Petition for Writ of Certiorari — Mark Miller, et al., Petitioners v. Jane Nelson, Texas Secretary of State, et al.
Supreme Court briefFeb 7, 2025
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NO. 24-_____
In the
Supreme Court of the United States
MARK MILLER, ET AL.,
Petitioners,
v.
JANE NELSON, IN HER OFFICIAL CAPACITY AS THE
SECRETARY OF STATE OF THE STATE OF TEXAS, ET AL.,
Respondents.
__________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Michael P. Mitchell
Oliver B. Hall
Counsel of Record
Theresa Amato
ALLEN OVERY SHEARMAN
STERLING US LLP
1101 New York Avenue, NW CENTER FOR COMPETITIVE DEMOCRACY
Washington, DC 20005
P.O. Box 21090
(202) 508-8000
Washington, DC 20009
(202) 248-9294
oliverhall@competitivedemocracy.org
February 7, 2025
SUPREME COURT PRESS
Counsel for Petitioners
♦
(888) 958-5705
♦
BOSTON, MASSACHUSETTS
i
QUESTIONS PRESENTED
It is undisputed that a state may not condition
participation in its elections on the payment of a fee.
In this case, the uncontroverted evidence establishes
that a minor political party or independent candidate
for statewide office must spend substantial funds—
hundreds of thousands of dollars or more—to comply
with the requirements to appear on the general election
ballot in Texas.
The Questions Presented Are:
1. Whether a statutory scheme that compels
candidates and political parties to spend substantial
funds to qualify for the ballot violates the First and
Fourteenth Amendments?
2. Whether a statutory scheme that compels
candidates and political parties to spend substantial
funds to qualify for the ballot imposes a “severe” burden
under the Anderson-Burdick framework?
ii
PARTIES TO THE PROCEEDINGS
Petitioners
(Plaintiff-Appellees/Cross-Appellants below)
●
Mark Miller
●
Scott Copeland
●
Laura Palmer
●
Tom Kleven
●
Andy Prior
●
America’s Party of Texas
●
Constitution Party of Texas
●
Green Party of Texas
●
Libertarian Party of Texas
Respondents
(Defendant-Appellants/Cross-Appellees below)
●
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 State of the State of Texas
iii
CORPORATE DISCLOSURE STATEMENT
Petitioners Mark Miller, Scott Copeland, Laura
Palmer, Tom Kleven and Andy Prior are individuals.
Petitioners America’s Party of Texas, Constitution
Party of Texas, Green Party of Texas and Libertarian
Party of Texas do not have parent corporations and no
publicly held corporation owns 10 percent or more of
their respective stock.
iv
LIST OF PROCEEDINGS
U.S. Court of Appeals for the Fifth Circuit
No. 23-50537
Mark Miller et al., Plaintiffs-Appellees/ Cross-Appellants v. Jane Nelson, Defendants-Appellants/ CrossAppellees.
Date of Final Opinion: September 10, 2024
Published: 116 F.4th 373 (5th Cir. 2024)
_________________
U.S. District Court, WD Texas
No. 1:19-CV-700-RP
Mark Miller et al., Plaintiffs v. Jane Nelson, Defendants
Date of Final Order: June 26, 2023
Available at: 634 F.Supp.3d 340 (W.D. Tex. 2022)
v
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
PARTIES TO THE PROCEEDINGS ......................... ii
CORPORATE DISCLOSURE STATEMENT ........... iii
LIST OF PROCEEDINGS ......................................... iv
TABLE OF AUTHORITIES ...................................... ix
PETITION FOR A WRIT OF CERTIORARI ............. 1
OPINIONS BELOW ................................................... 4
JURISDICTION.......................................................... 5
CONSTITUTIONAL PROVISIONS INVOLVED...... 5
STATEMENT OF THE CASE .................................... 6
A. Legal and Historical Background .................... 6
B. Facts and Procedural History ........................ 10
REASONS FOR GRANTING THE PETITION ....... 13
I.
The Fifth Circuit’s Opinion Violates This
Court’s Precedent Prohibiting States from
Conditioning Participation in Elections on
Wealth and Deepens a Conflict Among
Courts of Appeals as to Whether State
Election Laws That Impose Substantial
Costs Are Unconstitutional. .......................... 13
A. The Fifth Circuit’s Opinion Upholding
Texas’s Statutory Scheme Under
Deferential Review Conflicts with
This Court’s Precedent. ............................ 15
vi
TABLE OF CONTENTS – Continued
Page
B. The Fifth Circuit’s Opinion Deepens a
Conflict Among Courts of Appeals as to
Whether State Election Laws That
Impose Substantial Costs Are
Unconstitutional. ...................................... 19
II. The Anderson-Burdick Framework Fails to
Provide Lower Courts With Meaningful
Standards for Analyzing the Constitutionality
of State Election Laws. .................................. 25
A. This Court Has Not Established a
Methodology or Substantive Standard
For Measuring the Severity of a Burden
on Constitutional Rights. ......................... 26
B. Courts and Commentators Are
Increasingly Clamoring for This Court
to Clarify the Anderson-Burdick
Framework. ............................................... 29
III. This Case Is an Ideal Vehicle For Resolving
the Questions Presented. ............................... 31
CONCLUSION.......................................................... 32
vii
TABLE OF CONTENTS – Continued
Page
APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Opinion, U.S. Court of Appeals for the
Fifth Circuit (September 10, 2024) .................... 1a
Judgment, U.S. Court of Appeals for the
Fifth Circuit (September 10, 2024) .................. 18a
Order Granting Injunctive Relief, U.S. District
Court for the Western District of Texas,
Austin Division (June 26, 2023) ...................... 20a
Permanent Injunction and Declaratory
Judgment, U.S. District Court for the Western
District of Texas, Austin Division
(June 26, 2023) ................................................. 25a
Amended Order, U.S. District Court for the
Western District of Texas, Austin Division
(October 4, 2022) .............................................. 29a
Order Staying Case, U.S. District Court for the
Western District of Texas, Austin Division
(September 30, 2022)........................................ 65a
STATUTORY PROVISIONS
Statutory Provisions Involved ................................ 67a
ELEC § 141.063. Validity of Signature ......... 67a
ELEC § 142.007. Number of Petition
Signatures Required (Statewide
Independents) ................................................. 68a
viii
TABLE OF CONTENTS – Continued
Page
ELEC § 181.005. Qualifying for Placement
On Ballot By Party Required to Nominate By
Convention ...................................................... 69a
ELEC § 181.006. Petition Supplementing
Precinct Convention
Lists ................................................................ 69a
ELEC § 192.032. (Presidential) Independent
Candidate’s Entitlement to Place
On Ballot ......................................................... 72a
Summary of Challenged Statutory Provisions
(Appellant Opening Brief, Appx. A)................. 74a
ix
TABLE OF AUTHORITIES
Page
CASES
TABLE OF AUTHORITIES
Anderson v. Celebrezze,
460 U.S. 780 (1983) ............ i, 2-4, 9, 11, 15, 25-31
Bailey v. Alabama,
219 U.S. 219 (1911) ........................................... 14
Belitskus v. Pizzingrilli,
343 F.3d 632 (3rd Cir. 2003) ............................. 22
Buckley v. American Constitutional Law
Foundation, 525 U.S. 182 (1999) ...................... 21
Bullock v. Carter,
405 U.S. 134 (1972) .......................... 13-19, 22, 26
Burdick v. Takushi,
504 U.S. 428 (1992) ........... i, 1-4, 15, 25-27, 29-31
Clean-Up ‘84 v. Heinrich,
590 F.Supp. 928 (M.D. Fl. 1984) ....................... 23
Constitution Party of Pa. v. Cortes,
116 F.Supp.3d 486 (E.D. Pa. 2015)
aff’d, 824 F.3d 386 (3rd Cir. 2016) .................... 22
Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181 (2008) ......................... 17, 26, 29, 30
Daunt v. Benson,
999 F.3d 299 (6th Cir. 2021) ......................... 3, 30
Dixon v. Maryland State Bd. of Elections,
878 F.2d 776 (4th Cir. 1989) ............................. 22
Elrod v. Burns,
427 U.S. 347 (1976) ........................................... 15
Fulani v. Krivanek,
973 F.2d 1539 (11th Cir. 1992) ......................... 22
x
TABLE OF AUTHORITIES – Continued
Page
Graveline v. Benson,
992 F.3d 524 (6th Cir. 2021) ................. 20, 23, 24
Green Party of Ga. v. Kemp,
171 F.Supp.3d 1340 (N.D. Ga. 2016), aff’d,
674 Fed. Appx. 974 (11th Cir. 2017) ........... 21, 23
Harper v. Virginia Bd. of Elections,
383 U.S. 663 (1966) .......................... 13-19, 22, 26
Hatten v. Rains,
854 F.2d 687 (5th Cir. 1988) ......................... 2, 29
Indiana Green Party v. Morales,
113 F.4th 739 (7th Cir. 2024)............ 3, 23, 24, 28
Indiana Green Party v. Morales,
No. 1:22-cv-005158, 2023 WL 5207924
(S.D. Ind. Aug. 14, 2023) ................................... 23
Jenness v. Fortson,
403 U.S. 431 (1971) ............................... 26, 27, 28
Krislov v. Rednour,
226 F.3d 851 (7th Cir. 2000) ....................... 21, 23
Libertarian Party of Ky. v. Grimes,
835 F.3d 570 (6th Cir. 2016) ................... 3, 24, 28
Lubin v. Panish,
415 U.S. 709 (1974) .......................... 13-19, 22, 26
McLaughlin v. North Carolina Board of
Elections,
850 F.Supp. 373 (M.D. N.C. 1994) .................... 23
Munro v. Socialist Workers Party,
479 U.S. 189 (1984) ........................................... 27
xi
TABLE OF AUTHORITIES – Continued
Page
NAACP v. Alabama,
357 U.S. 449 (1958) ..................................... 14, 15
Republican Party of Ark. v. Faulkner County,
Ark., 49 F.3d 1289 (8th Cir. 1995) .... 2, 22, 23, 29
Rogers v. Corbett,
468 F.3d 188 (3rd Cir. 2006) ............................. 25
Speiser v. Randall,
357 U.S. 513 (1958) ........................................... 14
Stone v. Board of Election
Com’rs for City of Chicago,
750 F.3d 678 (7th Cir. 2014) ................... 2, 27, 28
Storer v. Brown,
415 U.S. 724 (1983) ..................................... 26, 28
Trump v. Anderson,
601 U.S. 100 (2024) ........................................... 25
U.S. Term Limits v. Thornton,
514 U.S. 779 (1995) ........................................... 25
Williams v. Rhodes,
393 U.S. 23 (1968) ............................................... 6
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I .......................... i, 1, 5, 10, 15, 24
U.S. Const. amend. XIV, § 1 .................... i, 1, 5, 10, 24
xii
TABLE OF AUTHORITIES – Continued
Page
STATUTES
42 U.S.C. § 1983 ........................................................ 10
Tex. Elec. Code § 41.007 ............................................. 7
Tex. Elec. Code § 142.004-06 ...................................... 7
Tex. Elec. Code § 142.007 ........................................... 7
Tex. Elec. Code § 142.009 ....................................... 7, 8
Tex. Elec. Code § 172.029(b) ..................................... 10
Tex. Elec. Code § 172.116 ......................................... 10
Tex. Elec. Code § 172.117 ......................................... 10
Tex. Elec. Code § 172.120 ......................................... 10
Tex. Elec. Code § 172.122 ......................................... 10
Tex. Elec. Code § 173.001 et seq. .............................. 10
Tex. Elec. Code § 181.005 ........................................... 7
Tex. Elec. Code § 181.006 ....................................... 7, 8
Tex. Elec. Code § 181.0311 ................................... 9, 11
Tex. Elec. Code § 192.032 ........................................... 7
JUDICIAL RULES
Sup. Ct. R. 30.1 ........................................................... 5
xiii
TABLE OF AUTHORITIES – Continued
Page
OTHER AUTHORITIES
Derek T. Muller,
The Fundamental Weakness of Flabby
Balancing Tests in Federal Election Law
Litigation, EXCESS OF DEMOCRACY (Apr.
20, 2020), https://excessofdemocracy.com/
blog/2020/4/the-fundamental-weakness-offlabby-balancing-tests-in-federal-electionlaw-litigation ..................................................... 30
Edward B. Foley,
Voting Rules and Constitutional Law, 81
GEO. WASH. L. REV. (2013) ................................ 30
Miriam Seifter & Adam Sopko,
Election-Litigation Data: 2018, 2020, 2022
State and Federal Court Filings, State
Democracy Research Initiative (March 21,
2023), available at https://statedemocracy.
law.wisc.edu/research/2023/electionlitigation-database-2018-2020-2022-stateand-federal-court-filings/. ................................. 31
Richard L. Hasen,
The Democracy Canon, 62 STAN. L. REV.
(2009) ................................................................. 27
Tribe,
American Constitutional Law § 1320
(2d Ed.1988)....................................................... 29
1
PETITION FOR A WRIT OF CERTIORARI
In the decision below the Fifth Circuit upheld
Texas’s ballot access requirements, finding Petitioners
failed to demonstrate a severe burden on their First
and Fourteenth Amendment rights, even though the
uncontested evidence establishes that a minor political party (“Minor Party”) or independent candidate
(“Independent”) for statewide office must spend hundreds of thousands of dollars or more to comply with
those requirements. That decision cannot be reconciled
with this Court’s long-standing precedent prohibiting
states from making wealth a condition of participation
in their electoral processes. It also deepens a conflict
among the lower courts as to whether state election laws
that impose substantial costs are unconstitutional.
Yet the Fifth Circuit treated its decision as if it were a
straightforward application of settled precedent.
The Fifth Circuit’s decision is undoubtedly wrong,
but it exemplifies the lower courts’ persistent difficulty
in adjudicating claims that state election laws violate
the fundamental rights of the voters, candidates and
political parties subject to them. To resolve such claims,
this Court has directed lower courts to apply a
balancing test pursuant to which they must “must
weigh ‘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,’ taking into consideration ‘the extent to
which those interests make it necessary to burden the
plaintiff’s rights.” Burdick v. Takushi, 504 U.S. 428, 434
2
(1992) (quoting Anderson v. Celebrezze, 460 U.S. 780,
789 (1983)). Under this Anderson-Burdick analysis,
restrictions that impose “severe” burdens are subject
to strict scrutiny, whereas lesser burdens are subject
to less exacting review. See Burdick, 504 U.S. at 434.
But lower courts have struggled to apply the
Anderson-Burdick analysis with consistency from its
inception. See, e.g., Republican Party of Ark. v. Faulkner
County, Ark., 49 F.3d 1289, 1296 (8th Cir. 1995) (“The
Supreme Court has not spoken with unmistakable
clarity on the proper standard of review for challenges
to provisions of election codes”); Hatten v. Rains, 854
F.2d 687, 693 (5th Cir. 1988) (“The Supreme Court has
never stated the level of scrutiny applicable to ballot
access restrictions with crystal clarity”). The problem,
as the Seventh Circuit has observed, is that “much of
the action takes place at the first stage” of the analysis—
measuring the severity of the burden a state election
law imposes—but this Court has never explained how
that is to be done. Stone v. Board of Election Com’rs
for City of Chicago, 750 F.3d 678, 681 (7th Cir. 2014).
