the

"appropriate

when

a

defendant

attacks

the

complaint because it fails to state a legally cognizable claim."
Ramming v. United States, 281 F. 3d 158, 161 (5th Cir. 2001), cert.
denied sub nom. Cloud v. United States, 122 S. Ct. 2665 (2002).

To

defeat a motion to dismiss a plaintiff must plead "enough facts to
state a claim to relief that is plausible on its face."
Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).

The court

generally is not to look beyond the pleadings in deciding a motion
to dismiss.
1999).

Spivey v.

Robertson,

774

(5th Cir.

The court does not "strain to find inferences favorable to

the plaintiffs"

or

"accept

conclusory allegations,

deductions, or legal conclusions."

5

197 F.3d 772,

Id. at 10

~

18.
-6-

unwarranted

Southland Securities Corp. v.

INSpire Ins.

Solutions,

Inc.,

365 F. 3d 353,

361

(5th Cir.

(internal quotation marks and citations omitted) .
required to dismiss, pursuant to
invalid legal theories,
pleaded."

Flynn v.

[Rule 12(b) (6)],

2004)

"[C] ourts are
claims based on

even though they may be otherwise well-

State Farm Fire and Casualty Insurance Co.

(Texas), 605 F. Supp. 2d 811, 820 (W.D. Tex. 2009)

(citing Neitzke

v. Williams, 109 S. Ct. 1827, 1832 (1989)).

2.

Constitutional Violations

Plaintiffs

allege

violations

of

the

First

and

Fourteenth

Amendments and their parallels in the Texas Constitution.

The

Texas Supreme Court has held that "'the federal analytical approach
applies

to

equal

Constitution.'"
233

protection

challenges

under

the

Texas

Lindquist v. City of Pasadena Texas, 669 F.3d 225,

(5th Cir. 2012)

(citing Bell v. Low Income Women of Texas, 95

S.W.3d 253, 266 (Tex. 2002).

When it comes to free speech, "unless

a

the

party

can

article I,

show

through

section 8,

text,

history,

and

purpose

of

that the state constitution affords more

protections than the First Amendment in regard to that case, courts
should assume that free speech protections are the same under both
constitutions."

Democracy Coalition v. City of Austin, 141 S.W.3d

282, 297 (Tex. App.-Austin 2004, no pet.).
not attempt

to differentiate

state

from

Because Plaintiffs do
federal

constitutional

protections concerning ballot-access provisions, their claims will
be addressed under the federal analytical approach as it has been
-7-

applied to state election laws.

See Burdick v. Takushi, 112 S. Ct.

2059 (1992); Anderson, 103 S. Ct. 1564.
3.

The Anderson-Burdick Standard

"It is beyond cavil that 'voting is of the most fundamental
significance under our constitutional structure.'"
S.

Ct.

at 2063

Workers Party,
however,

(quoting Illinois Bd.
99 S. Ct. 983, 990

Burdick, 112

of Elections v.

(1979)).

Socialist

"It does not follow,

that the right to vote in any manner and the right to

associate for political purposes through the ballot are absolute."
Id.

(citing Munro v. Socialist Workers Party, 107 S. Ct. 533, 536

(1986).

For instance, the need to preserve the order and integrity

of the electoral process must be weighed against an individual's
desire to nominate a beloved pet or fictional character.

Ballot-

access provisions allow States to regulate elections but inherently
limit voting rights.

As a practical matter, such laws could hardly

serve their legitimate purposes if they were routinely subject to
strict scrutiny.

See id.

("to subject every voting regulation to

strict scrutiny and to require that the regulation be narrowly
tailored to advance a compelling state interest . . . would tie the
hands of States

seeking to assure

that elections are operated

equitably and efficiently").
The United States Supreme Court recognized the need for a more
flexible analytical framework in two landmark cases:
Burdick.

Anderson and

These cases establish the appropriate methodology for
-8-

assessing state election laws.
F.3d 178,

182-84

methodology,

(5th Cir.

Texas Independent Party v. Kirk, 84
Under the Anderson-Burdick

1996).

"the extent to which a challenged regulation burdens

First and Fourteenth Amendment rights" determines "the rigorousness
of

[the]

inquiry into the propriety of a

Burdick, 112 S. Ct. at 2063.

state election law."

As the Court put it:

[A]s we have recognized when those rights are subjected
to
"severe"
restrictions,
the regulation must be
"narrowly drawn to advance a state interest of compelling
importance." Norman v. Reed,
. 112 S. Ct. 698, 705
(1992).
But when a state election law provision
imposes only "reasonable, nondiscriminatory restrictions"
upon the First and Fourteenth Amendment rights of voters,
"the State's important regulatory interests are generally
sufficient to justify" the restrictions. Anderson,
103 S. Ct., at 1569-1570; see also id., . . . 103 S. Ct.,
at 1569-1570, n.9.
Id. at 2063-64.
Applying the Anderson-Burdick approach and similar reasoning
courts have repeatedly upheld the general statutory scheme enacted
in the Texas Election Code,

along with several of the specific

statutes challenged by Plaintiffs, as applied to minor-party and
independent candidates.

