Bilyeu et al v. Esparza et al

Filing 71

ORDER GRANTING IN PART AND DENYING IN PART 64 Motion to Dismiss for Failure to State a Claim; and IT IS FURTHER ORDERED that Plaintiff Desarae Lindsey is TERMINATED as a party in this case. Signed by Judge Robert Pitman. (cc3)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
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 JOSÉ
A. ESPARZA, in his official capacity as the Deputy
Secretary of State of the State of Texas,
Defendants.

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1:21-CV-1089-RP

ORDER
Before the Court is Defendants Jane Nelson and José A. Esparza’s1 (“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
Nelson and Esparza are sued in their official capacities as Texas Secretary of State and Deputy Secretary of
State, respectively.
1

1

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.

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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).

This regulation was further modified on June 18, 2023, when Governor Greg Abbott signed S.B. 994 into
law. Acts 2023, 88th Leg., R.S., Ch. 1150 (S.B. 994). The new changes allow the Secretary of State to
disqualify candidates for failure to pay the filing fee or submit a petition, a decision that was previously
assigned only to the nominating parties. S.B. 994 is now codified in Sections 145.003 and 145.036 of the
Texas Election Code.
2

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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
3

During the interim period, Plaintiffs filed their second and third amended complaints. (See Dkts. 46, 57).

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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

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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 speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
A claim has facial plausibility “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. A court ruling on a 12(b)(6) motion may rely on the
complaint, its proper attachments, “documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338
(5th Cir. 2008) (citations and internal quotation marks omitted). A court may also consider
documents that a defendant attaches to a motion to dismiss “if they are referred to in the plaintiff’s
complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004). But because the court reviews only the well-pleaded facts in the complaint, it may not
consider new factual allegations made outside the complaint. Dorsey, 540 F.3d at 338. “[A] motion to
dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.’” Turner v. Pleasant, 663 F.3d
770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir.
2009)).

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III. DISCUSSION
A. Plaintiffs’ Damages Claims Are Barred by Sovereign Immunity
Plaintiffs’ claims for damages are barred by sovereign immunity. In their complaint, Plaintiffs
request compensatory damages to recover the filing fees that the Texas Election Code “wrongfully
imposed on them, and Defendants . . . have or will enforce against Plaintiffs.” (4th Am. Compl.,
Dkt. 61, at 17–18). Defendants, who are sued in their official capacities as officers of the state, are
entitled to sovereign immunity. City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019). Suits
against these employees are effectively suits against the state, which are barred by sovereign
immunity subject only to limited exceptions. See id.; Green v. State Bar of Tex., 27 F.3d 1083, 1087–88
(5th Cir. 1994).
Plaintiffs’ claim for declaratory and injunctive relief falls within the Ex parte Young exception
to immunity, which Defendants do not contest. 209 U.S. 123 (1908); Va. Off. for Prot. & Advoc. v.
Stewart, 563 U.S. 247, 255 (2011) (noting Ex parte Young is available where a plaintiff “alleges an
ongoing violation of federal law and seeks relief properly characterized as prospective”). However,
the Ex parte Young exception applies only to prospective relief, not claims for monetary damages. See
J.E. ex rel. Williams v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020). While Plaintiffs’ injunctive claims may
proceed, their claims for monetary damages against officials of the state are barred by sovereign
immunity and must be dismissed.4
B. Plaintiffs’ Procedural Due Process Claim
Next, the Court briefly addresses Plaintiffs’ Procedural Due Process claim. In their Fourth
Amended Complaint, Plaintiffs allege that the recent changes to Texas’s Election Code violate
“rights guaranteed by the Due Process & Equal Protection Clauses.” (4th Am. Compl., Dkt. 61, at

Plaintiff Desarae Lindsey brings claims only for past filing fees and alleges that she has since moved to
California. (4th Am. Compl., Dkt. 61, at 5). As she has no valid prospective claim for relief and her monetary
damages claim is barred by sovereign immunity, the Court will dismiss her as a party in this case.
4

