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