See American Party of Texas v. White, 94

S. Ct. 1296, 1305-06 (1974); see also Texas Independent Party, 84
F.3d at 180; Nader v. Connor, 332 F. Supp. 2d 982, 984 (W.D. Tex.),
aff'd, 388 F.3d 137 (5th Cir. 2004).
In Nader a well-known independent presidential candidate and
several would-be voters sought an injunction to gain ballot access
after

the

submitting

candidate
signed

missed

the

petitions.

May
332

-9-

10,
F.

2004,
Supp.

deadline
2d

at

for

983-85.

Plaintiffs challenged the constitutionality of the ballot-access
provisions under the First and Fourteenth Amendments.
court,

citing

Supreme

Court

precedent,

noted

Id.

that

The

"[m]ore

restrictive signature and deadline requirements for an independent
candidate may be justified if the ballot-access requirements, as a
whole, are reasonable and similar in degree to those for a minor
political-party candidate."
at 1274).

Id. at 988 (citing Storer, 94 S. Ct.

The court held:

The independent candidate ballot-access requirements
preserve the integrity of the electoral process and
regulate[] the number of independent candidates on the
ballot by ensuring that (1) the electorate is enough
aware of the candidate either to know his views or to
learn and approve of them in a short period, and (2) that
at least a minimum of registered voters are willing to
take him and his views seriously. These justifications
advanced by the State of Texas for the signature and date
requirements are sufficient under the standard announced
in Anderson and Burdick. Therefore, the Court concludes
that the requirements of the Texas Election Code for
ballot access by an independent presidential candidate
are reasonable, nondiscriminatory, and constitutional as
based upon [] Texas's important regulatory interests.
Id. at 992.
(d)

of

§

requirement

The court upheld subsections (a),
192.032,

concluding

satisfie [d]

the

that
mandate

(b) (3) (A),

"[s]tanding
of

the

(c), and

alone,

each

Constitution.

Considered together, they d[id] not create the manifest injustice
and discrimination urged by

[the plaintiff]

test

Id.

of

Anderson-Burdick."

plaintiffs injunctive relief.

Id.

The

and satisf[ied]

court

then

denied

the
the

The Fifth Circuit affirmed the

district court on appeal and expressly approved its reasoning.
Nader v. Connor, 388 F.3d 137, 137-38 (5th Cir. 2004).
-10-

This court is bound by the decisions of the Supreme Court and
the Fifth Circuit as they apply to Plaintiffs' claims.

Although

the broad statutory scheme of the Texas Election Code as applied to
independent presidential candidates has been upheld, the court will
consider Plaintiffs' challenges to specific provisions that courts
have not yet addressed.

Plaintiffs' remaining claims are therefore

analyzed under the Anderson-Burdick framework.

c.

Application

Plaintiffs challenge several provisions, each of which falls
into one of four categories:
lines

and

signature

candidates,

(1)

requirements

application and petition deadfor

independent

presidential

(2) requirements concerning running mates,

(3) formal

application requirements, and (4) write-in candidacy requirements.
1.

Application and Petition Provisions

Plaintiffs challenge the portions of

§

192.032 of the Texas

Election Code that require independent presidential candidates to
apply for a place on the ballot, obtain signatures in support of
their candidacies totaling at least one percent of the total vote
received in the state by all candidates for president in the most
recent

presidential

application

by

election year.

the

general
second

election,

Monday

in

and
May

of

file
the

a

completed

presidential

Plaintiffs claim that the signature requirements

and early deadline are unduly burdensome and discriminate against
independent candidates.
-11-

Plaintiffs'

arguments

plaintiffs in Nader.

are

analogous

to

those made by the

The portions of the Election Code addressed

by the courts in Nader remain substantially unchanged since 2004.
The Fifth Circuit's decision therefore binds this court.

Because

the only substantive difference between the circumstances of the
plaintiffs in Nader is that the Plaintiffs in this case did not
even submit a petition or attempt to gain ballot access through any
method other than injunction,

Plaintiffs'

challenge fails as a

matter of law.
Plaintiffs challenge the statutory requirement that supporters
who

sign

their

petition

refrain

from

participating

in

a

presidential primary election in the same presidential election
year.

Predecessor provisions in the Texas Election Code to that

effect have been upheld by the United States Supreme Court as
applied to minor parties.

White, 924 S. Ct. at 1308 (1974)

Court

"the State may determine

in White held that

that

The
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."

Id.

Because the requirements for an

independent candidate are reasonable and identical to those for a
minor
§§

political-party

candidate,

the

court

concludes

that

192.032(f) and 192.032(g) are constitutional both facially and

as applied.

-12-

2.

Requirements for Vice-Presidential Running Mates

Plaintiffs challenge provisions requiring that presidential
candidates name vice-presidential running mates to be included on
their petitions, applications, and, ultimately, ballots.