The Court has neither established a methodology
nor identified a substantive standard to guide the
inquiry.
Not surprisingly, lower courts are divided as to
if and when a burden crosses the line into unconstitutionally severe. Several circuits have held ballot access
requirements unconstitutional even though they are
less restrictive and less expensive to comply with
than Texas’s, while other circuits have held, consistent
with the Fifth Circuit, that the substantial cost of
complying with such requirements is not a severe
burden. At least two circuits are internally divided:
they have entered conflicting decisions holding in one
3
case that such costs are a severe burden, and in another
case that they are not.
In addition to reaching conflicting results, lower
courts have also begun to fashion their own conflicting
standards for analyzing the severity of burdens imposed
by ballot access requirements. In the decision below, for
instance, the Fifth Circuit found that Texas’s statutory
scheme was not severely burdensome because the
necessary cost of complying with it was not a “consequential burden” to Petitioners. App.11a (emphasis original).
No other court appears to have invoked this novel
standard, and this Court certainly has not. Similarly,
however, the Seventh Circuit has recently concluded
that the approximately $500,000 cost of complying with
Indiana’s ballot access requirements was not a severe
burden because the case was not otherwise “a close
one.” Indiana Green Party v. Morales, 113 F.4th 739,
747, 751 (7th Cir. 2024); but see Anderson, 460 U.S. at
789 (rejecting litmus test analyses) (citation omitted).
And the Sixth Circuit has concluded that the cost of
complying with ballot access requirements is not a
severe burden unless it amounts to “exclusion or virtual
exclusion from the ballot.” Libertarian Party of Ky. v.
Grimes, 835 F.3d 570, 574 (6th Cir. 2016). The lower
courts’ reliance on such sui generis and inconsistent
standards makes it all but certain that the divide
between them will grow unless this Court intervenes.
Anderson-Burdick is the standard by which lower
courts must analyze the constitutionality of state
election laws, but as one jurist recently opined, its
“hallmark is standardless standards.” Daunt v.
Benson, 999 F.3d 299, 323 (6th Cir. 2021) (Readler,
J., concurring). That cannot be the guiding principle
on a question so pervasive and vitally important as
4
the validity of our nation’s election laws. The time has
come for this Court to provide lower courts the guidance they so clearly need, by establishing workable
standards to inform their Anderson-Burdick analysis.
This case is the right vehicle for the Court to do that.
The facts are undisputed, the evidence is uncontested
and, because this is a rare election law case that did
not arise in an emergency posture, the record is robust
and spans five decades of electoral history in Texas.
The questions presented were also squarely raised
and decided in the proceedings below. For the reasons
set forth below, this Court should grant certiorari.
OPINIONS BELOW
The Opinion of the United States Court of
Appeals for the Fifth Circuit (App.1a) is published at
116 F.4th 373 (5th Cir. 2024). The District Court’s
Opinion (App.29a) is published at 634 F.Supp.3d 340
(W.D. Tex. 2022).
5
JURISDICTION
The judgment of the Court of Appeals was
entered on September 10, 2024. App.18. On December
3, 2024, Justice Alito extended the time within which
to file a petition for certiorari to and including January
8, 2025. See No. 24A525. On January 2, 2025, Justice
Alito further extended that time, such that the petition
is timely filed on February 7, 2025. See id.; Sup. Ct. R.
30.1. This Court has jurisdiction pursuant to 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Const. amend. I
Congress shall make no law . . . abridging the
freedom of speech . . . or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. Const. amend. XIV, § 1
No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.
6
STATEMENT OF THE CASE
A.
Legal and Historical Background
This case raises a constitutional challenge to “an
entangling web of election laws” that effectively forecloses Texas’s general election ballot to non-wealthy
Independents and Minor Parties. See Williams v.
Rhodes, 393 U.S. 23, 35 (1968) (Douglas, J., concurring).
The material facts are not in dispute. App.38a. They
are supported by the “comprehensive evidentiary record”
that Petitioners presented to the District Court, which
spans five decades of Texas’s electoral history. App.38a,
51a. Those facts establish that Independents and
Minor Parties cannot qualify for the ballot in Texas
unless they have substantial funds to hire petition
circulators to gather tens of thousands of signatures
in an exceedingly short time. App.41a. They also establish that the cost of doing so now is in the hundreds of
thousands of dollars or more. App.41a. Those astronomical costs are caused by Texas’s high signature
requirements—the second highest in the nation—in
combination with Texas’s short petitioning periods,
its obsolete and inefficient 120-year-old petitioning
procedures, and other unique restrictions and requirements. Taken together, these provisions interpose a
near-absolute barrier to non-wealthy Independents
and Minor Parties.
7
1. Texas’s Ballot Access Requirements Are
the Most Burdensome and Expensive in
the Nation.
In 2022, a statewide Independent was required to
collect 83,434 valid signatures in just 107 days, while
a Minor Party was required to collect the same number
in just 75 days. See Tex. Elec. Code §§ 142.004-06,
142.007(1), 142.009 (establishing Independent requirements); §§ 181.005(a), 181.006(a),(b) (establishing Minor
Party requirements). In 2024, a presidential Independent was required to collect 113,151 valid signatures
in just 68 days. See §§ 192.032(c),(g); 41.007(c). No
other state requires so many signatures in such a
short time. App.40a. As a result, statewide petition
drives cannot succeed in Texas today unless paid
petition circulators are hired—indeed, the record
demonstrates that volunteer-led petition drives have
not succeeded in decades, if ever. App.40a-41a.
As Texas’s signature requirements have steadily
risen over the years (because they are based on a
percentage of votes cast in the most recent Gubernatorial or Presidential elections), while its petitioning
periods remain fixed, the cost of conducting a statewide
petition drive has skyrocketed. For the last two decades,
any successful statewide petition drive has cost well
over $100,000, and most cost hundreds of thousands
of dollars.1 SUMF ¶¶ 69, 72. In 2010, a statewide
petition drive cost more than $500,000. Id. ¶ 91. By
2018, the cost had risen to $587,500 if there were no
1 Where the lower courts’ opinions omit material facts, Petitioners
cite to the Statement of Undisputed Material Facts submitted in
support of their Motion for Summary Judgment (“SUMF”)
(Dkt. 59).
8
run-off primary and $797,000 if there were, id. ¶ 117,
and in 2022, the cost ranged from $882,000 to $1.375
million. App.41a. These costs are not just staggering,
they are insurmountable for the non-wealthy, including
Petitioners. App.43a-45a.
Texas has not updated or improved its petitioning
procedures in the 120 years since it first adopted them
in 1905. App.63a. The uncontested evidence demonstrates that collecting signatures by hand on paper
petitions is inherently laborious, time-consuming,
inefficient and expensive. App.40a-42a. To demonstrate
the requisite modicum of support, for example, it is
necessary to exceed the signature requirement by
approximately 50 percent—or tens of thousands of
signatures—due to the large proportion of signatures
that are deemed invalid. App.51a. Thus, while Texas’s
petitioning procedures may have been adequate in
1906, when Texas only required 2,802 signatures for
statewide ballot access, SUMF ¶ 12, they are grossly
inadequate to the task today, when Texas’s signature
requirements have increased exponentially.
