IN THE UNITED STATES DISTRICT COURT

                                      WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

 

___________________________________________

                                                                   )

RALPH NADER, Candidate for President    )

of the United States; STEPHEN E. SMAHA;          )

SUZANNE RUSSO; and LUCRETIA              )

KRAUSE;                                                    )

                                      ....Plaintiffs,          )

                                                                   )

          v.                                                       )         Case No.

                                                                   )

GEOFFREY S. CONNOR, Secretary of State         )

for the State of Texas,                                 )

                                      ....Defendant.       )

___________________________________________ )

 

                                                C O M P L A I N T

 


          COME now the Plaintiffs, and for their cause of action against the Defendant, allege and state as follows, to-wit: 

                                                             I.

          Plaintiff RALPH NADER, is a citizen of the United States, is a registered voter, domiciled in the State of Connecticut, and an Independent candidate for the office of President of the United States.

          Plaintiff STEPHEN E. SMAHA is a resident of the State of Texas, a registered voter in Texas, a presidential elector for Ralph Nader, a volunteer petitioner in the 2004 Nader petition drive in Texas, the head of the computer systems used in the validation process for the aforesaid petition drive in Texas in 2004, and desires to vote for Plaintiff NADER in the 2004 election for the office of President of the United States.

          Plaintiff SUZANNE RUSSO is a resident of the State of Texas, a registered voter in Texas, a presidential elector for Ralph Nader, a volunteer petitioner in the 2004 Nader petition drive in Texas, and desires to vote for Plaintiff NADER in the year 2004 Presidential Election. 

          Plaintiff LUCRETIA KRAUSE, is a resident of the State of Texas, a registered voter in Texas, a presidential elector for Ralph Nader, a volunteer petitioner in the 2004 Nader petition drive in Texas, and desires to vote for Plaintiff NADER in the year 2004 Presidential Election. 

                                                             II.

          Defendant GEOFFREY S. CONNOR is the Secretary of State for the State of Texas (hereinafter referred to as Secretary of State).  In his official capacity, the Secretary of State is the Chief Election Officer for the State of Texas, and, as such, is charged with the duties of overseeing the election laws of Texas and the recognition of Independent candidates for President and their ballot status in Texas pursuant to V.T.C.A., Election Code §§192.032 and 192.033.  The Secretary of State has his office in the Texas State Capitol Building, Room 1E.8, Austin, Texas, 78701, and may be served with process at that location. 

                                                            III.

          This is an action for declaratory and injunctive relief.  The jurisdiction of this Court is invoked pursuant to Title 28, United States Code, § 1343(3), 1343(4), 2201, and 2202, and Title 42, United States Code, § 1983.  Venue of this Court is invoked pursuant to Title 28, United States Code, § 1391.  The rights, privileges, and immunities sought to be declared and redressed are those secured by the First and Fourteenth Amendments to the United States Constitution.

                                                            IV.

          This proceeding seeks a judgment declaring V.T.C.A., Election Code §§192.032(a), 192.032(b)(3)(A), 192.032(c), and 192.032(d), as applied herein to the Plaintiffs for the 2004 Texas General Election and all subsequent General Elections in the State of Texas and the facts and circumstances relating thereto, unconstitutional in that they violate in their application to the Plaintiffs herein for the 2004 Texas General Election, and all subsequent Texas General Elections, the First and Fourteenth Amendments to the United States Constitution and Title 42, United States Code, §1983.  This proceeding also seeks an injunction, both temporary and permanent, against the Defendant Secretary of State and his agents and employees, prohibiting the Defendant from following and enforcing the provisions of V.T.C.A. Election Code §§192.032(a), 192.032(b)(3)(A), 192.032(c), and 192.032(d), as applied to the Plaintiffs herein for the 2004 Texas General Election, and all subsequent Texas General Elections, so as to serve to prevent the listing on the Texas ballot of Plaintiff RALPH NADER as an Independent candidate for President of the United States.

                                                             V.

          The laws in question which were stated in rhetorical paragraph IV above are as follows, to-wit:

V.T.C.A., Election Code §192.032.

Independent Candidate’s Entitlement to Place on Ballot.

