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Escape Hatch for Texas Democrats, Republicans

Published on August 30, 2008, by in General.

Although that it seems undisputed that both the Republican and Democratic Parties missed the August 26 Texas deadline for filing a certificate naming their presidential and vice-presidential nominees, there are two Texas Supreme Court decisions that say that candidates should not suffer the loss of ballot access due to the mistakes of state party officials. The cases are Davis v Taylor, 930 SW 2d 581, and Bird v Rothstein, 930 SW 2d 586. The first case put a Republican nominee for State Court of Appeals Justice on the November ballot; the second one put a Democratic nominee for state house on the November ballot.

Texas parties play a big role in Texas primary elections. Candidates running for a party nomination file declarations of candidacy with their party, not with any county or state official. Therefore, party officials have serious responsibilities for certifying various kinds of paperwork, and sometimes they make mistakes.

Given the Davis and Bird precedents, it seems plausible that Texas cannot enforce its law that requires unqualified parties to file a notice with the Secretary of State on January 2 of any election year, that it intends to petition later that year. The responsibility to file such a form rests with party officers. If they fail to file the form, but the party later submits a petition and nominates candidates, the candidates ought to be able to use the Davis and Bird precedents, along with any precedent created this year to help John McCain and Barack Obama, to avoid suffering any consequences for the failure to file the form. This policy also raises equal protection problems for the state, relative to independent candidates. In 2004, Ralph Nader submitted his independent presidential petition two weeks late. He submitted it on the more lenient deadline for minor party petitions, but the federal courts upheld the earlier deadline and kept Nader off the ballot.

14 Responses

  1. Jim R

    In Texas, a state party, that is authorized or required to hold a primary to nominate candidates for state and other offices, may place its presidential ticket on the November general election ballot, IF it holds a presidential primary (if the national party intends to hold a national convention). Further, the state party is required to allocate at least 3/4 of the delegates (with some exceptions) to the national convention on the basis of the presidential primary.

    Further, if the state party fails to provide rules with regard to its presidential primary and the allocation of delegates to the national convention prior to the presidential primary, the Secretary of State is required to notify county election officials to exclude the party’s presidential election candidates from the general election ballot.

    See Texas Election Code Chapter 192 Subchapter A, in particular § 191.001 (e).

    So if the Texas Democratic and Republican parties wish to place a presidential candidate on the general election ballot, they must hold a presidential primary, and allocate a significant share of the delegates to the national convention on the basis of that primary. While it is not explicit that the presidential candidates placed on the Texas general election ballot would be chosen by the national party convention, it is a reasonable inference. The state parties might have even formally adopted in their rules that the presidential candidates would be those chosen by the national convention.

    The Texas law that requires participation in the national convention, and the Texas law that requires filing of the presidential nominees prior to 70 days before the general election are in conflict.

    The state parties would win any legal challenge, especially since the reason for the 70-day deadline is so that the Secretary of State can comply with a 62-day deadline to notifiy the county election officials of the presidential (and other candidates), so that the the county election officials can prepare the ballot for mailing for overseas voters 45 days prior to the election (in order to comply with federal law), and it appears from the Secretary of State website that they will be able to notify the counties in time.

  2. Tannim

    The federal Nader ruling is the applicable case law, because A) it directly addresses the Presidential race, and B) it trumps the state rulings which only apply to state offices.

    191.001 was discussed on an earlier thread and found to only apply to state offices, not federal ones.

  3. Tannim

    Redtract that last statement on 191.001 applying to state offices. That was 181.005, my mistake.

    191.001 does not exempt the parties from the requirements of 192.031, which they did not meet. There is no conflict in the law–they must meet all the requirements, and if the parties set up their conventions so they could not, then that is their problem and they must accept the consequences.

    Furthermore,”significant” is a subjective term open to interpretation, and the delegates determined at the primary were soft-pledged to the state convention, and national delegates were decided at the state convention, so it is correct to say that no national delegates were decided by the primary. That effectively kills 191.001 as an argument.

  4. so is this good news?

  5. Michael Morrison

    The law is always applied equally: Neither the rich man nor the poor man is allowed to sleep under the bridges nor beg in the streets.

  6. Every one is ‘out of step’ but Texas, and may be OKlahoma………….

  7. Jim R

    Re #3: It is impossible to comply with both 191.001 and 192.031, except in a perfunctory and superficial manner.

    The national parties called a national convention. If the state parties wished to place presidential candidates on the November ballot, they were required to hold a presidential primary; use the results of the primary to allocate most of the delegates to the national convention; and select the actual delegates at a state convention.