Texas also imposes additional requirements and
restrictions that make petitioning more difficult there
than any other state. App.41a. Chief among them are
its “primary screenout” provisions, which prohibit Independents and Minor Parties from collecting signatures
until after the Major Parties’ primary elections and
prohibit voters who voted in a primary from signing
their petitions. See §§ 181.006(j), 181.063, 142.009(1);
§§ 181.006(g), 142.009(2). This makes petitioning
in Texas more time-consuming and expensive than any
other state, because it reduces the number of eligible
signers, increases the number of invalid signatures
collected, and makes petitioning on primary election
9
day—which is by far the most productive day of a
petition drive—impossible. App.41a. Texas also, unlike
any other state, requires that petition circulators
recite a lengthy and legalistic oath to each potential
petition signer, to confirm that they have not voted in
a primary, which dissuades many people from signing
the petition. App.42a.
Several additional factors compound the burden
Texas imposes on Independents. For instance, Independents do not know when their petitioning period
will begin, because they cannot petition until after the
run-off primary, if there is one. App.36a. But all petitions are due 30 days after the run-off primary date. Id.
As a result, Independents in a race with a Major Party
run-off primary have only 30 days to collect the required
number of signatures. Id. Texas also requires more
signatures from Independents in presidential races, in
less time, than it requires of Independents in races for
statewide offices, App.37a, 40a, even though “the State
has a less important interest in regulating Presidential
elections than statewide or local elections. . . .” Anderson, 460 U.S. at 795.
Finally, while this case was pending, Texas began
requiring, for the first time in its history, that Minor
Party candidates pay filing fees to be eligible to be
nominated at their parties’ conventions. See § 181.0311.
The fees are equal to those that Major Party candidates
pay to appear on the primary election ballot, but while
the state permits the Major Parties to retain the fees
their candidates pay, the state retains the fees that
Minor Party candidates must pay—even though Minor
Parties pay for their own conventions and the state plays
no role whatsoever in administering them. App.13a.
10
Texas thus profits, financially, from Minor Parties’
participation in its electoral processes. SUMF ¶ 60.
2. Texas Guarantees Major Parties Ballot
Access at Taxpayer Expense.
Major Parties face no such burdens, financial or
otherwise. Major Parties are entitled to place their
nominees on the general election ballot automatically
once they are selected in taxpayer-funded primary
elections. See §§ 172.116; 172.117(a); 172.120(a),(h);
172.122; 173.001 et seq. In each election cycle since
1972, Texas has spent millions of dollars in taxpayer
funds to pay for the Major Parties’ primaries, and in
2020 alone it paid approximately $18 million. SUMF
¶ 37. Texas has also adopted modern, electronic procedures to facilitate the Major Parties’ administration of
their primary elections. See §§ 172.029(b); 172.116,
172.117(a), 172.122. Yet Texas has made no attempt to
explore alternatives that could ease the heavy burdens
its statutory scheme imposes on Independents and
Minor Parties—and on the election officials who must
administer and enforce that scheme. App.63a.
B.
Facts and Procedural History
This action commenced on June 11, 2019, when
Petitioners Mark Miller, Scott Copeland, Laura Palmer,
Tom Kleven, Andy Prior, America’s Party of Texas,
Constitution Party of Texas, Green Party of Texas, and
Libertarian Party of Texas filed suit against the
Secretary of State of the State of Texas and Deputy
Secretary of State of the State of Texas (together, “the
Secretary”), who are named in their official capacities
only. Petitioners asserted claims pursuant to 42 U.S.C.
§ 1983 and the First and Fourteenth Amendments.
They alleged that the challenged provisions of the
11
Texas Election Code are unconstitutional as applied
in combination with one another.2
As the District Court recognized, the “thrust” of
Petitioners’ claims is that the necessary cost of complying with Texas’s statutory scheme is an impermissible
financial barrier to their participation in the electoral
process.3 App.54a. In support of those claims, Petitioners submitted a “comprehensive evidentiary record”
spanning five decades of Texas’s electoral history,
App.51a, which demonstrates the increasing burdens
Texas’s statutory scheme imposes as the number of
signatures required has increased exponentially while
the time for collecting them remains fixed. App.56a;
SUMF ¶¶ 11-14, 21-31, 61-73. The District Court acknowledged that “it is expensive, perhaps prohibitively
expensive, to comply with” that statutory scheme, but
concluded that Petitioners nonetheless failed to establish a severe burden on their rights because “none of
the Plaintiffs is suffering from that burden, even if it
is a severe burden.” App 56a.
At the same time, the District Court recognized
that Texas’s antiquated and obsolete petitioning procedures are “not reasonably related to the State’s interest in ensuring candidates demonstrate a significant
modicum of support to qualify for the ballot.” App.60a.
2 Each challenged provision is identified and summarized in the
Appendix. App.74a-84a.
3 Petitioners also asserted that certain aspects of Texas’s statutory scheme are unconstitutional on independent grounds. For
example, they asserted that the primary screenout provisions, filing
fees imposed pursuant to § 181.0311, and shortened and indeterminate petitioning periods for Independents violate Equal Protection, and that the more restrictive requirements imposed on
presidential Independents are unconstitutional under Anderson.
12
That “inefficient and laborious process” did not further the state’s asserted interests but rather measured
the extent to which Independents and Minor Parties
were able to marshal sufficient funds and resources in
a short time. App.60a. The District Court also found
Texas’s petitioning procedures unequally burdened
Petitioners because the state “allows Major Parties to
use electronic methods as part of their procedures for
accessing the ballot,” but requires Independents and
Minor Parties to follow the same procedures it originally adopted in 1905. App.62a.
On October 4, 2022, the District Court entered its
Amended Order granting summary judgment in part
to Petitioners. App.29a-64a. The District Court held
Texas’s statutory scheme unconstitutional as applied
to Petitioners insofar as it requires or necessitates
the use of paper nomination petitions, but granted
summary judgment to the Secretary on all other claims.
App.63a-64a. On June 26, 2023, the District Court
entered its Order and Final Judgment enjoining the
Secretary from enforcing Texas’s statutory scheme
against Petitioners insofar as it “contemplates, relies
upon, or requires paper nomination petitions or a paper
nomination petitioning, verification, or submission
process.” App.27a. Without objection from Petitioners,
the District Court stayed that Order pending appeal.
App.65a.
On July 26, 2023, the Secretary appealed to the
Fifth Circuit, and Petitioners cross-appealed. App.6a-7a.
The Fifth Circuit ruled for the Secretary on all claims
and issues. It affirmed the District Court except insofar
as the District Court held Texas’s statutory scheme
unconstitutional as applied, and reversed that ruling.
App.16a-17a. In a single paragraph, the Fifth Circuit
13
concluded that the cost of complying with Texas’s statutory scheme did not constitute a severe burden as
applied to Petitioners, because no Petitioner was actively
incurring that cost during the proceedings below.
App.10a-11a. The undisputed facts establish, however,
that no Petitioner can afford the cost of a petition
drive, that the prohibitive cost deterred some Petitioners from trying, and that all Petitioners were
harmed by their inability to bear that cost. App.43a-46a.
REASONS FOR GRANTING THE PETITION
I.
The Fifth Circuit’s Opinion Violates This
Court’s Precedent Prohibiting States from
Conditioning Participation in Elections on
Wealth and Deepens a Conflict Among Courts
of Appeals as to Whether State Election Laws
That Impose Substantial Costs Are Unconstitutional.