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

                   (b)  An application must:

 

* * * *

                        (3)  be accompanied by:

                  

          (A)  a petition that satisfies the requirements prescribed by Section 141.062; and

 

* * * * *

 

          (c)  The application must be filed with the secretary of state not later than the second Monday in May of the presidential election year.

          (d)  The minimum number of signatures that must appear on the petition is one percent of the total vote received in the state by all candidates for president in the most recent presidential general election.

* * * *

                                                            VI.

          While V.T.C.A., Election Code §§192.032(a), 192.032(b)(3)(A), 192.032(c), and 192.032(d) require an Independent candidate for president in Texas to present petition signatures totaling 64,077 (1% of the vote in the last presidential election in Texas) on or before May 10, 2004, a new political party in Texas may achieve recognition and standing for the Texas ballot in the year 2004 and have the right to have all its candidates on the ballot by presenting a petition signature of only 45,540 signatures (1% of the total vote in the last gubernatorial election in Texas) on or before a later filing deadline of May 24, 2004, pursuant to the requirements of V.T.C.A., Election Code §§181.005(a) and 181.006(b). 

          Because of the relatively stringent ballot access laws in Texas for Independent presidential candidates in comparison to the requirements for new political parties in Texas and the immense task of obtaining ballot status throughout the United States for its Presidential and Vice Presidential candidates in 2004, the supporters of NADER in Texas were unable to marshal their resources in such a manner as to conduct a successful petition drive in Texas pursuant to V.T.C.A., Election Code §§192.032(a), 192.032(b)(3)(A), 192.032(c), and 192.032(d), so as to meet the aforesaid petition signature deadline and required number of signatures, and also achieve ballot status in the other states and the District of Columbia at present. 

                                                            VII.

          The Texas ballot access laws complained of herein, as applied to Independent candidates for President of the United States and their presidential electors and supporters, set an unconstitutional early deadline of May 10th in presidential election years.  Said deadline is before the date (May 24, 2004) required for petition signatures to be turned in by new political parties in order to allow all their candidates—including their presidential candidate—to appear on the election ballot in Texas in the year 2004.  Further, Independent candidates for president in Texas in the year 2004 must submit valid petition signatures totaling 64,077 (1% of the total vote cast in Texas for president in the last presidential election) as compared to only 45,540 valid petition signatures (1% of the total vote cast in Texas for governor in the last gubernatorial election) for the recognition of new political parties.  Of course, the Defendant herein will not require the nominees of the Republican and Democratic parties to present any nominating petitions indicating their support in Texas because said nominees are for political parties already recognized in the State of Texas.  By May 10, 2004, the supporters of Ralph Nader had collected petition signatures totaling over 50,000.  Additionally, in the aforesaid 2004 Nader petition drive in Texas, petitioners for Nader encountered harassment from governmental officials and employees during the course of their petitioning by removing petitioners from public property and prohibiting them from gathering signatures on the campuses of the University of Texas at Austin and Arlington, as well as the campus of Texas A&M, all of which adversely affected said petitioners’ ability to gather petition signatures. 

                                                           VIII.

          The aforesaid early and discriminatory petition signature deadline in Texas for Independent presidential candidates, coupled with the higher signature requirement, shorter period of time, and the adverse circumstances involving petitioning in Texas, forces an Independent presidential candidate to demonstrate substantial support of a higher amount, during a shorter petitioning time, and at an earlier date than that required for political parties seeking recognition as new political parties in Texas for their nominees for President and other federal and state offices.  Because of the aforesaid discriminations, unnecessary distinctions, and hardships, Texas’ early presidential deadline for Independent candidates, as  set forth in V.T.C.A., Election Code §§192.032(a), 192.032(b)(3)(A), 192.032(c), and 192.032(d), effectively cuts off serious and important candidates from appearing on the Texas ballot and transforms the petitioning process from a way to demonstrate popular support into a race to meet an arbitrary, discriminatory, and unnecessarily early deadline.  At present, Texas’ deadline for Independent presidential candidate is the earliest in the United States and makes an unnecessary distinction and discriminates in favor of new political party presidential candidates as opposed to Independent presidential candidates.  Further, forty-six states and the District of Columbia have presidential petition deadlines in July, August, September, or later of a General Election year.  Texas’ early aforesaid presidential deadline places an undue, unreasonable, and unjustified burden on Independent presidential candidates.  The Defendant lacks any compelling interest in the aforesaid presidential deadline in Texas as it applies to presidential candidates, which requires an Independent presidential candidate to file his petitions for ballot access before the deadline for petitions required of new political parties in Texas, as well as allowing less time to petition and requiring a higher number of petition signature requirements than that required in Texas for ballot status for the new political party’s entire number of candidates.

