United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED September 10, 2024 No. 23-50537 Lyle W. Cayce ____________ Clerk Mark Miller; Scott Copeland; Laura Palmer; Tom Kleven; Andy Prior; America’s Party of Texas, also known as APTX; Constitution Party of Texas, also known as CPTX; Green Party of Texas, also known as GPTX; Libertarian Party of Texas, also known as LPTX,

Plaintiffs—Appellees/Cross-Appellants,

versus 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 the State of Texas,

Defendants—Appellants/Cross-Appellees. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:19-CV-700 ______________________________ Before Wiener, Elrod, and Wilson, Circuit Judges. Jennifer Walker Elrod, Circuit Judge: Independent candidates and minor political parties in Texas filed a lawsuit alleging that numerous provisions of the Texas Election Code, when considered in combination with one another, violate their First and Fourteenth Amendment rights. Because they have not proven that the Case: 23-50537 Document: 86-1 Page: 2 Date Filed: 09/10/2024

No. 23-50537

challenged provisions violate their constitutional rights, we AFFIRM in part and REVERSE in part. I The Texas Election Code requires candidates to fulfill certain requirements to be listed on Texas ballots. Plaintiffs–Appellees allege that the challenged provisions violate the First and Fourteenth Amendments because, when applied in combination with one another, they impose severe and unequal burdens on “non-wealthy Independents and Minor Parties.” Specifically, they argue that the following provisions of the Code “have prevented [them] from being able to fully participate in Texas’s electoral process”: Texas Election Code §§ 141.063–.065, 141.066(a), 141.066(c), 142.002, 142.006–.009, 142.010(b), 162.001, 162.003, 162.012, 162.014, 181.0311, 181.005(a), 181.005(c), 181.006(a), 181.006(b), 181.006(f)–(j), 191.007(b), 181.031–.033, 181.0041, 192.032(a)–(d), 192.032(f), and 202.007. At the most fundamental level, the Code provides three ways for a candidate to obtain a place on the statewide general-election ballot: (1) winning a primary election; (2) receiving a nomination from a political party that nominates by convention and qualifies for ballot access; or (3) submitting a nominating petition signed by the required number of voters. See Tex. Elec. Code §§ 142.001–10, 172.001–173.087, 181.001–.068, 192.032. Under section 172.001 of the Texas Election Code, political parties that received at least twenty percent of the vote in the last gubernatorial election, which are classified as “Major Parties,” nominate their candidates for state and county government and Congress by primary election. See Tex. Elec. Code § 172.001. To run in a primary election, a candidate must either (1) submit an application to the state or county party chair in December of the year before the election and pay a filing fee or (2) submit a nomination petition. Id. §§ 172.116, .117(a), .120(a), .120(h), .122. The filing fees range