It has been settled law for at least half a century
that states may not measure a citizen’s qualification
or entitlement to participate in their electoral processes
on the basis of wealth. See Harper v. Virginia Bd. of
Elections, 383 U.S. 663 (1966) (striking down poll tax
of $1.50); Bullock v. Carter, 405 U.S. 134 (1972) (striking
down “patently exclusionary” candidate filing fees);
Lubin v. Panish, 415 U.S. 709 (1974) (striking down
“moderate” candidate filing fees in the absence of a
non-monetary alternative). “To introduce wealth or payment of a fee as a measure of a voter’s qualifications
is to introduce a capricious or irrelevant factor,” because
“[w]ealth, like race, creed, or color, is not germane to
14
one’s ability to participate intelligently in the electoral
process.” Harper, 383 U.S. at 668. Similarly, “[f]iling
fees, however large, do not, in and of themselves, test
the genuineness of a candidacy or the extent of the
voter support of an aspirant for public office.” Lubin,
415 U.S. at 717. Wealth, in short, is “extraordinarily
ill-fitted” as a criterion for regulating access to the
ballot. Bullock, 405 U.S. at 146.
It is also well-settled that “a constitutional prohibition cannot be transgressed indirectly . . . any more
than it can be violated by direct enactment.” Speiser
v. Randall, 357 U.S. 513, 526 (1958) (quoting Bailey v.
Alabama, 219 U.S. 219, 239 (1911). “In the domain of
these indispensable liberties, whether of speech, press,
or association, the decisions of this Court recognize that
abridgment of such rights, even though unintended,
may inevitably follow from varied forms of governmental
action.” NAACP v. Alabama, 357 U.S. 449, 461 (1958).
A state therefore may not take action that “produce[s]
a result which the State could not command directly.”
Speiser, 357 U.S. at 526.
Against these settled principles, the unconstitutionality of Texas’s ballot access scheme is manifest.
The uncontroverted record establishes that a Minor
Party or Independent for statewide office must spend
hundreds of thousands of dollars or more to comply
with that scheme. App.38a, 41a, 51a, 54a, 56a. But
just as the Constitution forbids Texas from imposing
such a cost by direct enactment, see Harper, 383 U.S.
at 668-670; Bullock, 405 U.S. at 149; Lubin, 415 U.S.
at 718, it also forbids Texas from doing so indirectly,
as Texas has done here by adopting a statutory scheme
so burdensome, laborious and inefficient that the
exorbitant cost of complying with it “inevitably
15
follow[s]” from the state’s legislative choice. NAACP,
357 U.S. at 461; App.40a-42a. In so doing Texas has
impermissibly made wealth a necessary condition of
an Independent’s or Minor Party’s participation in its
electoral processes.
Because wealth has “no relation” to a citizen’s
qualification to participate in a state’s electoral
processes, this Court has unfailingly applied strict
scrutiny to election laws that infringe First Amendment
rights or discriminate on the basis of wealth. See
Harper, 383 U.S. at 670; Bullock, 145 U.S. at 144;
Lubin, 415 U.S. at 719 (Douglas, J., concurring). “This
type of scrutiny is necessary even if any deterrent effect
on the exercise of First Amendment rights arises, not
through direct government action, but indirectly as an
unintended but inevitable result of the government’s
conduct. . . . ” Elrod v. Burns, 427 U.S. 347, 362 (1976)
(citations omitted). In either case, “exacting scrutiny” is
required. Id.
A. The Fifth Circuit’s Opinion Upholding
Texas’s Statutory Scheme Under Deferential Review Conflicts with This Court’s
Precedent.
The Fifth Circuit analyzed Texas’s statutory
scheme under the Anderson-Burdick framework, see
infra Part II, but it remained bound by this Court’s
decisions in Harper, Bullock and Lubin. The Fifth
Circuit was similarly constrained to accept as true the
undisputed fact that Independents and Minor Parties
must incur substantial financial burdens to comply
with that statutory scheme. App.38a, 51a, 54a, 56a.
The Fifth Circuit therefore could not, consistent with
this Court’s precedent, uphold Texas’s statutory scheme
16
under a deferential standard of review. Yet that is
what the Fifth Circuit did. It found Texas’s statutory
scheme imposes no burden on Petitioners whatsoever,
and rejected their claims under Harper, Bullock and
Lubin without further analysis. App.10a-11a.
To justify this disposition, the Fifth Circuit invoked
a novel legal concept that has no antecedent in the
precedent of this Court or any other: the “consequential
burden” on constitutional rights. App.11a (emphasis
original). According to the Fifth Circuit, because Petitioners did not allege that they were actively incurring
the costs of complying with Texas’s statutory scheme—
i.e., that they were conducting a petition drive during
the pendency of the proceedings below—Petitioners
“failed to establish that the costs amount to a consequential burden in this case.” App.11a (emphasis original). Therefore, the Fifth Circuit concluded, Petitioners
failed to “show that the State is impermissibly conditioning [Petitioners’] participation in the electoral
process on their financial status,” or “that they have
been impacted by the alleged burden, even if we were
to hold that the burden is severe.” App.11a.
The Fifth Circuit’s analysis is as remarkable as it
is wrong. It is remarkable because the conclusion that
the constitutionality of Texas’s statutory scheme can
be properly analyzed without regard for the financial
burden it imposes defies more than 50 years of settled
precedent. And it is wrong because the constitutionality
of that scheme does not depend on whether Petitioners have been personally “impacted” by that burden.
As Justice Scalia has explained, this Court’s “precedents
refute the view that individual impacts are relevant
to determining the severity of the burden [an election
law] imposes.” Crawford v. Marion Cnty. Election Bd.,
17
553 U.S. 181, 205 (2008) (Scalia, J., concurring). Instead,
when measuring “the magnitude of burdens” that election laws impose, the Court does so “categorically and
[without] consider[ing] the peculiar circumstances of
individual voters or candidates.” Id. (citations omitted)
(“The Indiana law affects different voters differently,
but what petitioners view as the law’s several light
and heavy burdens are no more than the different
impacts of the single burden that the law uniformly
imposes on all voters.”) (emphasis original). The Fifth
Circuit thus committed a category error: it incorrectly
excused the impermissible financial burden that Texas’s
statutory scheme imposes because it concluded—also
incorrectly, see App.43a-46a—that Petitioners were
not personally impacted by that burden during the
proceedings below.
In Harper, Bullock and Lubin, this Court did not
hold that the financial burdens state election laws
impose are “consequential” only as to the particular
voters, candidates or parties they directly impact. On
the contrary, Harper categorically held poll taxes unconstitutional because “wealth or fee paying has . . . no
relation to voting qualifications.” Harper, 383 U.S. at
670. The Court did not consider whether the three
voter plaintiffs were impacted by the poll tax—whether
they paid it, or did not, or whether they could afford
it, or could not—but rather emphasized that its conclusion was “the same whether the citizen, otherwise
qualified to vote, has $1.50 in his pocket or nothing at
all, pays the fee or fails to pay it.” Id. at 668. The
impact of the poll tax on a particular plaintiff was
wholly irrelevant to the constitutional analysis.
The Court similarly assessed the burden imposed
by the filing fees in Bullock without even addressing
18
their impact on the individual plaintiffs. See Bullock,
405 U.S. at 143-144. The Court’s concern was that “the
very size of the fees” made it inevitable that candidates
“lacking both personal wealth and affluent backers”
would be excluded, and that this exclusion would
harm voters by limiting “their choice of candidates,”
with “the obvious likelihood that this limitation would
fall more heavily on the less affluent segment of the
community . . . .” Id. The Court’s assessment of these
burdens—not any impact on the individual plaintiffs—justified its conclusion that the filing fees must
be as “closely scrutinized” as the poll taxes in Harper.