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20). However, Plaintiffs note in a footnote in their response to the motion to dismiss that “[t]o the
extent Plaintiffs did assert a claim under Procedural Due Process, they withdraw it.” (Dkt. 67 at 2
n.1). Accordingly, because that claim has been withdrawn, Defendants’ motion to dismiss the
Procedural Due Process claim is moot.5
C. First Amendment Claims
1. Plaintiffs Allege No Valid Speech Injury
Plaintiffs allege that Texas Election Code Section 181.0311 intrudes on their rights of speech
and association by prohibiting a candidate from being considered unless the filing fee or petition
requirement has been met. (4th Am. Compl., Dkt. 61, at 15). As a result, candidates must decide by
“the second Monday in December of an odd-numbered year” whether they will seek nomination at
a third-party convention. Tex. Elec. Code § 172.023(a) (setting deadline for primary party
candidates); id. at § 181.033 (setting deadline for third-party candidates to be the same as primary
party candidates). In their response, Plaintiffs argue that this regulation “effectively makes payment
of the filing fee or submission of signed petitions a prerequisite for a Qualified Convention Party to
even think about, much less debate, the merits of an individual candidate for nomination for a
particular office at convention.” (Resp., Dkt. 67, at 8).
For the reasons stated in its preliminary injunction order, Plaintiffs do not allege a First
Amendment speech injury. (Order, Dkt. 34, at 8–9). As the Court held:
If [Plaintiffs’ interpretations] were the meaning of the law at issue,
Plaintiffs would likely have a stronger case. But Defendants note, and
the Court agrees, that § 181.0311 does not go so far. It does not
regulate how parties conduct their conventions, nor regulate anyone’s
speech. Rather, it creates a series of steps an individual must take to be
put up for election at the convention, just as elsewhere the election
code imposes requirements for primary party candidates to be placed
on their respective primary ballots. It does not restrict a party from
See also Richardson v. Tex. Sec’y of State, 978 F.3d 220, 235 (5th Cir. 2020) (“Because Anderson/Burdick—unlike
Eldridge—appropriately accounts for the state’s interest in regulating voting, it provides the appropriate test
for procedural due process claims challenging election laws.”).
5

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nominating anyone who meets these requirements. The statute
therefore only regulates the limited act of selecting names to place on
the general election ballot and is unlikely to constitute and intrusion
into internal party activities. A party remains free to host any speakers
or discussions at its convention that it chooses so long as those
“considered”—effectively, those placed on the primary ballot—follow
the statutory requirements. The same is required of primary parties and
their candidates.
(Id. at 8) (internal citations omitted).
Put another way, Plaintiffs do not describe a restriction on their First Amendment speech.
See Voting for Am., Inc. v. Steen, 732 F.3d 382, 392 (5th Cir. 2013) (“[N]ot every procedural limit on
election-related conduct automatically runs afoul of the First Amendment. The challenged law must
restrict political discussion or burden the exchange of ideas.”) (emphasis in original). Plaintiffs
remain welcome to discuss and debate anyone they choose to discuss at their nominating
convention, and the state will not (and cannot) punish them for that speech. Discussing ineligible
candidates will likely be pointless, and conventions will presumably choose to discuss only eligible
candidates, but that does not transform the eligibility requirement into a regulation of speech. See
Burdick v. Takushi, 504 U.S. 428, 438 (1992) (“Attributing to elections a more generalized expressive
function would undermine the ability of States to operate elections fairly and efficiently.”).
2. Plaintiffs Allege a Valid Freedom of Association Claim
While Plaintiffs’ complaint and Defendants’ motion to dismiss both focus on the restrictions
on Plaintiffs’ speech, Plaintiffs also allege a violation of their right to freely associate. (See 4th Am.
Compl., Dkt. 61, at 2 (Texas election code “severely infringe[s] on Plaintiffs’ rights of . . .
association[.]”); id. at 21 (“[T]he Challenged Law impermissibility infringes on Plaintiffs’ First
Amendment rights of speech and association.”)); see also Johnson v. City of Shelby, 574 U.S. 10, 11
(2014) (federal rules “do not countenance dismissal of a complaint for imperfect statement of the
legal theory supporting the claim asserted.”). Texas Election Code § 181.0311 regulates Plaintiffs’
associational rights, as it requires Plaintiffs to pay a filing fee month in advance of their nominating
9

