REVISED JANUARY 13, 2012

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                    No. 11-20035                          FILED
                                                                      January 12, 2012
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
DAVID BUREN WILSON,

                                                 Plaintiff-Appellant

v.

GERALD BIRNBERG, In His Capacity as Chairman of the Harris County
Democratic Party; BEVERLY KAUFMAN, Harris County Clerk; HOPE
ANDRADE, Secretary of State; GREG ABBOTT, Texas Attorney General;
EDWARD EMMETT, Harris County Judge,

                                                 Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas



                         ON PETITION FOR REHEARING


Before DAVIS and SOUTHWICK, Circuit Judges.*
LESLIE H. SOUTHWICK, Circuit Judge:


       *
         Judge Smith participated in the original decision of this case. Subsequent to the
release of that opinion, a basis for recusal arose. Judge Smith has not participated in the
rehearing, and this matter is being decided by a quorum. 28 U.S.C. § 46(d).
                                  No. 11-20035

      Appellant’s Petition for Rehearing is GRANTED. We withdraw the prior
opinion, 

, and substitute the following.
      David Buren Wilson brought suit against various officials arising from his
name not being placed on the 2010 primary election ballot in Houston, Texas.
His complaint was dismissed for failure to state a claim. We AFFIRM in part
and REVERSE and REMAND in part.
      On January 4, 2010, Wilson filed an application to run in the Democratic
Party primary election for Harris County Commissioner. The application was
filed 15 minutes before the close of business on the last day applications were
taken. The application must list the candidate’s residential address. Tex. Elec.
Code § 141.031(a)(4)(I). Four days later, Harris County Democratic Party
Chairman Gerald Birnberg denied the application and cited Wilson’s failure to
provide his residential address. See Tex. Elec. Code § 141.032(e) (defective
application is to be rejected). Birnberg said the sole reason he withheld ballot
certification was his conclusion that the address listed on the application was not
for Wilson’s residence as required by the statute. Wilson’s name was never
placed on the primary ballot. He failed to gain relief in various state courts.
      In September 2010, Wilson sued Birnberg and other government officials
in the United States District Court for the Southern District of Texas. He
claimed a denial of a right to ballot access and violations of the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. Wilson later added a
claim that Section 141.032 of the Texas Election Code is unconstitutional on its
face. He sought injunctive relief and damages under 42 U.S.C. § 1983. The
district court dismissed the case for failure to state a claim.
                                 DISCUSSION
      A motion to dismiss for failure to state a claim requires close examination
of the operative complaint. In this case, there were three complaints. The

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                                   No. 11-20035

motion to dismiss was filed four days after the original complaint was filed, and
one day after the first amended one was filed. The motion solely discussed the
original complaint and was never revised to discuss either of the later ones. The
second amended complaint was filed 18 days after the original one. The district
court in ordering dismissal held that because all the complaints were
“substantially similar,” Birnberg’s arguments were applicable to all. We find
only one minor change in the first amended complaint, but the next one – the
first shown to have been written by counsel – was substantially new.
      A party has the right to amend a pleading one time if done within 21 days
of its service. Fed. R. Civ. P. 15(a)(1)(A). Later amendments are permitted “only
with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P.
15(a)(2). We interpret the district court’s consideration of the motion to dismiss
as applicable to all three complaints to be an implicit granting of leave to file the
second amended complaint. Had the district court held that the last complaint
would not be considered, then the plaintiff could have sought leave to amend.
We will not insist on the formalities now when the district court did not. The
district court was dismissing the case, making Rule 15 less important. On
remand, though, the district court should insist on a single operative complaint.
      We review de novo a district court’s dismissal for failure to state a claim.
True v. Robles, 

, 417 (5th Cir. 2009). A complaint will survive a
motion to dismiss if its facts, accepted as true, “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 

, 570 (2007). A
court’s analysis generally should focus exclusively on what appears in the
complaint and its proper attachments.         Fin. Acquisition Partners L.P. v.
Blackwell, 

, 286 (5th Cir. 2006). We make all inferences in a
manner favorable to the plaintiff, “but plaintiffs must allege facts that support