Id. at 144 (quoting Harper, 383 U.S. at 670).
So too, in assessing the burdens imposed by the
filing fees in Lubin, the Court emphasized that “the
interests involved are not merely those of parties or
individual candidates; the voters can assert their
preferences only through candidates or parties or both
and it is this broad interest that must be weighed in the
balance.” Lubin, 415 U.S. at 716 (emphasis added).
Thus, even though the filing fees at issue directly
impacted candidates, not voters, it was the “right to
vote” that the Court found to be “heavily burdened”
by the fees’ exclusionary effect. Id. That was so even
though the only plaintiff in the case was a candidate
for local office. Id. at 710.
Harper, Bullock and Lubin—this Court’s seminal
cases establishing that wealth-based restrictions and
classifications have no place in our nation’s electoral
processes—would be unthinkable if this Court had
adopted the Fifth Circuit’s specious distinction between
so-called “consequential” and inconsequential burdens
on constitutional rights. As explained infra at Part II,
however, the Fifth Circuit committed this error be-
19
cause lower courts lack guidance as to how to measure
the severity of a burden on constitutional rights. This
Court’s intervention is therefore urgently needed not
only to bring the Fifth Circuit into conformity with
this Court’s precedent, but also to provide lower courts
the necessary guidance with respect to this fundamental issue of national importance.
B. The Fifth Circuit’s Opinion Deepens a
Conflict Among Courts of Appeals as to
Whether State Election Laws That Impose
Substantial Costs Are Unconstitutional.
The Fifth Circuit’s conclusion that the staggering
cost of complying with Texas’s statutory scheme does
not constitute an unconstitutional burden directly
conflicts with the decisions of three other federal
courts of appeals—the Sixth Circuit, Seventh Circuit
and Eleventh Circuit—each of which struck down laws
that imposed substantially lower costs of complying
than do the laws of Texas. It also conflicts with the
decisions of four more federal courts of appeals—the
Third Circuit, Fourth Circuit, Eighth Circuit and
Eleventh Circuit—which have relied on Harper,
Bullock and Lubin to strike down election laws that
imposed other financial burdens without providing a
non-monetary alternative. But while the Fifth Circuit’s
decision violates that line of precedent, it is no outlier.
Notwithstanding their decisions that conflict with the
decision below, both the Sixth Circuit and Seventh
Circuit have also squarely held—consistent with that
decision—that the substantial cost of completing a
petition drive does not constitute an impermissible
burden. That two circuits stand on both sides of this
conflict underscores the lack of meaningful standards
20
under which lower courts presently labor when reviewing the constitutionality of state election laws.
1. In a challenge to Michigan’s 30,000-signature
requirement for independent candidates for statewide
office, the Sixth Circuit found a severe burden and
held the requirement unconstitutional even though it
amounted to 0.72 percent of the actual voters in the
previous general election—a less stringent requirement
than Texas’s. See Graveline v. Benson, 992 F.3d 524,
539-42, 548 (6th Cir. 2021); see also id. at 548 (Griffin,
J., dissenting). Like Petitioners, the Graveline plaintiffs challenged Michigan’s signature requirement as
applied in combination with other provisions—most
notably, the July 19 filing deadline—but even so,
Michigan required fewer signatures, allowed a longer
time to gather them, and imposed a later filing
deadline than Texas. See id. at 528-529. Additionally,
the record in Graveline, like the record below, disclosed
that “most all-volunteer efforts fail and professionals
are used to augment signature gathering efforts.” Id.
at 540 (quotation marks omitted). The plaintiff candidate’s
petition drive thus required “the expenditure of
$38,000” in addition to “1,000 hours of volunteer time,”
id. at 530, while the total cost of a statewide petition
drive came to $120,000. See Graveline v. Benson, 430
F.Supp.3d 297, 303 (E.D. Mich. 2019). Even though this
was a fraction of the cost of a statewide petition drive
in Texas, the Sixth Circuit, unlike the Fifth Circuit
below, concluded it supported a finding of a severe
burden. See Graveline, 992 F.3d at 543-546, 548.
The Eleventh Circuit has similarly held a ballot
access scheme unconstitutional even though it was far
less stringent and financially burdensome than Texas’s.
See Green Party of Ga. v. Kemp, 171 F.Supp.3d 1340
21
(N.D. Ga. 2016), aff’d, 674 Fed. Appx. 974 (11th Cir.
2017) (unpublished). In Green Party of Ga., the plaintiffs challenged Georgia’s one-percent signature requirement as applied to minor party presidential candidates.
See Green Party of Ga., 171 F.Supp.3d at 1344. That
requirement translated to 50,334 signatures—much
less than Texas’s one-percent signature requirement—
and Georgia allowed minor parties 15 months to collect
those signatures—much longer than the 75 days Texas
permits. See id. at 1347. Additionally, a statewide petition drive could cost as much as $350,000—much less
than the cost in Texas. See id. at 1350. The District
Court nonetheless relied on that cost, inter alia, to find
Georgia’s requirement imposed “a severe burden on
associational and voting rights” and strike it down.
Id. at 1363. The 11th Circuit “affirmed based on the
district court’s well-reasoned opinion.” Green Party of
Ga., 674 Fed. Appx. 974 (per curiam) (unpublished).
The Seventh Circuit has also relied on the cost of
complying with a ballot access scheme to support the
conclusion that it “substantially burdened” the plaintiff candidates’ rights. See Krislov v. Rednour, 226 F.3d
851, 860 (7th Cir. 2000). Krislov primarily concerned
a challenge to restrictions on petition circulators
under Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), but prior to reaching that
issue, the Court expressly rejected the state’s argument that Illinois’s ballot access scheme was “only
minimally burdensome” because it imposed relatively
low signature requirements. Id. at 859 (5,000 signatures
were required for statewide office). “[T]he number of
signatures a candidate is required to obtain is just one
of several important considerations” contributing to
the burden, the Court observed. Id. at 860 (citations
22
omitted). “The uncontested record indicates that [the
candidates’] ballot access took a lot of time, money and
people, which cannot be characterized as minimally
burdensome.” Id.
Because each of the foregoing decisions involved
ballot access requirements significantly less restrictive
than Texas’s and costs of complying that were substantially lower, the conflict between these decisions and
the Fifth Circuit’s decision below cannot be attributed to
factual distinctions. Where the Fifth Circuit concluded
that the cost of complying with Texas’s statutory scheme
did not establish a severe burden, its sister circuits
reached the opposite conclusion—that the lower costs
of complying with other states’ lesser restrictions did.
Courts including the Third Circuit, Fourth Circuit,
Eighth Circuit and Eleventh Circuit have also relied
on Harper, Bullock and Lubin to strike down state
election laws that imposed other financial burdens
without providing a non-monetary alternative. See
Constitution Party of Pa. v. Cortes, 116 F.Supp.3d 486,
502 (E.D. Pa. 2015) (striking down statutory scheme
that required candidates to assume risk of incurring
up to $130,000 in costs if they defended nomination
petitions they were required by law to submit), aff’d,
824 F.3d 386 (3rd Cir. 2016); Belitskus v. Pizzingrilli,
343 F.3d 632 (3rd Cir. 2003) (enjoining enforcement of
Pennsylvania’s filing fees against candidates unable to
pay them); Republican Party of Arkansas, 49 F.3d 1289
(holding that Arkansas cannot require political parties
to hold and pay for primary elections); Fulani v.
