According to this story, anyone who signs a Texas petition this year for an independent candidate and who later votes in a partisan primary has (by the act of voting) disqualified his or her petition signature. However, the Secretary of State has told the Guadalupe County Elections Supervisor that all such signatures are presumed valid and will be counted, unless one of the major parties or one of its candidates files a challenge to such signatures.
Ballot Access News
Edited By Richard Winger
This one is particularly messy.
Guadalupe County Judge Mike Wiggins resigned effective April 30. Texas law provides that if there is a vacancy in a county office (4-year term) prior to the mid-term general election, a special election is held concurrent with the general election. Wiggins was elected in 2010, so the provision for a special election was triggered. An interim county judge who will serve until November was also appointed.
According to Election Code 201.023, the date of resignation for election purposes is the day the resignation is accepted, or 8 days following when the resignation is submitted. I think that the resignation was accepted on April 3 (it was on the commissioners court agenda for that day), and submitted on March 26 (per news reports). 8 days from March 26 is April 3. For election purposes, Texas permits anticipation of future vacancies. So even though the effective resignation date was April 30, the date for determining the procedure for making nominations was April 3.
Unlike special elections for the legislature and Congress, special elections for county and state offices do have party nominations.
If a party nominates by primary, and the vacancy occurs 62 or more days before the primary, then the nomination is made at the primary. This provision in Election Code 202.004 should have been changed last year when the MOVE Act was implemented, since 62 days is not long enough to have a filing period and prepare a ballot. But the court order did explicitly recognize this problem, and in any case, April 3 is only 56 days before the May 29 primary. There was a news article that complained that the resignation had been delayed in order to prevent a primary. The person making the complaint had lost the Republican nomination to Wiggins in both 2006 and 2010, so would be concerned that he might not have an opportunity to run in a primary now. The county is very Republican (up to 75%), so under ordinary circumstances, the Republican primary chooses who is elected.
If a party nominates by convention, and the vacancy occurs 4 or more days before the convention where the nomination would be made, the convention would make the nomination. In this case it would have been the Guadalupe County convention. I haven’t found any evidence of a Guadalupe county convention for the Libertarian or Green party, and in any case it would have been on March 17, before the resignation.
In cases where it is too late to nominate by primary or convention, a party may nominate by the appropriate executive committee, in this case it would be the county executive committee. For major parties, the county executive committee is comprised of the election precinct chairs. I don’t know whether any other parties have a county executive committee in Guadalupe County, or whether one can be formed at this time. So it may or may not be possible for the Libertarian, Green, and other parties to make nominations.
A voter or candidate in a primary, may not be an independent candidate if that (primary) nominated a candidate for the office. But since there are no nominations being made in the primary for the office of county judge (unexpired term), there is not a restriction on independent candidacy.
Further, since no parties nominated a candidate by primary, there is no restriction on signing petitions for independent candidates, other than the general restriction of only being permitted to sign the petition of one candidate per office.
In Texas, the restriction on being an independent candidate, or signing a petition is done on a per office basis.
It is possible, that the reporter, the county elections administrator, or the secretary of state office did not understand the particular (or peculiar) circumstances of this race.
Finally, there is the issue of the filing deadline for independent candidates. Under ordinary circumstances, the filing deadline for independent candidates is 30 days after the primary runoff. This makes it easy to check whether a voter had voted in a primary or runoff for the office in question, since the beginning of the petition signing period is after the last election that a voter could vote for that office in (ie if there are no runoffs for that office for any party, the signing period begins the day the primary; if there is a runoff for at least one party, signing begins the day after the runoff. So there is always a 30-day period for signing of independent petitions.
There is a special provision (Elections Code 202.007) that if a vacancy occurs after the runoff, there are still 30 days to sign an independent petition, unless this would infringe on the 70 days before a general election.
So there are some cases where it is too late to have a primary, but nonetheless the primary still controls the timing of petition signings.
The redistricting court order changed the date of the primary, runoff, and independent and new party (supplemental petition) filing deadlines.
The court order was crafted by the Democratic and Republican parties (2 of the 3 judges were at one time elected officials in Texas, and the other was active in Republican party affairs). But the parties are at best indifferent to 3rd parties and independent candidates. Party lawyers probably only look at those laws when they are trying to keep someone off the ballot.