In their

Amended Complaint, Plaintiffs do not allege any facts in support of
their

claim

that

discriminatory.

these

requirements

are

unduly

burdensome

or

Two of the statutes, § 192.033(a) and§ 192.034(a),

apply to both independent and party-affiliated candidates and place
no burden on would-be candidates except that they name a running
mate. 6

The remaining statutes, §§ 192.032(b) (1) (B) and (b) (3) (B),

which require certain personal information and statements of consent
from both the candidate and her running mate, have parallels in the
party-affiliated candidate requirements,

7

and impose only a minimal

burden on would-be candidates.
The requirement is less burdensome than it might first appear
because vice-presidential nominees may be replaced. 8

Nothing, for

example, would prevent Faas from selecting a surrogate candidate
who could later withdraw.

The burden of finding a running mate is

hardly

is

unreasonable

and

arguably

6

less

difficult

for

an

At least one other court has upheld a state law prohibiting
solo presidential or vice-presidential candidacies.
See Gelineau
v. Johnson,
904 F. Supp. 2d 742, 745-50 (W.D. Mich. 2012)
(summarizing the history of straight-ticket voting in presidential
elections and recognizing states' interests in prohibiting solo
candidacies) .
7

See Tex. Elec. Code, § 192.031(a)

8

See Tex. Elec. Code, § 192.064.
-13-

independent candidate who does not need party approval

of

her

Because the requirements are reasonable and similar in

choice.

degree to those of party-affiliated candidates, the court concludes
that the statutes are constitutional both facially and as applied.
3.

Additional Qualifications

Plaintiffs claim that

141.031 (a) (4) (K) is unconstitutional

§

because it places on presidential candidates a qualification not
found in Article II, clause 4 of the United States Constitution by
requiring

that

they

swear

an

oath

to

support

and

defend

the

Constitution and laws not only of the United States but also of the
State of Texas.

Plaintiffs cite to a Supreme Court case striking

down an Arkansas ballot-access provision deemed to be an indirect
effort to impose term limits on members of Congress.
Limits,

Inc. v. Thornton,

115 S. Ct.

1842

(1995).

U.S.

Term

The Court in

Thornton held that "[a] llowing individual States to adopt their own
qualifications for congressional service would be inconsistent with
the Framers' vision of a uniform National Legislature representing
the people of the United States."

Id. at 1845.

The Court's reasoning in Thornton is applicable to ballotaccess

provisions

creating

presidential candidates.

on

the

unconstitutional.

ballot
But

qualifications

for

If presidential candidates were required

to swear the oath contained in
placed

additional

§

141.031(a) (4) (K)

in

Texas,

the

Code
-14-

the

in order to be

provision

provides

an

could

exception

be
for

candidates for federal office.

It expressly permits the secretary

of state to "prescribe a different form for an application for
an office of
§ 141.031(d) (1).

the federal

government."

Tex.

Elec.

Code

The most recent application form for independent

presidential candidates available on the Texas Secretary of State's
website,

for

example,

does

not

contain

the

oath.

9

Because

Plaintiffs do not allege that Faas was required to complete an
application containing the oath or that she was otherwise subjected
to the unconstitutional qualification, her claim fails as a matter
of law.
4.

Write-in Deadline

Plaintiffs challenge§ 146.025(a) (1) of the Code, which sets
a
"5

deadline
p.m.

of

for
the

filing

a

declaration of

78th day before

general

write-in

candidacy

election day."

of

Fa as

complains that the only option available to her as a result of her
inability to meet the requirements for inclusion on the ballot as
an independent candidate is a write-in candidacy. 10

However, she

fails to explain how the later deadline for write-in candidates is
unconstitutional either facially or as applied.

Because the write-

in deadline is reasonable and applies equally to all candidates,
the court concludes that it is constitutional both facially and as
applied.

9

"Independent
Candidate's
Application
for
President,"
available at http://www.sos.state.tx.us/elections/forms/dw1-3.pdf.
10

Plaintiffs' Amended Complaint, Docket Entry No. 22, p. 9
-15-

~

15.

5.

Remaining Claims

"Section

1983

merely

provides

a

mechanism

for

enforcing

individual rights 'secured' elsewhere, i.e., rights independently
'secured by the Constitution and laws'
Gonzaga University v.

Doe,

122 S.

Ct.

of

the United States."

2268,

2276

( 2002) .

The

challenged statutes pass constitutional muster, and Plaintiffs have
pled no other violation of rights.

Plaintiffs' § 1983 claims will

therefore be dismissed.
Attorney's fees may be awarded to a "prevailing party" in a
§ 1983 action.

42 U.S.C. § 1988(b).

Because Plaintiffs have not

prevailed on any claim, no award of fees is authorized by§ 1988.
III.

Conclusions and Order

For the reasons stated above, Defendants' Motion to Dismiss
(Docket Entry No.

23)

is GRANTED.

Plaintiffs'

claims will be

DISMISSED with prejudice.
SIGNED at Houston, Texas, on this 5th day of December, 2016.

UNITED STATES DISTRICT JUDGE

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