Krivanek, 973 F.2d 1539 (11th Cir. 1992) (declaring
unduly burdensome nomination petition signature
verification fees unconstitutional); Dixon v. Maryland
State Bd. of Elections, 878 F.2d 776 (4th Cir. 1989)
23
(declaring mandatory filing fee of $150 for non-indigent
write-in candidates unconstitutional); McLaughlin v.
North Carolina Board of Elections, 850 F.Supp. 373
(M.D. N.C. 1994) (declaring five-cent per signature
verification fee unconstitutional); Clean-Up ‘84 v.
Heinrich, 590 F.Supp. 928 (M.D. Fl. 1984) (declaring
ten-cent per signature verification fee unconstitutional). The Eighth Circuit aptly summarized the rule of
law governing these cases in Republican Party of
Arkansas, wherein it emphasized that Arkansas was
neither “constitutionally required to fund primary
elections” nor to “drop its mandatory party primary.”
Republican Party of Ark., 49 F.3d at 1291. What the
state could not do, however, was require political
parties both to conduct and pay for primary elections.
See id. That rule—like the decisions in Graveline,
Green Party of Ga. and Krislov, supra—cannot be
reconciled with the Fifth Circuit’s conclusion that the
necessary cost of complying with Texas’s statutory
scheme does not constitute a severe burden.
2. But the Fifth Circuit does not stand alone. The
Seventh Circuit recently concluded, under materially
indistinguishable circumstances from the decision
below, that the approximately $500,000 cost of
completing a statewide petition drive in Indiana is not
a severe burden. See Indiana Green Party, 113 F.4th
739. As in the instant case, the factual record in Indiana
Green Party—including the cost of a petition drive—
is undisputed. See Indiana Green Party v. Morales,
No. 1:22-cv-005158, 2023 WL 5207924, at *3 (S.D. Ind.
Aug. 14, 2023). And like the Fifth Circuit below, the
Seventh Circuit skirted the issue by referencing this
cost only obliquely, without acknowledging its enormity
or that it was sufficient to exclude the non-wealthy.
24
See Indiana Green Party, 113 F.4th at 747. The Seventh
Circuit nonetheless expressly concluded that this cost
“does not render Indiana’s otherwise eminently reasonable requirements severely burdensome.” Id. Although this conclusion directly contradicts its conclusion in Krislov, supra, the Seventh Circuit upheld
Indiana’s statutory scheme. Id.; see id. at 751.
The Sixth Circuit has likewise rejected the argument that the cost of a petition drive may constitute a
severe burden, thus contradicting its decision
reaching the opposite conclusion in Graveline, supra.
See Grimes, 835 F.3d at 574. In Grimes, Kentucky did
not permit an unqualified party to become ballotqualified by means of a single nomination petition
for its entire slate of candidates; instead, each candidate was required to submit a separate petition. See
id. at 572-573. Two such parties challenged Kentucky’s
scheme on the ground that it required them to “incur
high costs of gathering and filing petitions in order to
field a slate of candidates,” whereas qualified parties
were entitled to “blanket ballot access without the
need for petitioning . . . .” Id. at 573. The Sixth Circuit
rejected the challenge. The “hallmark of a severe
burden is exclusion or virtual exclusion from the
ballot,” it concluded, id. at 574 (citations omitted),
and while Kentucky’s scheme “may impose some
financial costs on the [plaintiff parties] . . . those costs
certainly do not constitute exclusion or virtual exclusion
from the ballot.” Id. at 575. The Court therefore
upheld Kentucky’s scheme, finding it imposed a burden
“in between minimal and severe.” Id. at 577 (citations
omitted).
A functionally identical burden on First and
Fourteenth Amendment rights cannot be constitutional
25
in some states but unconstitutional in others—particularly where, as here, that burden may be measured
with precision in dollars and cents. But that is the
scenario Independents and Minor Parties face under
the present legal landscape. In other electoral contexts—
those that impact major party candidates—this Court
has consistently found such a “patchwork” scheme
intolerable. See Trump v. Anderson, 601 U.S. 100, 11617 (2024) (quoting U.S. Term Limits v. Thornton, 514
U.S. 779, 822 (1995)). It is equally intolerable here.
Certiorari is warranted to resolve this conflict among
the lower courts.
II. The Anderson-Burdick Framework Fails to
Provide Lower Courts With Meaningful
Standards for Analyzing the Constitutionality
of State Election Laws.
The importance of the Anderson-Burdick framework cannot be overstated. It is the standard by which
lower courts analyze both First Amendment and Equal
Protection challenges to state election laws. See
Rogers v. Corbett, 468 F.3d 188, 194-195 (3rd Cir.
2006). As the preceding discussion demonstrates, however, it fails to establish meaningful standards that
lower courts can apply to reach consistent and uniform
results in this critical area of the law. As a result,
lower courts are left to fashion their own ad hoc standards, as the Fifth Circuit did below, or to ground their
analysis in nothing more than subjective opinion. That
cannot be the operative test by which state election
laws stand or fall.
26
A. This Court Has Not Established a Methodology or Substantive Standard For
Measuring the Severity of a Burden on
Constitutional Rights.
As Justice Stevens acknowledged in his opinion
announcing the Court’s judgment in Crawford, this
Court has not “identif[ied] any litmus test for measuring the severity of a burden that a state [election] law
imposes. . . .” Crawford, 553 U.S. at 190-91 (Stevens,
J.). But that is an understatement. In fact, this Court
has provided almost no guidance as to how lower courts
should measure the severity of a burden, nor has it
identified any substantive standard as to what constitutes a severe burden. The Court has only suggested
that state laws are not severely burdensome if they “do
not operate to freeze the political status quo,” Jenness
v. Fortson, 403 U.S. 431, 438 (1971), or if they impose
requirements that do “not appear to be . . . impossible.”
Storer v. Brown, 415 U.S. 724, 740 (1983). The only
objective standard, it appears, is that states may not
require a showing of support greater than 5 percent of
the eligible pool of voters, which is the most restrictive
requirement this Court has upheld. See id. at 739.
Within that range, seemingly, anything goes—including, if the Fifth Circuit is not corrected, a statutory
scheme that imposes a cost of hundreds of thousands
of dollars or more. But that is inconsistent with this
Court’s pre-Anderson precedent. See Harper, 383 U.S.
663; Bullock, 405 U.S. 134; Lubin, 415 U.S. 709.
The Court has not been so reticent when it comes
to the other side of the Anderson-Burdick scales—
the state interests asserted to justify the burdens
an election law imposes. More than 50 years ago, the
Court recognized that there “is surely an important
27
state interest” in requiring candidates and political
parties to demonstrate “a significant modicum of support” before placing them on the ballot—the interest
in “avoiding confusion, deception and even frustration
of the democratic process . . . .” Jenness, 403 U.S. at
442. Since then, lower courts have routinely found
such interests sufficient to justify state election laws,
frequently without inquiring whether the interests
are even implicated. But lower courts need not bother
with such details because this Court has “never required a State to make a particularized showing of
the existence of voter confusion, ballot over-crowding,
or the presence of frivolous candidacies prior to the
imposition of reasonable restrictions on ballot access.”
Munro v. Socialist Workers Party, 479 U.S. 189, 19495 (1984). As a result, states are free to defend, and
courts to uphold, state election laws without the
slightest evidence they further any legitimate interest
at all, much less that they are sufficiently tailored to
that end.
This asymmetry leaves those seeking to vindicate
constitutional rights under the Anderson-Burdick
framework at a decided disadvantage. See Richard L.