The filing deadline for independent presidential candidates had to be changed, since it was before the new date for the primary, and independent presidential petitions can’t be signed until after the presidential primary (since there is no runoff for the presidential preference primary, there is no reason to have a delay for a runoff).
The court order has been interpreted as changing the starting date for signing independent presidential deadlines. There is certainly no reference to the starting date provision in the court order (Election Code 192.032(g)(1)). But I doubt that a court would uphold a challenge to a signature made prior to the primary, by a voter who subsequently voted in a primary.
Election Code 192.034(g)(2) does say that a signature is invalid if a signer “voted in a presidential primary election during the presidential election year.”
But Election Code 192.034(f) requires that each sheet of the petition include the words “I did not vote this year in a presidential primary election.” Further, a petition circulator is required to point that text out to the signer AND read it aloud. Each petition part is required to have an affidavit from the circulator that they witnessed each signature and did point out the restrictions and read it out loud.
A voter who believed they “did not vote this year in a presidential primary election” would be considered truthful even if the reason that they “did not” was because it was impossible to have done so.
There was not necessarily a reason to change the filing deadline for the supplemental petition for new parties. The starting date for the petition is based on the date of the precinct conventions for the party, which is set independently of the primary date (just because this was an oversight doesn’t change the fact). The Libertarian and Green parties held their precinct conventions on March 13.
A voter is restricted in participating in the nomination activities of one party. Someone who voter in a Republican primary, may not vote in a Democratic primary, participate in a Libertarian convention, nor sign an Americans Elect petition.
Someone who participates in a Green convention, may not participate in a Libertarian convention, vote in a Democratic primary, nor sign a Constitution Party petition.
Someone who signs an Americans Elect petition may not sign a Constitution Party petition, vote in a Republican primary, nor participate in a Green convention.
Though the sequence of events has changed, the rules are still consistent. So changing the deadline just gave parties an additional month to collect signatures.
The court order also changed the filing deadline for independent candidates for offices other than president. The filing deadline is set in statute based on the date of the runoff (30 days after the runoff on July 31 under the revised schedule). This might present problems counting signatures and preparing ballots. Even write-in candidates must file before then.
So the court order moved the deadline before the runoff, and explicitly said that provisions of Election Code 142.009 that were incompatible with the court order were waived. It is not compatible to delay signing until August 1, given that the deadline is June 29, nor to prevent a voter who might vote in the runoff from signing the petition.
Tail wagging the dog. The spin here in Guadalupe County is if you sign a petition you cannot vote in the primary.
There error in the preface contends Independents are filing before the 29th. Election Code states they cannot file til May 30th. The petition signer is not prohibited from signing the petition prior to the primary or voting in the primary as the petition does not enter the change of custody until or after May 30th, and thanks to the silly 3 judge panel until June 29th. The runoff rule has been rendered moot as the Office is not on the primary ballot.
Why is it we consistently have inadequate SOS’s here in Texas?
#2 If you sign a party supplemental petition (for Americans Elect, Justice, Constitution) you may not voter in a primary. The article in the Seguin newspaper is confusing this with independent candidacies.
The rule for independent candidacies works on a per-office basis. A voter may only participate in nominating one candidate. Under ordinary circumstances, petition signing begins the day after all nominations for a particular office are decided, so it can be checked whether a voter voted in an election where a candidate for that office was on the ballot (a voter is presumed to have voted for every office, since there is no way to check).
And voters are also restricted to signing one petition only (it took longer to check the Kinky Friedman and Carole of the Many Names petitions, because they had to be cross-checked against each other based on earliest signature).
The election code for filling vacancies doesn’t make total sense – or was written when primaries were later in the year, and you could have a filing deadline a month before the primary, and a month between the primary and runoff. Most of the time, if there was time enough to get the special election on the general election ballot, there was time enough to have it on the primary ballot.
But now, it is too late to get a race on the primary ballot unless it happens during the odd-year before the election (if the primary were in early March).
But if the vacancy is too late to be on the primary, the deadline is still based on the runoff which won’t be held.
So you start out with state law for vacancies that doesn’t make sense, and put on top of that a court order written by the Republican and Democratic parties who really don’t want anyone else on the ballot.