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                                  No. 11-20035

the elements of the cause of action in order to make out a valid claim.” City of
Clinton v. Pilgrim’s Pride Corp., 

, 152-53 (5th Cir. 2010).
      There is facial plausibility “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 

, 1949 (2009).
      Dismissal is improper “if the allegations support relief on any possible
theory.” Cinel v. Connick, 

, 1341 (5th Cir. 1994). The question at
the motion to dismiss stage is whether, “with every doubt resolved in the
pleader’s behalf, the complaint states any legally cognizable claim for relief.”
5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1357, at 640 (3d ed. 2004). The inquiry focuses on the entirety of the complaint,
regardless of how much of it is discussed in the motion to dismiss.


I. Mootness
      We must first consider the jurisdictional issue of mootness. A suit may
become moot only as to a particular form of relief. Therefore, we separately
analyze mootness as to the claims supporting money damages and for equitable
relief. Henschen v. City of Houston, 

, 587 (5th Cir. 1992).
      Generally, a request for an injunction is moot “upon the happening of the
event sought to be enjoined.” Harris v. City of Houston, 

, 189 (5th
Cir. 1998). The requested injunctive relief included judicial orders that would
have affected the November 2010 election, such as placing Wilson’s name on the
ballot. That is now impossible. Claims solely supporting that remedy are moot.
Willy v. Admin. Review Bd., 

, 494 n.50 (5th Cir. 2005).
      Wilson also seeks a declaration that the statute requiring the rejection of
a non-compliant application is unconstitutional.        See Tex. Elec. Code §


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                                  No. 11-20035


141.032(e). The applicant is to be given notice of the reasons for the rejection,
which would then allow correction if that is possible. 

this
statute fails to provide for a hearing, denying Wilson meaningful access to the
courts. Should the statute be declared unconstitutional, Wilson also seeks to
have the Texas Secretary of State ordered “to issue a directive to all election
officials to enjoin enforcement of Texas Election Code § 141.032.”
      We do not determine whether the claim for equitable relief regarding
Section 141.032 is now moot. That is because we later have to address on the
merits the supposed constitutional violation on which the equitable relief would
be based. If Wilson’s constitutional rights were violated, and if that violation
“caused actual damage,” then he has “stated a live claim under § 1983.”

. Therefore, Wilson’s claims will need to be analyzed
for purposes of determining whether damages are available. In that analysis,
we determine the only viable constitutional claim arises from the guarantee of
equal protection under the Fourteenth Amendment. Because the other claims
fail on the merits, there can be no damages. We need not determine whether
those non-existent constitutional violations that will not support a damage
award might also be moot for purposes of other relief. The review that follows
of the potential mootness of the request for injunctive relief is therefore solely
in the context of equal protection.
      The State argues that all relevant issues for declaratory or injunctive relief
are moot now that the election has passed. Wilson invokes the capable-of-
repetition, yet evading-review exception to mootness. Generally that exception
has two requirements: “(1) the challenged action was in its duration too short to
be fully litigated prior to its cessation or expiration, and (2) there was a
reasonable expectation that the same complaining party would be subjected to


                                        5
                                 No. 11-20035


the same action again.” Kucinich v. Tex. Democratic Party, 

, 164
(5th Cir. 2009) (quoting Weinstein v. Bradford, 

, 149 (1975)).
      We concluded in Kucinich that in election-law cases, the Supreme Court
has not always required that there be a likelihood that the same complaining
party will be subject to the challenged action later. 

(collecting
cases).   On some occasions, the Court has dispensed with the same-party
requirement and focused “instead upon the great likelihood that the issue will
recur between the defendant and other members of the public at large.” 

(quoting Honig v. Doe, 

, 335-36 (1988) (Scalia, J., dissenting)).
We agree with a Sixth Circuit judge that “the Supreme Court, this Court, and
several of this Court’s sister circuits have relaxed the same party requirement
in the election law context.” Libertarian Party of Ohio v. Blackwell, 

, 600 (6th Cir. 2006) (Clay, J., concurring and dissenting).
      It is certainly true, as we noted in Kucinich, that the Supreme Court
mentioned in two recent election-law cases that the “plaintiff had specifically
alleged a likelihood that he would again be adversely affected.” 