    The state of Texas’s rationale for these requirements is obvious. They want Texas voters to be involved in the nominating process of the national party conventions. It defeats that purpose if the delegates are selected, but the nominees must be determined prior to the convention.

  8. Steve

    Has anyone been able to find the opinion, court, case number for Bird v Rothstein? The best I can do is in the texas supreme court is a case 96-0910 that a final descision was made on Oct 2nd, 1996. That the case was a writ of mandamus and was denied? I have yet to figure out whuch court of apeals it had to pass through and which court it originated in? It looks like cases before Oct 1997 are not electronic.

    I have found Davis v Taylor.

  9. Steve

    I have found Bird v. Rothstein referenced in 04-0608 Texas Supreme Court. http://www.supreme.courts.state.tx.us/ebriefs/04/04060802.pdf

    IN RE FROST NATIONAL BANK, FORMER EXECUTOR OF THE ESTATE OF ELENA SUESS KENEDY, DECEASED; FROST NATIONAL BANK AND PABLO SUESS, TRUSTEES OF THE JOHN G. KENEDY, JR. CHARITABLE TRUST; AND
    THE MISSIONARY OBLATE FATHERS OF TEXAS
    * * *
    REPLY TO RESPONSE TO PETITION FOR WRIT OF MANDAMUS

    In Rivercenter Assoc. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding), this Court held that an unexplained delay by those who “slumber on their rights” may justify denial of a mandamus petition. Here, the Relators have explained the delay. Further, laches applies only if the Real Party has demonstrated harm, which Fernandez has failed to establish.

    Regardless, laches will not bar the right to relief when important interests are at stake. Bird v. Rothstein, 930 S.W.2d 586, 588 (Tex. 1996) (orig. proceeding).

    (explaining that “[t]wo essential elements of laches are (1) unreasonable delay by one having legal or equitable rights in asserting them; and (2) a good faith change of position by another to his detriment because of the delay”).

  10. Steve

    If any one lives in or near Austin Texas a copy of the Texas Supreme Court Rulling on Bird v. Rothstein case number 96-0910 should be found at:

    Texas State Law Library | 205 West 14th Street | Austin, Texas 78701-1614 | (512) 463-1722 | Fax (512) 463-1728 |

    The publication date of the descision was October 2nd, 1996 and Texas doesn’t have electronic records of court decsions available on line before (I think) September of 1997.

  11. Steve

    Looks like I am also short Davis V Taylor case: 96-0872 Filed: 9/25/1996

  12. Tannim

    Sorry, Jim R, but you’re wrong. Both sections can be satisfied by eliminating the TX caucuses and allocating national delegates by primary only, and moving the national convention to earlier. The major parties know this but screw around with it anyway.

  13. Steve

    Here is a link to a recrding of the arguments for Davis v. Taylor

    http://www.supreme.courts.state.tx.us/oralarguments/1996/96-0872.edited.mp3

  14. Jim Riley

    Tannim, Re: #12.

    Texas parties are required to hold precinct conventions which eventually lead to county and state conventions. Under Texas law, the parties are required to select their national delegates at the state convention. Surely, they could not be expected to comply with some sections of Texas law, by violating others.

    You’re also misunderstanding the Texas Democrat’s convoluted delegation selection process. State law requires 3/4 of national delegates (other than party and elected official) to be allocated on the basis of the primaries – the actual details of the allocation are set by party rule. Texas Democrats allocated other delegates based on the precinct (and succeeding) conventions They skirted the 3/4 rule by also allocating “elected official” seats on the basis of the precinct conventions, even though that simply meant the selected delegate might be a city councilman.

    In any case, since the state conventions were held in June, this had no effect on the ability of the state parties to comply with the premature deadline set by Texas.

    The Texas parties could not require the national parties to hold their conventions in time to comply with Texas law. But under Texas law, they could not place candidates on the general election ballot if they did not hold a primary and select delegates for the national convention.

    This gave the parties three “choices”

    (1) Not place a candidate on the general election ballot;

    (2) Hold a presidential primary and select delegates to the national convention; but submit the name of the nominees to the state of Texas prior to the national convention having selected them.

    (3) Hold a presidential primary and select delegates to the national convention, participate in the convention, and submit the names of the nominees after the deadline, but in sufficient time for the Secretary of State to certify the candidates to county election officials.

    (1) and (2) are not real options and would not be upheld by a federal court as being constitutional.

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