                                                            IX.

          RALPH NADER declared his intention to be an Independent candidate for  President of the United States on or about February 22, 2004.  He immediately began to organize a nationwide campaign for President of the United States, building his campaign primarily on grassroots volunteer support.  According to recent nationwide polls of likely voters, RALPH NADER is the most popular alternative candidate running for President.  Mr. Nader is petitioning or pursuing other means to be on the ballot in all fifty states of the United States.

                                                             X.

          The aforesaid early and discriminatory filing deadline combined with the unduly burdensome, arbitrary, and discriminatory signature requirement for Independent presidential candidates and lessened time for gathering said signatures for Independent presidential candidates not only discriminates against those presidential candidates who choose to pursue their candidacies as Independents in Texas rather than by forming a new political party, but serves no compelling state interest which justifies the aforesaid disparate treatment between Independent candidates for president and newly formed political parties and their presidential candidates.  On information and belief, Plaintiffs assert that absent intervention by this Court, RALPH NADER, currently the most popular alternative candidate for President of the United States, will not be on the ballot in Texas in the year 2004.

                                                            XI.

          Defendant Secretary of State and his employees have and will exercise their authority under color of state law in enforcing the aforesaid State laws set forth in rhetorical paragraph V above, as applied to the Plaintiffs herein for the 2004 Texas General Election, and the facts and circumstances relating thereto, in such a manner as to be in an unlawful, discriminatory, capricious, and arbitrary manner, in violation of the First and Fourteenth Amendments to the United States Constitution, and Title 42, United States Code, § 1983, in that:

          V.T.C.A., Election Code §§192.032(a), 192.032(b)(3)(A), 192.032(c), and 192.032(d), as applied to the Plaintiffs herein for the 2004 Texas General Election and all subsequent General Elections in Texas, and the facts and circumstances relating thereto, are illegal and unconstitutional, in that they are violative of the rights of the Plaintiffs under the First and Fourteenth Amendments to the United States Constitution, and Title 42, United States Code, § 1983, in that the aforesaid statutes are not framed in the least restrictive manner necessary to achieve the legitimate State interests in regulating ballot access for a Presidential election, particularly as relating to the fact that the relatively earlier filing deadline for the current election year (viz.: May 10, 2004, shorter petitioning time, and higher number of required petition signature of 64,077 for Independent presidential candidates as opposed to the later petition signature deadline for the current election year (viz.: May 24, 2004),  longer petitioning time, and lower petition signature requirement of 45,540 for recognition of new political parties in Texas constitutes an invidious discrimination against Independent presidential candidates in violation of their rights and the rights of their potential supporters under the equal protection clause to the United States Constitution, their right to political association for the advancement of political beliefs, and the right to cast their votes effectively; and, as applied to Independent presidential candidates, Texas’ relatively early signature deadline, combined with the significantly higher signature requirement for Independent candidates as opposed to new political party candidates, and other particular circumstances herein, establishes an unreasonable and undue burden on Independent candidates for President of the United States seeking ballot access in Texas.

          The consequences of the aforesaid unreasonably and discriminatory and higher petition signature requirement, lesser petitioning time, and early petition deadline, as complained of hereinabove, is that RALPH NADER will fail to qualify for the General Election ballot for 2004 in Texas and voters in Texas will lose their ability to vote for him.  Additionally, because votes cast for President of the United States are done in the context of a national election, voters outside Texas who cast their ballots for RALPH NADER will have their votes effectively diluted by the refusal of the Defendant to allow RALPH NADER on the Texas General Election ballot for 2004.

                                                            XII.