(citing Davis v. FEC, 

, 736 (2008) (candidate stated
intent to run again) and FEC v. Wis. Right to Life, Inc., 

, 462-63
(2007) (similar)); accord Moore v. Hosemann, 

, 744-45 (5th Cir.
2009). The First Circuit concluded from those recent opinions that mootness can
be avoided only if the same complaining party will be affected in the future.
Barr v. Galvin, 

, 105-06 (1st Cir. 2010). Though we disagree the
Supreme Court created such a rule, we do agree that “not every election case fits
within [the] four corners” of the capable-of-repetition but evading-review
exception. 

We were unwilling to dismiss Kucinich’s case as moot
because the same controversy was likely to recur. 

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                                 No. 11-20035


(citing Storer v. Brown, 

, 737 n.8 (1974)). Earlier, we held that an
election case is not moot when “other individuals certainly will be affected” by
the complained-of injury. Ctr. for Individual Freedom v. Carmouche, 

, 662 (5th Cir. 2006).
      Applying these principles, we discern only one theory that could be
pursued as a denial of equal protection. It is that Birnberg had an animus
towards Wilson, causing Birnberg to treat Wilson’s application differently than
those of other potential candidates. This is a claim of a highly individualized
equal protection violation. To be capable of repetition, the election official
processing his paperwork would again need to be Birnberg and he would need
again to manifest allegedly discriminatory animus in excluding Wilson from the
ballot. Regardless of our Kucinich analysis that the same party might not need
to show he would later be subject to the same improper action, here the nature
of the claim is strictly personal to Wilson. In the absence of an assertion by
Wilson that he plans to run again, there is no “‘reasonable expectation’ or a
‘demonstrated probability’ that the same controversy will recur.” Murphy v.
Hunt, 

, 482 (1982). There is no basis on which to find that other
members of the public will experience it.
      Wilson also demanded a new general election. A court will only invalidate
an election “in exceptional circumstances, usually when there has been egregious
defiance of the Voting Rights Act.” Lopez v. City of Houston, 

, 340
(5th Cir. 2010). Wilson’s claims do not warrant that extraordinary remedy.
      In summary, no equitable relief is appropriate either because the relief is
moot or because we determine when examining the claims for damages that no
constitutional violation occurred that would support such relief.



                                       7
                                   No. 11-20035


II. Constitutional Claims
      Birnberg’s actions caused Wilson not to be listed on the ballot, a result
which Wilson claims violated several constitutional rights. We will discuss
procedural due process, the political rights protected by Anderson v. Celebrezze,

(1983), substantive due process, and the Equal Protection Clause.
We also will assess Wilson’s challenge to the constitutionality of the election
statute in question.
      A. Claims Arising from Birnberg’s Conduct
                            1. Procedural Due Process
      In order for a person to have a procedural due process claim that damages
or other relief can remedy, he must have been denied life, liberty, or property
protected by the Fourteenth Amendment. Meza v. Livingston, 

, 399
(5th Cir. 2010). The district court held that Wilson had no property right to be
a candidate, citing Velez v. Levy, 

, 86-87 (2d Cir. 2005). That court
relied on a Supreme Court opinion that explained, the “unlawful denial by state
action of a right to state political office is not a denial of a right of property or
liberty secured by the due process clause.” Snowden v. Hughes, 

, 7
(1944). Earlier the Court had held that “public offices are mere agencies or
trusts, and not property as such” and that “the nature of the relation of a public
officer to the public is inconsistent with either a property or a contract right.”
Taylor and Marshall v. Beckham, 

, 577 (1900); see also 

(re-affirming Taylor).
      Wilson correctly notes that since Taylor and Snowden were decided, the
Supreme Court has charted a somewhat new course in defining property under
the Fourteenth Amendment. For example, the Court has explained that a
property interest can be created and “defined by existing rules or

                                         8
                                  No. 11-20035


understandings that stem from an independent source such as state law.” Bd.
of Regents of State Colls. v. Roth, 

, 577 (1972); see also Matthews v.
Eldridge, 

(1976) (social security entitlement); Goldberg v. Kelly,

(1970) (public welfare benefits). Though these “intervening cases
may cast a shadow over Taylor and Snowden, ‘it is the Supreme Court’s
prerogative alone to overrule one of its precedents.’” 