convention. See Anderson v. Celebrezze, 460 U.S. 780, 793 (1983) (“A burden that falls unequally on
new or small political parties or on independent candidates impinges, by its very nature, on
associational choices protected by the First Amendment.”); Burdick, 504 U.S. at 439 (“[T]he State’s
ban on write-in voting imposes only a limited burden on voters’ rights to make free choices and to
associate politically through the vote.”). Accordingly, while Plaintiffs do not allege a valid claim for
restriction of their free speech rights, their First Amendment challenge can proceed under their
freedom of association claim.
Because Plaintiffs allege a restriction on their right to freely associate, the Court analyzes
Texas Election Code § 181.0311 under the Anderson/Burdick test. See Anderson, 460 U.S. at 789;
Burdick v. Takushi, 504 U.S. at 434. Under that test, a court first considers the “character and
magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments
that the plaintiff seeks to vindicate.” Anderson, 460 U.S. at 789. That is then weighed against “the
precise interests put forward by the State as justifications for the burden imposed by its rule.” Id.
“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. Indep.
Party v. Kirk, 84 F.3d 178, 182 (5th Cir. 1996) (citing Burdick, 504 U.S. at 434). Provisions that
“impose ‘severe restrictions’ . . . must be ‘narrowly drawn’ and support ‘compelling’ state interests,
whereas ‘reasonable, nondiscriminatory restrictions’ require only ‘important regulatory interests’ to
pass constitutional muster.” Meyer v. Texas, No. H-10-3860, 2011 WL 1806524, at *3 (quoting
Burdick, 504 U.S. at 434). After weighing those factors, the court can decide whether the challenged
provisions are unconstitutional. Anderson, 460 U.S. at 789.
Defendants allege that dismissal is appropriate under the Anderson/Burdick framework
because Texas’s election restrictions present a reasonable, nondiscriminatory burden that advances
legitimate governmental interests. (Mot. Dismiss, Dkt. 64). As a general matter, however, dismissal

10

under the Anderson/Burdick framework is rarely appropriate at the 12(b)(6) stage. That framework
requires balancing the “character and magnitude” of Plaintiffs’ injury against the “the precise
interests put forward by the State as justifications” for the rule. Anderson, 460 U.S. at 789. That level
of factual balancing is particularly difficult in a 12(b)(6) motion, where the Court must view facts in
the light most favorable to Plaintiffs and limit its consideration to the four corners of Plaintiffs’
complaint. In re Katrina Canal Breaches Litig., 495 F.3d at 205; Villarreal v. Wells Fargo Bank, N.A., 814
F.3d 763, 766 (5th Cir. 2016) (“A district court is limited to considering the contents of the
pleadings and the attachments thereto when deciding a motion to dismiss under Rule 12(b)(6).”).
Perhaps for that reason, Defendants’ citations almost exclusively refer to cases that deal with
evidentiary challenges to the merits of the case, whether at summary judgment, in a preliminary
injunction proceeding, or at trial. (See Mot. Dismiss, Dkt. 64).6 The few cases in the Fifth Circuit to
consider 12(b)(6) motions to an Anderson/Burdick challenge have all done so in conjunction with a
preliminary injunction.7 Other district courts in this circuit, including this one, have explicitly
deferred consideration of plausible ballot challenges on similar grounds. See Miller v. Doe, 422 F.
Supp. 3d 1176, 1185 (W.D. Tex. 2019); Veasey v. Perry, 29 F. Supp. 3d 896, 922 (S.D. Tex. 2014)
(“This case is not yet at a posture that sufficiently informs the Court of the character and magnitude

See, e.g., Richardson, 978 F.3d at 222 (granting stay of preliminary injunction pending appeal); SAM Party of
N.Y. v. Kosinski, 987 F.3d 267, 277 (2d Cir. 2021) (affirming denial of preliminary injunction); Kucinich v. Tex.
Democratic Party, 563 F.3d 161, 167–68 (5th Cir. 2009) (bench trial); Kirk, 84 F.3d at 184–87 (summary
judgment); Crawford v. Marion Cnty. Elec. Bd., 553 U.S. 181 (summary judgment).
7 Lewis v. Hughs, 475 F. Supp. 3d 597 (W.D. Tex. 2020) (denying 12(b)(6) motion along with preliminary
injunction), aff’d and remanded, No. 20-50654, 2020 WL 5511881 (5th Cir. Sept. 4, 2020), order withdrawn, No.
20-50654, 2020 WL 6066178 (5th Cir. Oct. 2, 2020), rev’d and remanded sub nom. Lewis v. Scott, 28 F.4th 659 (5th
Cir. 2022) (dismissing for lack of jurisdiction under Ex parte Young); Tex. All. for Retired Americans v. Hughs, 489
F. Supp. 3d 667 (S.D. Tex. 2020) (denying all 12(b)(6) as to voting challenge), rev’d in part, vacated in part sub
nom. Tex. All. for Retired Americans v. Scott, 28 F.4th 669 (5th Cir. 2022) (reversing for lack of jurisdiction under
Ex parte Young); Tex. Democratic Party v. Scott, 617 F. Supp. 3d 598 (W.D. Tex. 2022) (granting dismissal
following remand of preliminary injunction), aff’d sub nom. Cascino v. Nelson, No. 22-50748, 2023 WL 5769414
(5th Cir. Sept. 6, 2023), cert. denied, No. 23-612, 2024 WL 1706020 (U.S. Apr. 22, 2024). One district court
granted dismissal pursuant to Rule 12(b)(6), but did so on the basis that the Fifth Circuit had affirmed the
constitutionality of identical provisions. Faas v. Cascos, 225 F. Supp. 3d 604, 612–13 (S.D. Tex. 2016).
6