          Plaintiffs herein, as a result and for the reasons set forth in rhetorical paragraphs VI, VII, VIII, X, and XI above, and the aforesaid State laws set forth in rhetorical paragraph V above, will suffer immediate and irreparable harm in the event that the aforesaid complained of election laws are followed for the year 2004 and subsequent years--thus, denying the aforesaid candidate for President a place on the Texas Election ballot for 2004.  Plaintiffs will thus be denied their rights to actively engage in the exercise of their free speech, right to political association, petition the government, seek redress of grievances, political candidacy, and equal protection and due process of the laws of the United States of America.  Plaintiffs have no adequate remedy at law for the denial of their rights and the impairment of the Constitutional rights, privileges, and immunities enjoyed by citizens of the United States and the State of Texas, and, unless a preliminary injunction and permanent injunction are granted, Plaintiffs will suffer great and irreparable harm.

          WHEREFORE, Plaintiffs demand judgment:

          1.       Declaring that  V.T.C.A., Election Code §§192.032(a), 192.032(b)(3)(A), 192.032(c), and 192.032(d), as applied to the Plaintiffs herein for the 2004 Texas General Election, and all subsequent Texas General Elections, and the facts and circumstances relating thereto, are illegal and unconstitutional, in that they are violative of the rights of the Plaintiffs under the First and Fourteenth Amendments to the United States Constitution, and Title 42, U.S.C. § 1983, in that the aforesaid statutes are not framed in the least restrictive manner necessary to achieve the legitimate State interests in regulating ballot access, particularly as relating to the earlier petition signature deadline, petition signature number required, and petition signature time required of new political parties in Texas; and, therefore,  the presidential filing deadline, petition signature time, and petition signature number required is unconstitutionally, discriminatorily, and unnecessarily early, stringent, and limited, respectively, as applied to Independent presidential candidates in the State of Texas.

          2.       Entering preliminary and permanent injunctions restraining, prohibiting, and enjoining the Defendant Secretary of State, his agents and employees, and all persons in active concert and participation with him, from enforcing, applying, or implementing the aforesaid complained of State Election laws as to the unnecessary and discriminatory early filing deadline and higher  petition signature requirement as applied to the instant Plaintiffs for 2004, and all subsequent Texas General Elections, and the facts and circumstances relating thereto.

          3.       Issuing writs of prohibition and mandamus to the Defendant Secretary of State, his agents and employees, and all persons in active concert and participation with them, ordering them not to take any action that would deny the Plaintiffs who are citizens of the State of Texas, or any other persons so inclined, the right to cast their votes for Ralph Nader for President of the United States, and ordering said Defendant to place the names of Nader, his Vice Presidential running mate, and his Presidential electors on the Texas ballot for the General Election in 2004, or, in the alternative, to allow the Plaintiffs to have until May 24, 2004, in which to gather additional petition signatures in order to meet the petition signature number requirement of V.T.C.A., Election Code §§192.032(a), 192.032(b)(3)(A), 192.032(c), and 192.032(d), or the lesser number required for new political parties of 45,540 petition signatures.

          4.       Awarding Plaintiffs the reasonable costs and expenses of this action, including attorney's fees pursuant to the Civil Rights Attorney's Fees and Awards Act of 1976, 42 U.S.C. § 1988; and

          5.       Granting Plaintiffs such other and further relief as to which they may be entitled and which the Court may deem equitable and just.

          Dated this 10th day of May, 2004.

 

 

                                                          RALPH NADER, Candidate for

                                                          President of the United States;

                                                          et al., Plaintiffs

 

                                                          JAMES C. LINGER, OBA No. 5441

                                                          Counsel for Plaintiffs

 

 

                                                          ______________________________

                                                          1710 South Boston Avenue

                                                          Tulsa, Oklahoma  74119-4810

                                                          (918) 585-2797

                                                          (918) 583-8283 facsimile

 

 

                                                          JOHN C. KITCHENS, TBA No. 00796893

                                                          Counsel for Plaintiffs

 

 

                                                          ________________________________

                                                          1800 Lavaca Street, Suite 702

                                                          Austin, TX 78701

                                                          (512) 478-1358

                                                          (512) 478-1358 Facsimile

 

 

 

 

                                         CERTIFICATE OF SERVICE

          I hereby certify that on this 10th day of May, 2004, a true and correct copy of the above and foregoing instrument was served via certified mail, return receipt requested, to the Secretary of State of Texas, P.O. Box 12079, Austin, TX 78711--2079.

 

 

                                                                   ______________________________

                                                                   JOHN C. KITCHENS