Hasen, The Democracy Canon, 62 STAN. L. REV. 69,
100 (2009) (“the relevant balancing tests . . . leave[]
plaintiffs facing an uphill battle . . . without clear constitutional rules from the Supreme Court.”). Unless a
burden is deemed “severe,” the state interests this
Court has identified are generally sufficient to uphold
a statute, even without evidence they are implicated.
See Stone, 750 F.3d at 681 (citing Burdick, 504 U.S. at
434). Therefore, despite its lack of methodology or
substantive standards, the first step of AndersonBurdick is not just where “the action takes place”—it
28
is outcome-determinative in virtually every case. Stone,
750 F.3d at 681.
In the absence of substantive standards for
identifying a severe burden, lower courts have developed their own. The Sixth Circuit, for example, has
inferred from cases like Jenness and Storer that
burdens are not severe unless they are practically
impossible to overcome. See Libertarian Party of
Kentucky, 835 F.3d at 574 (“The hallmark of a severe
burden is exclusion or virtual exclusion from the
ballot.”) (citations omitted). In the decision below,
the Fifth Circuit relied on its novel “consequential
burden” standard to justify its disregard for the cost
of complying with Texas’s statutory scheme. Similarly,
the Seventh Circuit justified its disregard for the financial burden imposed by Indiana’s statutory scheme on
the ground that the case was “not a close one.” Indiana
Green Party, 113 F.4th at 751. Because Indiana’s
signature requirement was “far lower than the 5 percent
requirements” this Court has upheld, the Seventh
Circuit found it “clear” that Indiana’s statutory scheme
is not severely burdensome. Id.; but see Anderson, 460
U.S. at 789 (rejecting litmus test analyses).
A balancing test that permits the Fifth Circuit to
deem the burdens imposed by Texas’s statutory scheme
as less than severe, or the Seventh Circuit to conclude
the same with respect to Indiana’s statutory scheme,
despite the hundreds of thousands of dollars it costs to
comply with each one, is badly in need of recalibration.
Only this Court can provide that critical correction
and make Anderson-Burdick a functional framework
to guide lower courts’ review.
29
B. Courts and Commentators Are Increasingly
Clamoring for This Court to Clarify the
Anderson-Burdick Framework.
Petitioners are not alone in their belief that
Anderson-Burdick is in dire need of revisitation. Far
from it. In the four decades since Anderson was decided,
the analytic framework it established has met with an
unrelenting torrent of criticism. Initially, lower courts
expressed confusion as to the standard of review it
prescribes. See, e.g., Hatten, 854 F.2d at 693; Republican
Party of Ark., 49 F.3d at 1296. One noted commentator
was more blunt: “as a pronouncement of doctrine,”
Professor Tribe observed, this Court’s ballot access
jurisprudence “is positively Delphic.” Tribe, American
Constitutional Law § 1320 (2d Ed.1988).
This Court attempted to provide the requisite
clarity in Burdick, by specifying that election laws that
impose “severe” burdens are subject to strict scrutiny,
whereas those that impose “only ‘reasonable, nondiscriminatory restrictions’” are generally justified by
“the State’s important regulatory interests.” Burdick,
504 U.S. at 434 (quoting Anderson, 460 U.S. at 788).
Justice Scalia, joined by Justice Thomas and Justice
Alito, concluded that Burdick succeeded in “forg[ing]
Anderson’s amorphous ‘flexible standard’ into something
resembling an administrable rule.” Crawford, 553 U.S.
at 205 (citation omitted) (Scalia, J., concurring). But
as the Seventh Circuit has observed, “this rule can
only take us so far . . . for there is no ‘litmus test for
measuring the severity of a burden that a state law
imposes.’” Stone, 750 F. 3d at 681 (quoting Crawford,
553 U.S. at 191).
30
Burdick thus failed to resolve lower courts’
confusion or to stanch criticism of the AndersonBurdick framework. See, e.g., Derek T. Muller, The
Fundamental Weakness of Flabby Balancing Tests in
Federal Election Law Litigation, EXCESS OF DEMOCRACY
(Apr. 20, 2020), available at https://excessofdemocracy.
com/blog/2020/4/the-fundamental-weakness-of-flabbybalancing-tests-in-federal-election-law-litigation
(Anderson-Burdick is a “flabby . . . ad hoc totality-ofthe-circumstances” test); Edward B. Foley, Voting Rules
and Constitutional Law, 81 GEO. WASH. L. REV. 1836,
1859 (2013) (“Anderson-Burdick balancing is such an
imprecise instrument that it is easy for the balance to
come out one way in the hands of one judge, yet come out
in the exact opposite way in the hands of another.”).
And the lower courts’ criticism has become even more
pointed: Anderson-Burdick “seemingly is little more
than a grand balancing test in which unweighted factors
mysteriously are weighed”—a “rampant[ly] subjectiv[e]”
exercise akin “to the hopeless task of assessing whether a particular line is longer than a particular rock
is heavy”—and it allows a judge to “put[] . . . inherent
policy preferences front-and-center when deciding
critical matters of public and political interest.” Daunt,
999 F.3d at 323, 325-27 (Readler, J., concurring)
(citations omitted).
This Court revisited Anderson-Burdick most
recently in Crawford, but that case did little to clarify
matters, as a splintered Court produced four separate
opinions but no majority. See Crawford, 553 U.S. 181.
As a result, lower courts must continue to apply the
“standardless” Anderson-Burdick analysis to state
election laws, even as the volume of election law litigation has surged in recent election cycles with no sign
31
of abatement. See Miriam Seifter & Adam Sopko,
Election-Litigation Data: 2018, 2020, 2022 State and
Federal Court Filings, State Democracy Research
Initiative (March 21, 2023), available at https://
statedemocracy.law.wisc.edu/research/2023/electionlitigation-database-2018-2020-2022-state-and-federalcourt-filings/. The time has come for this Court to
rectify the matter.
III. This Case Is an Ideal Vehicle For Resolving
the Questions Presented.
This is a rare election law case that was not
litigated in an emergency posture. As a result, it
comes to this Court on the basis of a robust evidentiary
record that conclusively establishes the increasing
burden Texas’s statutory scheme has imposed over
the last five decades. Perhaps even rarer, that record
is genuinely uncontroverted. As the District Court
observed, the material facts are not in dispute and
Respondents do not contest the “comprehensive evidentiary record” Petitioners developed in support of their
claims. App.38a, 51a. Therefore, the only issue to be
resolved is a question of law: whether the Constitution
permits states to condition ballot access for Independents and Minor Parties on their ability to pay substantial costs. That question was directly presented
to the courts below and the Fifth Circuit squarely
addressed it. The Fifth Circuit held, incorrectly, that the
exorbitant cost of complying with Texas’s statutory
scheme does not impose an unconstitutional burden
on Petitioners’ First and Fourteenth Amendment rights.
This case is an ideal vehicle to breathe new life into
the moribund Anderson-Burdick framework by correcting the Fifth Circuit’s error and reaffirming what
this Court has long held: states may not make money
32
a necessary condition of citizens’ participation in their
electoral processes.
CONCLUSION
For the foregoing reasons, the Petition for Certiorari
should be granted.
Respectfully submitted,
Oliver B. Hall
Counsel of Record
Theresa Amato
CENTER FOR COMPETITIVE DEMOCRACY
P.O. Box 21090
Washington, DC 20009
(202) 248-9294
oliverhall@competitivedemocracy.org
Michael P. Mitchell
ALLEN OVERY SHEARMAN STERLING US LLP
1101 New York Avenue, NW
Washington, DC 20005
(202) 508-8000
michael.mitchell@aoshearman.com
Counsel for Petitioners
February 7, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.