TX3: Private election actions don’t lead to unreasonable searches: it’s private action and court can intercede

Texas provides for a private right of action in some election matters. The statutes are not facially unconstitutional under the Fourth Amendment or Fourteenth Amendment due process in potential civil discovery disputes because these are private parties asking, and the trial court has the power to issue protective orders for confidential information. King St. Patriots v. Texas Democratic Party, 2014 Tex. App. LEXIS 11096 (Tex. App. – Austin October 8, 2014), 2014 Tex. App. LEXIS 13058 (Tex. App. – Austin December 8, 2014) (substituted opinion on rehearing):

Appellants’ arguments also focus on the lack of standards for discovery and initiating a suit within the private-right-of-action provisions to support their position that the provisions violate the Due Process Clause and the Fourth Amendment. See U.S. Const. amends. IV, XIV, § 1. They urge that the private-right-of-action provisions violate the Fourth Amendment because they do not require a showing of probable cause prior to allowing discovery. They contend that discovery initiated by a person acting under color of state law is a Fourth Amendment search and, therefore, that probable cause is required. Otherwise, they urge, the government could circumvent probable cause requirements by awaiting discovery in a civil proceeding. As to the Due Process Clause, appellants urge that the sections fail to provide the necessary “procedural safeguards” to prevent “‘unbridled discretion’ via discovery to seize constitutionally protected documents and communications, even if the private enforcers lose on their claims.”

In any case, a private suit brought under the Election Code has procedural safeguards in place to protect defendants from unnecessary or overly intrusive discovery. Such suits are subject to the laws that apply to civil suits generally, such as the Texas Rules of Civil Procedure and the Texas Rules of Evidence. The Texas Rules of Civil Procedure provide guidelines for discovery and allow trial courts to limit discovery to protect confidential information. See Tex. R. Civ. P. 192.6. The rules, as well as statutes, also allow trial courts to award sanctions for discovery abuse and remedies for frivolous suits. See, e.g., Tex. Civ. Prac. & Rem. Code §§ 10.001-.006; Tex. R. Civ. P. 13, 215. And sections 253.131 and 253.132 allow the recovery of attorney’s fees for a successful defendant. See Tex. Elec. Code §§ 253.131(e), .132(c).

The Due Process guarantees, however, only provide protection against state action. See Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478, 485 (1988); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974); Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (noting that since 1883, “principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States” and that the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrong”). Similarly, the Fourth Amendment protections generally only apply to state action. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989). Although the Fourth Amendment provides protection against a search or seizure by a private party if the private party is acting as an instrument or agent of the government, there was no evidence that TDP was acting as an agent or instrument of the government here, see id., and, even if there were such evidence, that would not satisfy appellants’ burden to show that the statute is facially unconstitutional. See City of Corpus Christi, 51 S.W.3d at 240-41.