The court order did not change the starting date for the supplemental petitions, because that is based on when the precinct conventions were held – and that never changed.
The court order did not change the starting date for independent presidential candidates, but did change the ending date. Nonetheless the SOS is of the opinion that the starting date was the date of the court order – even though this messes up the checking of whether a voter had voted in a presidential primary or not.
The court order did not change the starting date for independent candidates for offices other than president, except that the restriction on not signing until after the runoff was eliminated (because it is not compatible with a filing deadline that occurs before the runoff). Nonetheless, the SOS believes that the starting signature date is the day the court order was signed.
And that is what makes the checking of independent petitions ambiguous. State law says you can’t sign before the primary. The SOS says you can (even though the court order does not explicitly address this point).
State law requires a petition to state “I know the purpose of this petition. I have not voted in the general primary election or runoff primary election of any political party that has nominated, at either election, a candidate for the office of [Bastrop County Judge (unexpired term)] for which [Inga Independent] is a candidate. Signing the petition of more than one candidate for the same office in the same election is prohibited.”
The circulator is required to point this text out, and read it aloud. (I chose Bastrop, simply because the resignation there occurred soon enough for the county judge race to be on the primary ballot).
So a signer is indicating that (1) he knows that the purpose of the petition is to qualify Inga Independent for as a candidate for County Judge; (2) that the signer favors Inga being on the ballot; (3) that he has not signed another petition for that office; and (4) that he has not voted at the primary of the runoff of a party that has made a nomination for that office.
Just because it is impossible for a voter to have voted before the primary, and might do so in the future, does not mean that he has.
The voter has a right not to have his signature tossed, simply due do administrative or judicial foul-up.
#2 Does the redistricting court order apply to the Guadalupe County Judge (unexpired term)?
“d. The last day on which a vacancy for an unexpired term in an office of the state or county government may occur and appear on the primary ballot, as described in Texas Election Code ยง 202.004(a), is March 5, 2012.”
Since the resignation was official on April 3, 2012 when the commissioners court accepted the resignation. then the office will not appear on the primary ballot. It also occurred after 4 days before the county convention date for minor parties March 13, 2012.
Since the court order is for offices where partisan nominations are made at the primary, and no nomination for Guadalupe County Judge will be made at the primary, does any of the rest of the court order apply? Why?
If not, then independent signature collection begins the day after the belated primary (142.009). Chapter 142 applies to all state and county offices on the general election ballot. No declaration of candidacy is required (142.002(c)).
The petition is due 30 days after the belated runoff (142.006) or August 30. One could make an argument that (202.007) requires a filing deadline of August 28, 70 days before the general election.
No screenout of signers exists, because no voters could have voted for the office at a primary (142.008). Voters are restricted to signing one petition.
A voter in a primary is not prohibited from being an independent candidate if his party did not nominate a candidate for that office (162.015). Since there is no primary, there are no limitations on an affiliated voter becoming an independent candidate for the office.
A precinct or county chair may become an independent candidate. 161.005 prevents someone who holds (or is a candidate) for federal, state, or county office from serving as (or being a candidate for) precinct or county chair. When someone becomes an independent candidate, their party office is vacated.
Election Code 202.006(b) says “the nominating procedure for an unexpired term under this section is the same as that provided by Subchapter B, Chapter 145, for filling a vacancy in a party’s nomination, to the extent that it can be made applicable.”
Elections Code 145.036(e) says: “A vacancy in a nomination for a district, county, or precinct office that was made by primary election may not be filled before the beginning of the term of office of the county executive committee members elected in the year in which the vacancy occurs.”
Elections code 171.022(c): “Each committee member serves for a term of two years beginning the 20th day after runoff primary election day.”
So the term of precinct and county chairs begins on August 20. If there is a vacancy in nomination after the primary, then state law requires the executive committee chosen at the primary/runoff to choose a replacement.
So if the vacancy for an unexpired term is so late that it is impossible for the voters to choose the candidate, shouldn’t the candidate be chosen by the party officials chosen by the voters at the primary?
I think that is within the “extent that it can be made applicable”.
So no party nominations can be made by county executive committee before August 20.