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of the asserted injury. Thus no decision may be made at this juncture regarding the level of scrutiny
to be afforded to [the challenged] restrictions.”).
Like the courts in Veasey and Miller, this Court is not yet in a position to fairly evaluate the
burdens and justifications of the challenged provisions. The only uncontested issue is that Section
181.033 is nondiscriminatory because the Texas Election Code applies the same deadlines and filing
fee requirement to all parties. Tex. Elec. Code § 172.023(a) (setting deadline for primary party
candidates); id. at § 181.033 (setting same deadline for all other candidates). Beyond that element,
however, the parties raise factual disputes. Plaintiffs allege that Section 181.033 lacks any justification
while Defendants allege that it furthers the State’s interest in preventing an overcrowded ballot.
(Compare 4th Am. Compl., Dkt. 61, at 20 (“Those burdens are not justified by any rational basis or
reasonable relationship to the State’s interests.”), with Mot. Dismiss, Dkt. 64, at 6 (“The challenged
deadline advances Defendants’ legitimate interests in . . . ensuring that the candidates demonstrate
sufficient public support to gain access to the convention.”)).
As this remains a 12(b)(6) motion, all plausible inferences must be drawn in favor of
Plaintiffs. In re Katrina Canal Breaches Litig., 495 F.3d at 205. Plaintiffs have alleged that the early filing
fee deadline burdens their ability to freely associate and is not justified by any policy goals. (4th Am.
Compl., Dkt. 61). It is plausible that a deadline of the second Wednesday in December before the
election year unconstitutionally burdens Plaintiffs without advancing the State’s purported interests.
The Court is cognizant that it should “[give] little weight to the interest the candidate and his
supports may have in making a late rather than an early decision to seek independent ballot status.”
Burdick, 504 U.S. at 437 (citing Storer v. Brown, 415 U.S. 724, 736 (1974)). Still, that burden is entitled
to some weight, and the Court cannot say that the burden is so marginal that it is constitutionally
irrelevant as a matter of law. The Court must accept at this stage that the burdens are as severe as
Plaintiffs claim and cannot yet decisively evaluate the evidentiary connection between that burden

12

and advancement of the State’s goals. Because Section 181.033 plausibly sets the filing fee deadline
unconstitutionally early, the Court will deny the 12(b)(6) motion.
D. Challenge to Texas’s Filing Fee Structure
1. The Anderson/Burdick Framework Applies
Plaintiffs also bring a Fourteenth Amendment claim against Texas’s filing fee structure. In
Texas, primary party candidates pay their filing fees to their party, which then uses those fees to
reimburse the costs incurred in the primary election. See Tex. Elec. Code §§ 173.033–.034. By
contrast, third-party candidates pay their filing fees to the state or county, who keep the fees. Third
parties must then fund their own conventions, without any rebate from their filing fees. Tex. Elec.
Code § 181.0311. Plaintiffs allege that this unequal structure places a heightened burden on third
parties and violates the Due Process and Equal Protection Clauses of the U.S. Constitution. (4th
Am. Compl., Dkt. 61, at 16). Plaintiffs do not allege that this fee structure violates their freedom of
association. (See id.).
Plaintiffs’ heading references both due process and equal protection, but the body of their
complaint appears to only mention equal protection. The result is that Defendants solely move to
dismiss the equal protection claim on the basis that the parties are not similarly situated, and
therefore cannot claim an equal protection violation. (Mot. Dismiss, Dkt. 64, at 8 (“Plaintiffs cannot
establish an equal protection violation without first establishing that they are similarly situated to the
primary parties or their candidates.”)).
As the Fifth Circuit has stated, Anderson and Burdick “based their approach ‘on the
fundamental rights strand of equal protection analysis.’” Richardson v. Tex. Sec’y of State, 978 F.3d 220,
233 (5th Cir. 2020) (quoting Anderson, 460 U.S. at 787). Claims under the Fourteenth Amendment
relating to ballot access, then, fall under the specific Anderson/Burdick framework rather than a more
generalized equal protection analysis. See id. at 233–34 (“For several reasons, the Anderson/Burdick

