I couldn’t find the Oklahoma case, but I bet dollars to donuts it had to do with Oklahoma’s practice of switching registrations back to independent after a party is unsuccessful.

In Texas, anyone can create a party and engage in a nomination activity. If enough people participate in the nomination process then the nominees are placed on the general election ballot.

This is the reverse of States where a small cadre can pick the candidates and then seeks endorsements from the public of the core did; or States where you have to petition for the right to create a party, and only then can you undertake nomination activities.

In Texas, the Republicans and Democrats do not have the right to place nominees on the ballot. They have the right to conduct primaries to determine nominees.

Even if HB 1821 were passed, a voter would have to be able to register as a affiliant of a party that may not formally exist (eg. SalmonYoga) or may not had recent nomination activities (eg. Green Party). Because candidates must declare in advance of the precinct convention, they would have to be able to register as an affiliate of the party. And to be able to organize a convention one would have to be an affiliate, as well as to participate in the precinct conventions. I shouldn’t have to anticipate which parties might organize, or it would prevent a party from organizing. So I would have to be able register as an affiliate of the SalmonYoga party. And since the law is quite explicit on the conditions under which the affiliation lapses: (1) I change it; or (2) I am disqualified as a voter, there would be no way to purge the registration.

It would simpler to keep the current system, de-regulate the timing of primaries and conventions, and permit a party to require pre-affiliation for whatever length of time they thought reasonable. If the Republicans wanted to require 30 days before the primary, you would simply have to locate a party official to let you take an oath of affiliation. If another party wanted to let you affiliate at the time of the primary, they could do that as well. Once you actively affiliate, you’re locked in for the year. Simple enough.

Getting back to the issue of HB 1821, and how to handle new parties, courts in Oklahoma and Nevada have ruled in the past that states can’t require new parties to choose candidates only from the ranks of their registered members. The Oklahoma case was won by the Libertarian Party in 1980 and was Crussel v State Bd. of Elections. The Nevada case was won in 1974 by the Independent American Party.

Current law requires a political party to nominate by primary if it received over 20% of the gubernatorial vote. It permits a party to nominate by primary if it received between 2% and 20% of the gubernatorial vote to nominate by primary or by convention.

Other parties, including new parties, are required to nominate by convention. The qualification standard for new parties is based on the number of participants in their precinct conventions, plus their supplementary petitions.

The new legislation would require all political parties to nominate by primaries. The standard for placement on the general election ballot appears to be reflective: if you hold a primary you can have your candidates on the general election ballot; and if you want to have your candidates on the general election ballot, you have to hold a primary.

It would appear to apply equally to existing parties that are required to nominate by primary (Democrats and Republicans); those which are required to nominate by convention; and new parties.

Qualification of a party therefore appears to be procedural and organizational, rather than numeric. A party is required to notify the Secretary of State that it intends to hold a primary, and create a state executive committee and adopt rules.

A political party is not required to organize a primary in each county. Neither the Republicans nor the Democrats had a primary in all 254 counties in 2008. Of course, if it doesn’t have a primary, it can’t nominate for county or precinct offices, nor for districts located within the county.

A party holding a primary is also required to hold a series of conventions, from precinct conventions through a state convention, but that is true of parties nominating by convention now.

It might be harder to find enough election judges than it is to get signatures on a petition. Qualifying for a primary ballot is more expensive than running for nomination by a convention.

Parties that are required to nominate by primary, are required to hold a presidential preference primary if they wish to place a presidential and vice presidential nominee on the ballot, but this is no additional burden, since the presidential preference primary is concurrent with the general primary.

Each December of odd-numbered years, county election officials send a voter registration certificate to voters. Under the proposed bill the certificate would include the party affiliation.

So this October, county election officials would be required to send out a notice to all voters giving them the opportunity to declare a party affiliation, and include a pre-paid post card to update their registration (the cost on this probably dooms the proposed bill).

Voters could still change their registration, but they would have to actively do this at least 30 days before the primary (January 30).

Since the whole idea behind the bill is to prevent voters choosing which primary they vote in on election day, it is not possible to permit voters to declare their party at that time.

Election Code Sec. 41.007. PRIMARY ELECTIONS. (a) The general primary election date is the first Tuesday in March in each even-numbered year.

(d) No other election may be held on the date of a primary election.

Now you have.

The current restriction on signing an independent candidate’s petition is to not have voted in a primary (or runoff) in which a candidate for the office (sought by the independent candidate) was on the ballot.

For example, if the Republicans had a primary to nominate a gubernatorial candidate; but no runoff was required. A voter could skip the primary, vote in the runoff, and then sign the petition of an independent gubernatorial candidate.

In 2006, supporters of Carole Keaton Strayhorn and Kinky Friedman were urged to skip the primary so that they could sign their independent nomination petitions for governor. Friedman ran advertisements urging would-be voters to “save themselves for Kinky”.

Presumably, Texas could argue that the current law prevents independent raiders from influencing the outcome of the primary, or disgruntled partisans from nominating a competitor of their party’s nominee.

It appears that the authors of the current bill did not recognize the nuance of the current law, and simply restricted all persons registered with a party from signing independent petitions.

A curiosity is that there is another bill that would make the State Board of Education a non-partisan office. Parties could not nominate candidates, and candidates would qualify as independents. Under current law, partisans could sign the independent petitions, because the office would not be on the primary ballot. Under the proposed bill this would not be true.

The current limitation on voters in a party primary not being permitted to participate in the convention of another party is a common sense regulation. Does it really make a difference whether that limitation is extended to registrants of another party (ie voters who register with a party, but skip the primary).

States like Ohio and Wisconsin have party primaries prior to special elections. They call them “special primary elections.” The final election is a special general election.

The Secretary of State’s office refers to them as the “primary election” and “primary runoff election”.

If Texas held primaries before special elections, they would presumably be called “special primary elections”.

Texas is already one of the tougher states for ballot access petitioning, and if this bill passes it would make ballot access petitioning there even more difficult than it is.