(quoting State Oil Co. v. Khan, 

, 20 (1997)).
      Thus, we continue to hold that public office does not constitute property
within the meaning of the Due Process Clause. In a case post-dating the modern
due process caselaw, this circuit explained that a candidate who claimed his
opponent was improperly declared the winner of an election had not been denied
a property right. Gamza v. Aguirre, 

, 452 n.3 (5th Cir. 1980). That
same year, we recognized “there is no constitutional right to run for state office
protected by the Fourteenth Amendment.” Williams v. Bd. of Regents of Univ.
Sys. of Ga., 

, 998 n.9 (5th Cir. 1980) (citing 

). Our sister circuits also recognize these precedents as still vital. See, e.g.,
Abeyta v. Town of Taos, 

, 327 (10th Cir. 1974); Burk v. Peck, 

, 165 (6th Cir. 1972) (citing Taylor, 

); 

.
Accordingly, because Wilson lacks an interest protected by procedural due
process, we affirm the district court’s dismissal of that cause.
                           2. Burden on Ballot Access
      Wilson next argues that the Constitution protects his interest in obtaining
a place on the ballot based on his interpretation of Anderson v. Celebrezze, 

(1983). We recently described Anderson and a later Supreme Court
decision as requiring courts to “balance the individual’s rights [to ballot access]



                                         9
                                       No. 11-20035


against state imposed requirements.” 

n.6 (citing
Anderson and also Burdick v. Takushi, 

, 433 (1992)).
       We start by identifying the nature of the right recognized in Anderson and
Burdick. The Supreme Court explained that laws pertaining to ballot access
burden “two different, although overlapping kinds of rights – the right of
individuals to associate for the advancement of political beliefs” rooted in the
First Amendment, and “the right of qualified voters . . . to cast their votes
effectively.” 

.1
       The question in Anderson was whether the state of Ohio had “placed an
unconstitutional burden on the voting and associational rights” of the supporters
of independent Presidential candidate John Anderson. 

.   The Court agreed that the state’s scheduling of the candidate-filing
deadline early in the year created an improper burden, inasmuch as there were
not significant state interests in the early date and there were substantial voter
interests in having a wide choice of candidates for President. 

       By contrast, Wilson does not seek to use this doctrine to challenge the
constitutionality of a statute or election rule. Compare 

(challenge to party loyalty oath); 

(objection to
prohibition on write-in candidates); Hatten v. Rains, 

, 688 (5th Cir.
1988) (attack on mandatory retirement age for judicial candidates); Zielasko v.
Ohio, 

, 958 (6th Cir. 1989) (similar). He does not argue that



       1
        The aspects of the right to vote identified in Anderson find shelter in the Fourteenth
Amendment, and stem from the “‘fundamental rights’ strand of equal protection analysis.”

n.7; see also 

(the Equal Protection Clause
grants voters a “narrow substantive right” to equality with other voters). Conversely,
substantive due process rights originate in the concept of “liberty” in the Due Process Clause.
See Washington v. Glucksberg, 

, 719-20 (1997).

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                                  No. 11-20035


compelling a candidate to list his residential address on his application is an
improper burden. Tex. Elec. Code § 141.031(a)(4)(I). Below we reject his
argument that the process provided under the statute is unconstitutionally slim.
Had Wilson argued that there was some interest of his that outweighed the
state’s interest in having candidates declare where they live, then Anderson and
similar cases might be applicable. They are not applicable here.
                           3. Substantive Due Process
      To the extent that Wilson seeks to assert a distinct cause of action under
substantive due process, that claim must fail. “[W]here another provision of the
Constitution provides an explicit textual source of constitutional protection, a
court must assess a plaintiff’s claims under that explicit provision and not the
more generalized notion of substantive due process.” Conn v. Gabbert, 

, 293 (1999) (quotation marks and citation omitted). Here, Wilson’s claims
are rooted in procedural due process, the Equal Protection Clause, and the First
Amendment. Those provisions are our exclusive guideposts. Cuadra v. Houston
Indep. Sch. Dist., 