13

framework provides the appropriate test for the plaintiffs’ due process claims.”); id. at 234 (“[O]ur
sister circuits . . . apply Anderson/Burdick to all Fourteenth Amendment challenges to election laws.”).
Plaintiffs do not challenge just their alleged differential treatment, but also the restriction on their
fundamental rights to vote and run for office, and that Fourteenth Amendment challenge must be
analyzed under the Anderson/Burdick test. See id.; Obama for America v. Husted, 697 F.3d 423, 429–30
(6th Cir. 2012) (“However, when a state regulation is found to treat voters differently in a way that
burdens the fundamental right to vote, the Anderson/Burdick standard applies.”). Accordingly, the
Anderson/Burdick framework applies to Plaintiffs’ Fourteenth Amendment challenge, and the Court
will not dismiss Plaintiffs’ claims on the basis that third parties are not similarly situated to primary
parties.
2. The Filing Fee Structure Plausibly Fails the Anderson/Burdick Test
Finding that the Anderson/Burdick test applies, the Court turns to the merits of Defendants’
arguments. (See Mot. Dismiss, Dkt. 64, at 10 (“[T]he challenged provisions pass the Anderson/Burdick
test because they are reasonable, nondiscriminatory, and advance legitimate government interests.”)).
Here, Section 181.031 is likely discriminatory compared to Section 172.021. See Tex. Elec. Code §§
171.021, 181.031. The Texas Election Code allows primary parties to use their fees to offset the cost
of hosting a primary, while third parties must pay the filing fee and the full cost of their nominating
convention. Id. This is differential treatment: Texas is potentially requiring third-party candidates to
pay more to run for office than primary candidates. It is also plausible that the regulation is
unreasonable, as it appears to lessen the financial burden of candidacy for primary party candidates
but not for third parties.
Defendants raise plausible defenses, suggesting the different filing fee structures are
reasonable and advance an important state interest because primaries are more costly than
conventions. (Defs.’ Reply, Dkt. 68, at 8 (“Candidates running for office participate in publicly

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funded elections and their collected filing fees help prevent overcrowding on ballots from
nonserious candidates and further the State’s interest in providing funding to political parties in
corresponding relation to their demonstrated level of public support.”)). Again, those factual
defenses are premature because they rest on an evaluation of the parties’ competing evidence, not on
the plausibility of Plaintiffs’ claims. It is a reasonable possibility that, by providing filing fee rebates
to primary parties but not to third parties, Texas’s election code imposes a significant burden on the
cost of third-party nominations. Similarly, it is a reasonable possibility that this filing fee structure
does little to advance Texas’s interest in preventing ballot overcrowding or ensuring public support.
Under the fact-intensive Anderson/Burdick inquiry, it is plausible that Section 181.031 does not pass
constitutional muster.
Defendants raise two final arguments. First, they argue that Plaintiffs ignore “that they could
receive the reimbursements they claim they are denied if they obtained sufficient support” to
become a primary party. (Mot. Dismiss, Dkt. 64, at 8 (citing Jenness v. Fortson, 403 U.S.
431, 441–42 (1971))). However, Texas law determines primary or third-party status based on the
results of the prior election. Tex. Elec. Code § 172.002. As Plaintiffs have not yet achieved the
requisite threshold to become a primary party, their claims are not yet moot. Defendants are correct
that a state may impose certain additional burdens on third parties without automatically violating
the Constitution. See Jenness, 403 U.S. at 441. Still, Defendants must show that those additional
burdens are constitutional under the Anderson/Burdick test. The mere fact that a state is given some
leeway in regulating third parties does not automatically render all burdens placed upon them
reasonable.
Last, Defendants contend that “requiring Plaintiffs . . . to conduct statewide, expensive
primary elections would likely run afoul of the ballot-access standards established by the [United
States] Supreme Court that prohibit States from requiring third parties to establish the same

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elaborate party machinery required of primary parties.” (Mot. Dismiss, Dkt. 64, at 9). Here, Plaintiffs
do not ask the Court to order Texas to require primary elections for third parties. (See 4th Am.
Compl., Dkt. 61). Rather, Plaintiffs seek a declaration that certain burdens placed on their
nominating conventions are unconstitutional. (See id.). Accordingly, there is no risk that Plaintiffs’
claims will unconstitutionally require them to participate in primary elections.
IV. CONCLUSION
For these reasons, IT IS ORDERED that Defendants’ Motion to Dismiss, (Dkt. 64), is
GRANTED IN PART and DENIED IN PART. Specifically, the Court GRANTS Defendants’
motion to dismiss Plaintiffs’ claim for monetary damages. Further, to the extent Plaintiffs plead a
Procedural Due Process claim, that claim is WITHDRAWN, and Defendants’ motion to dismiss
those claims is MOOT. The motion to dismiss is DENIED as to all other claims.
IT IS FURTHER ORDERED that Plaintiff Desarae Lindsey is TERMINATED as a
party in this case.
SIGNED on June 5, 2024.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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