How to fix? Use the system that is used for legislative vacancies.
Hold a special election at the next uniform election date that is at least 90 days away.
Candidates qualify the same as primary candidates (fee or petition). Since they are partisan elections, let the parties endorse as many candidates as they wish to. A candidate may accept the endorsement of only one party.
If no candidate receives a majority, hold a runoff 4 weeks later.
If the special election would be last November of the term; then no special election is held, but the candidate who is elected for the full term takes office as soon as the canvass is completed, and they qualify.
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Jim Riley,
I am going to make the argument the many letters of intent for “Interim County Judge” are an impediment to Independent candidacy. The commissioner’s court was hand in glove with their County Chair and the effective resignation date was contrived and sanctioned by the SOS.
Sec. 142.008. STATEMENT ON PETITION. The following statement must appear at the top of each page of a candidate’s petition: “I know the purpose of this petition. I have not voted in the general primary election or runoff primary election of any political party that has nominated, at either election, a candidate for the office of (insert office title) for which (insert candidate’s name) is a candidate.”
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Further I am going to contend that in this “affadavit” is not an impediment for signing subsequent petitions for the Independent Candidacy to fill a vacancy. To do so it must include this statement. “I have not previously signed any petition to have a candidate placed on the ballot for this office.” and it does not.
edit-#8 contrived and then sanctioned
#8 The San Antonio Court set the last date for a resignation to occur, and the election to appear on the ballot as March 5, 2012 (overriding the 62 days in Elections Code 202.004(a)). Charles Ruppert is simply wrong about the timing of the resignation.
Wiggins was arrested on February 6. It was unknown at that time when the primary would be. He didn’t decide to resign until March 20 (or at least he didn’t announce it until then). Even if he had resigned immediately, it would have been too late to hold a primary. If the 62-day period were in effect, then it is true that not immediately accepting the resignation on March 26 when it was officially tendered by Wiggins, would have been significant.
But it might not have been possible for the commissioners court to immediately accept the resignation without public notice; and it possibly might have required the cooperation of the County Judge, who of course heads the commissioners court.
I have no knowledge of how and when Wiggins decided to resign. It sounds like it was his inclination initially to continue on as County Judge. It probably would have been messy to force him out.
Maybe he picked the timing, thinking the 62-day rule was in effect.
In any event, 202.004(a) should have been changed last session when all of the other filing deadlines were adjusted. If there had been a primary, they might have had to reprint the ballots.
#9 142.004 says that petitions for state and county office must comply with 141.062, which relates to petitions for all offices.
141.062(a)(3) says that a petition must comply with other requirements for validity of petitions. That of course includes 141.066 (a voter may only sign one petition and the petition must include the statement to that effect) and 141.064 (statements on ballot must be pointed out and read to voter).
See:
http://www.sos.state.tx.us/elections/forms/a2-7.pdf
Since the court order only applies to offices where nominations are made at the primary, and because of the timing of Wiggins’ resignation, for the office of county judge (unexpired) the court order might not apply, other than the timing of the runoff.
So arguably, the petition deadline is 30 days after the runoff (July 31 + 30 = August 30). And since the office is not on the primary ballot, it is possible that the starting date for petition signing is not the primary.
#9 Vacancies in county office should be filled on the next uniform election date that is sufficiently far from time of vacancy to permit an orderly election (say 60 days). Then there would really be no reason to bother with primaries, since such a provision would only apply to vacancies that occur in a narrow window (September to December of the first year of a 4-year term). There is no reason to have special cases for 8% of elections.
Do it like special elections for legislators, where candidates may run under a partisan label, but there are no primaries, but there is the possibility of a runoff. All candidates would be equal, since they would either gather petition or pay the filing fee.
When Ed Kuempel died, Guadalupe County and the other counties in his district put together an election in a very short time. Of course, it is more critical to have a replacement legislator in time for the legislative session; but for a county office there is no reason to have an interim official longer than a few months to the next election.
quote:
but for a county office there is no reason to have an interim official longer than a few months to the next election.
especially when there is an agenda to perserve power.
I reference “Bouazizi” from time to time. A slap meant as a degridation “I am the POWER” set fire to 1/3 of a continent.
I took 3 judges to make an outlaw election in Texas.