, 814 (5th Cir. 2010); see also 

(“[P]laintiffs seeking redress for [specifically] prohibited conduct in a § 1983
suit cannot make reference to broad notion of substantive due process.”).
                          4. Equal Protection Violation
      The usual equal protection challenge is “that a statute discriminates on its
face . . . against certain [protected] groups or trenches upon certain fundamental
interests.” E & T Realty v. Strickland, 

, 1112 n.5 (11th Cir. 1987).
Equal protection also protects against the “unlawful administration by state
officers of a state statute fair on its face, resulting in unequal application to
those who are entitled to be treated alike.” 

(quoting 

). To be a “class of one,” the plaintiff must establish (1) he was

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                                  No. 11-20035


“intentionally treated differently from others similarly situated” and (2) there
was no rational basis for any such difference. Whiting v. Univ. of So. Miss., 

, 348 (5th Cir. 2006) (quoting Vill. of Willowbrook v. Olech, 

,
564 (2000)). These “isolated events that adversely affect individuals”
presumptively do not violate equal protection. 

.
      Wilson alleged that Birnberg intentionally deprived him of ballot access
by, as the complaint states, “rejecting Wilson’s application out of retaliation for
Wilson’s exercise of free speech.”   Specifically, Wilson claimed that during a
prior election he had distributed flyers critical of the successful Democratic
mayoral candidate, Annise Parker.         This is “factual content” supporting
Birnberg’s liability “for the misconduct alleged.” 

.
      The election for which Wilson was denied a place on the ballot was a
primary to select the Democratic Party’s nominee for Harris County
Commissioner’s Court, Precinct No. 4. Birnberg chairs the Harris County
Democratic Party and the county seat is Houston.           There were no other
Democratic candidates. Wilson filed his application for candidacy in the last
hour of the last possible day, which meant that had his filing been accepted, he
would have become the Democratic Party nominee by default.
      The facts pled are that a political-party chairman denied an application
on an improper basis in order to prevent a critic of the mayor from receiving her
party’s nomination. “The plausibility standard [for a complaint] is not akin to
a ‘probability requirement’ . . . .” 

does not permit us to affirm
the district court’s dismissal of this claim unless we determine “it is beyond
doubt” that Wilson “cannot prove a plausible set of facts” to support his
allegations. Lane v. Halliburton, 

, 557 (5th Cir. 2008).



                                        12
                                   No. 11-20035


      Pursuant to the election code, a ballot application must include “the
candidate’s residence address,” unless the residence lacks an address in which
case a personal mailing address “and a concise description of the location of the
candidate’s residence” will suffice. Tex Elec. Code § 141.031(a)(4)(I). Wilson’s
complaint states he “was an eligible candidate” and that his “voter history, and
Texas driver[’s] license and other documents show that Plaintiff’s residence is
correctly stated in his application.” It asserts that by virtue of that fact,
Birnberg’s “ministerial duty mandated that [he] certify and place Plaintiff’s
name on the primary election ballot.”
      In an affidavit affixed to his motion to dismiss, Birnberg claimed he
reviewed marriage and other records to determine that the address Wilson
supplied on his application was not actually for his residence. Consequently,
Wilson’s application failed to comply with the election law. We are at the motion
to dismiss stage, however, and “courts must limit their inquiry to the facts stated
in the complaint and the documents either attached to or incorporated in the
complaint.” Lovelace v. Software Spectrum Inc., 

, 1017 (5th Cir.
1996).   At this stage, Birnberg’s rebuttals must be ignored and Wilson’s
assertions taken as true. See 

.
      When dismissing the equal protection claim, the district court cited Gold
v. Feinberg, 

, 802 (2d Cir. 1996). That opinion held that where
there “exists a state law remedy to the election irregularities that is fair and
adequate, human error in the conduct of elections does not rise to the level of a
Fourteenth Amendment constitutional violation actionable under § 1983 in the
absence of willful action by state officials intended to deprive individuals of their
constitutional right to vote.”     

; see also 

(explaining that plaintiff’s action arose under equal protection).


