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Texas Democrats are successfully suing to kick Green Party candidates off the November ballot

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T-Shirts for sale at the Green Party Presidential Convention in Houston on Aug. 5, 2016. Credit: Michael Stravato for The Texas Tribune

State and national Democrats are waging a legal offensive to kick Green Party candidates off the ballot in some of Texas' highest-profile races this fall — and they are seeing success.

On Wednesday, both a Travis County district judge and a state appeals court blocked the Green Party nominees for U.S. Senate and the 21st Congressional District from appearing on the ballot. The Austin-based 3rd Court of Appeals additionally forced the Green Party nominee for railroad commissioner off the ballot.

Earlier this week, it surfaced that a Green Party contender for chief justice of the Texas Supreme Court had withdrawn after the Democratic nominee questioned his eligibility.

The Democrats are largely targeting Green Party candidates because they have not paid filing fees — a new requirement for third parties under a law passed by the Legislature last year. The filing fees were already required of Democratic and Republican candidates. The new law is being challenged by multiple lawsuits that remain pending, and the Green Party of Texas has been upfront that most of its candidates are not paying the fees while they await a resolution to the litigation.

The Green Party argues that the filing fees, which go up to $5,000 for a U.S. Senate race, are an unconstitutional burden. They have also pointed out the fees normally go toward primaries, something neither the Green nor Libertarian parties conduct because they nominate their candidates at conventions. Only two of the Green Party's eight nominees for November have submitted the fees, according to the secretary of state.

Responding to Wednesday's rulings, the Texas Green Party said the legal challenges were suspiciously timed, coming after the Monday deadline for write-in candidates to file with the state and days before a series of deadlines finalizing the November ballot.

"The timing of these actions is an obvious attempt to remove voter choices from the ballot and lessen the work Democrats have to do to earn votes," the party said in a statement. "It is disappointing to have the legal system weaponized to suppress voters in this way."

The major deadline looming over the process is Aug. 28, when the secretary of state has to certify to counties the names of party nominees to appear on the November ballot. The Green Party confirmed its nominees at its state convention back in April.

The party focuses on issues such as climate change and social justice, regularly leading to complaints that it siphons votes away from Democrats.

The rulings Wednesday came in response to lawsuits in two different courts that involved some of the same candidates. The Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee and the Democratic nominee for U.S. Senate, MJ Hegar, had sued in Travis County district court to disqualify the Green Party nominees for U.S. Senate, David Collins, and for the 21st District, Tom Wakely. Meanwhile, Hegar had joined the Democratic nominees for the 21st District, Wendy Davis, and for railroad commissioner, Chrysta Castañeda, to seek an ineligibly ruling for their three respective Green Party candidates before the 3rd Court of Appeals.

In the appeals court's opinion, Justice Thomas Baker ordered the Green Party of Texas to declare their three candidates ineligible and do all they can to make sure they do not appear on the ballot. Baker said the court would not accept motions for rehearing, citing the "time-sensitive nature of this matter."

In the Travis County district court decision, Judge Jan Soifer said her order is in effect for the next two weeks. However, she scheduled a hearing for Aug. 26 — two days before the state's ballot certification deadline — where she could reevaluate the decision.

Wakely is probably the best known of the three Green Party candidates who the courts ruled against Wednesday. He was the Democratic nominee for the 21st District in 2016, when he lost by 21 percentage points to then-U.S. Rep. Lamar Smith, R-San Antonio. He also unsuccessfully ran in the 2018 Democratic primary for governor.

Wakely said Wednesday he thought the parties should be focused on "discussing ideas, debating policy," rather than working to take options away from voters.

"I’m dismayed that while the Democrats are complaining about [how] the Republicans and Donald Trump are trying to suppress the vote, they’re doing exactly the same," Wakely said.

The 21st District is now held by Rep. Chip Roy, R-Austin, and he is on the DCCC's seven-seat target list this cycle in Texas. His Democratic opponent, Davis, is the former state senator from Fort Worth and 2014 Democratic nominee for governor.

Not paying filing fees is not the only way a third-party candidate could be knocked out of contention, though. In the state Supreme Court race, Green Party candidate Charles Waterbury abandoned his bid last week after Democratic nominee Amy Clark Meachum asked the court to declare him ineligible because he voted in this year's Democratic primary, according to the Austin American-Statesman. State law says such candidates cannot represent one party in the general election if they voted in another party's primary earlier in the same election cycle.

Third parties could have a sizable impact in Texas this fall, when ascendant Democrats are anticipating numerous close races up and down the ballot.

There were already a number of examples last cycle where third-party candidates drew a not-insignificant amount of votes. In the 23rd Congressional District, a perennial battleground, Libertarian nominee Ruben Corvalan took 4,425 votes, while U.S. Rep. Will Hurd, R-Helotes, defeated Democratic challenger Gina Ortiz Jones by just 926 votes.

In the 21st District last cycle, the Libertarian candidate, Lee Santos, garnered 7,542 votes. That was not far off from Roy's margin of victory over Democratic opponent Joseph Kopser: 9,233 votes.