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                                  No. 11-20035


      Reliance on this principle is premature.       Wilson alleged intentional
discrimination, not unintended irregularities. Had Wilson not alleged that his
application was compliant, Birnberg’s motivations might have been irrelevant
inasmuch as the statute mandates that a non-compliant application be rejected.
See Tex. Elec. Code § 141.032(e); 

The complaint claimed enough.
Further proceedings are needed to determine whether Wilson in fact submitted
a proper application and, if he did, whether Birnberg purposefully discriminated
or simply made an “error or mistake in judgment.” E&T 

; cf. 

-54.
      The dismissal of the equal protection claim is reversed and remanded.
      Birnberg has moved to have the newly chosen chair of the Harris County
Democratic Party replace him as a defendant. We deny the motion without
prejudice to the right to renew it in the district court. This suit had not
progressed beyond a motion to dismiss for failure to state a claim, leaving factual
questions unaddressed that may be relevant to the motion. There is no question
that a political party in its conducting of state-authorized primary elections is
performing a function “under color of any statute,” and Section 1983 is
potentially applicable to the conduct. See 1A Martin A. Schwartz, Section 1983
Litigation: Claims and Defenses § 5.18, at 5-180 (4th ed. 2011). Less clear is the
answer to whether the new party leader is the proper defendant. Unless
substitution is unopposed, briefing and argument would be beneficial.
      B. Challenge to the Election Statute
      Wilson argues that the relevant statute did not provide the constitutional
minimum process he was due. The entire section reads, “If an application does
not comply with the applicable requirements, the authority shall reject the



                                        14
                                  No. 11-20035


application and immediately deliver to the candidate written notice of the reason
for the rejection.” Tex. Elec. Code § 141.032(e).
      Procedural due process challenges must demonstrate that the “state has
deprived a person of a liberty or property interest”; if it has, “we must determine
whether the procedures relative to that deprivation were constitutionally
sufficient.” Welch v. Thompson, 

, 639 (5th Cir. 1994). As explained
already, Wilson has no property interest in being a candidate for public office.
Thus, his challenge fails on that basis alone.
      Because the older caselaw dealing with the absence of a property interest
in public office might be considered suspect, we also analyze whether the Texas
statute provides too little process. Three factors are considered in identifying
the process that is due: (1) the private interest affected, (2) the risk of an
erroneous deprivation with the process supplied, and (3) the government’s
interests. See Swindle v. Livingston Parish Sch. Bd., 

, 397-98 (5th
Cir. 2011) (quoting Matthews v. Eldridge, 

, 334-35 (1976)).
      The first factor, which focuses us on the private interests of potential
candidates, is significant in view of the rights the Supreme Court has held to be
implicated. See 

.
      The other two factors weigh against Wilson’s claim.            There is no
appreciable risk of deprivation under Texas Election Code Section 141.032(e).
The provision requires immediate, written notice that contains the “reason for
the rejection.” This gives applicants an opportunity to have a defect promptly
addressed or to seek relief in court. See also Tex. Elec. Code § 273.081 (person
harmed under Texas Election Code may seek injunctive relief). Section 141.032
“serves as a safety net for candidates who file their applications early in the
filing period, assuring that individuals willing to commit to public service will


                                        15
                                  No. 11-20035


receive the assistance of party officials in complying with the myriad and
technical requirements for becoming a party candidate.” In re Gamble, 

, 318 (Tex. 2002).
      In weighing the governmental interest, we consider the specific “function
involved and the fiscal and administrative burdens that additional or substitute
procedural requirements would entail.” 

(quoting

). Particularly salient is “the ability of States to
operate elections fairly and efficiently.” 

. Texas has an
important interest in evaluating the eligibility of office seekers. State regulation
of elections is necessary “if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic processes.” 

(quotation marks and citation omitted). If the state election requirement is non-
discriminatory and reasonable, “the State’s important regulatory interests are
generally sufficient to justify” the restrictions. 

(quoting 

). The challenged statute is constitutional.
      We AFFIRM in all respects except for Wilson’s equal protection claim as
to Birnberg as party chairman. The dismissal of that claim is REVERSED and
the claim is REMANDED. The motion for substitution of a party defendant is
DENIED without prejudice.




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