Screwy Texas Election Code Impacts Many Ron Paul Supporters

Texas has some complicated rules with respect to primary voting. This is of particular importance in the March 4 primary for Libertarian Party and Constitution Party members who might also wish to cast a vote for Ron Paul.

Here’s the word from the Texas Secretary of State:

If you are a registered voter in the state of Texas, you will simply choose your party and vote in that party’s primary. To explain, we do not register by party in Texas. One becomes “affiliated” with a party by voting in a party’s primary and the affiliation lasts for that primary year. As an example, if a voter voted in the March 2006 primary or April 2006 runoff primary, the voter affiliated with that party for the rest of that year, but on December 31, 2006 the affiliation expired. The affiliation means that the person may not vote in another party’s primary or participate in another party’s convention or sign an independent candidate’s petition for place on the ballot if the independent candidate’s position appears on the primary ballot. Note that in the general election in November, a voter may vote for whomever he/she wishes, regardless of how or whether he/she voted in the primary or runoff primary election, since all candidates are on the same ballot.

Here’s how a recent article describes the mess:

Some worry that voting in a particular party’s primary could tag them as a permanent member of that party. That is not the case—although voting in a primary will cause a voter to become “affiliated” with that party for the remainder of the year—but only for purposes of the primary. It does not restrict one’s choices in November and it certainly does not affect what party’s primary one can vote in in the future.

Of course, you can’t vote in both parties’ primaries—and you can’t sign an independent’s petition to get on the ballot if you vote in one of the major party’s primaries.

Primary voters also cannot appear on the ballot for another political party. This issue could be important for Libertarians, many of whom would like to vote for Freeport GOP Congressman Ron Paul, who has a strong Libertarian tilt. The Libertarians have candidates for many of the offices on the ballot, and they are the country’s most consistent third party, but if these candidates submit to their desire and go and vote for Ron Paul in the Mar. 4 Republican primary, they cannot appear on the ballot.

Travis County Libertarian Party leader Wes Benedict has warned his party’s candidates about this possibility—saying that an en masse vote by Texas Libertarians for Paul might help the quixotic obstetrician in his battle to reform the GOP, but it could set back the Texas Libertarian Party for years.

It is complicated, but it’s also easy if you remember three rules: 1) You can only vote in one party’s primary; 2) A primary vote doesn’t preclude whom you can vote for in November; & 3) A primary affiliation only lasts until the end of the year, when voters are free to turn over a new leaf.

I’d love to see some of these screwy laws challenged in court. I can see all sorts of potential grounds for such cases. Is anyone familiar with case law respecting this sort of ballot access and freedom of association impediment? Additionally, I’m not an expert on Texas election code (I have enough trouble keeping up with my own state and federal laws). I’m sure I’ve missed some important elements to the somewhat complicated issues in this posting, so feel free to leave a comment and let me know how this issue can be better clarified.

27 Responses to “Screwy Texas Election Code Impacts Many Ron Paul Supporters”

  1. RockHoward Says:

    Stephen,

    You got the story about right, but there are a few bits more…

    If you vote in the Rep. primary, then you can’t participate in the LP conventions (county, state, etc.) either. You also can’t become a precinct chair, serve on a county or state executive committee or do anything else in an official capacity with the party.

    I have suggested to the Texas LP that this year might be a good opportunity to challenge this aspect of the rules as they definitely restrict constitutional protected freedom of association. We shall see…

    Another detail, I am now the Chair of the Travis County Libertarian Party as Wes is now running for County Commissioner. (He had to quit the Chair position in order to run. More darn rules!) Wes, however, remains Executive Director of the Texas LP which is allowed.

    Interestingly the “sore loser laws” in Texas that prevent a losing primary candidate from then running with a different party in the same election cycle, may not apply for Presidential candidates as technically it is the delegates who are running for election and the alternate party would have a completely different slate of delegates and they would not be subject to the sore loser provisions.

  2. twright Says:

    “as they definitely restrict constitutional protected freedom of association.”

    Freedom of association is a 2-way street. Meaning the association should have the right to determine who is and isn’t a member (as an individual has a right to seek membership in an association).

    So the rules seem to me a reasonable protection for the association (the parties). You shouldn’t be able to decide who represents the Republican party if you’re not a Republican. And if you are a Republican, you shouldn’t be able to claim that you represent the Libertarian party.

    As difficult as it may be, sometimes we have to make tough choices.

    Frankly, I think primaries are an aweful waste of taxpayer money. All party nominations should be done at party expense in caucus. Ballot access should, of course, be wide open and equally defined for all candidates.

  3. Robert Milnes Says:

    NEVER AGAIN vote republican. There. Problem solved.

  4. Eric Dondero Says:

    Can you imagine scores of Texas Ron Paul supporters voting for him in the GOP primary, then Paul goes Independent, and his supporters soon learn that they can’t sign his petition to put him on the ballot.

    This is going to be interesting.

  5. Richard Winger Says:

    The “Primary screenout” in Texas was upheld by the US Supreme Court in 1974 in American Party of Texas v White. The vote was 8-1. Only Justice William O. Douglas felt it was unconstitutional.

  6. Christopher Jagge Says:

    The Texas LP has been working hard to end “Primary screenout” for several legislative cycles now.

  7. Gary Odom Says:

    “I’d love to see some of these screwy laws challenged in court. I can see all sorts of potential grounds for such cases.”

    AMEN!

    “NEVER AGAIN vote republican.”

    A VERY GOOD RULE OF THUMB!

    The “Primary screenout” in Texas was upheld by the US Supreme Court in 1974 in American Party of Texas v White. The vote was 8-1. Only Justice William O. Douglas felt it was unconstitutional.

    RICHARD, THE NEXT TIME I WANT A REALITY CHECK, I’LL ASK FOR IT!!
    :-) SERIOUSLY, REPUBLICAN APPOINTED JUDGES ARE JUST ABOUT AS ENLIGHTEND AS THE TALIBAN WHEN IT COMES TO ELECTIONS AND BALLOT ACCESS LAWS.

  8. Chris Says:

    I’m assuming the Texas LP has a ballot line for President in 08. I also thought they already had a state-wide line. No petitioning needed. They are generally one of the most reliable states in this respect.

    So I’m not really seeing how this is a huge problem. Are there THAT many LP candidates that it would potentially impact the primary. At most I would guess that the Texas LP could have 100 candidates. I’m not seeing how those 100 votes would be more than half a percentage point.

  9. Stephen Gordon Says:

    Chris,

    Keep in mind that LP Ron Paul voters couldn’t even participate in their state convention, either.

  10. David Says:

    i can see how the prohibitions against participating in another parties convention, running for office as a member of another party or an independent, or being a party officer of another party could pass constitutional muster if you affiliate with a party by voting in their primary. What I can not understand is how not being able to sign a petition to get another party or candidate on the ballot can be anything else but a violation of free speach and other constitutional rights of both the voter, the candidate and anyone else that may wish to vote for them

  11. twright Says:

    “What I can not understand is how not being able to sign a petition to get another party or candidate on the ballot can be anything else but a violation of free speach and other constitutional rights of both the voter, the candidate and anyone else that may wish to vote for them.”

    In Washington State, signature gathering activities are technically party “conventions.” You can’t go door to door, you must pre-announce the date and time of the “convention” and you can’t sign the petition of more than one person running for the same office.

    I admit, these ballot access laws are burdensome. But frankly, any candidate or party that can’t organize enough voters to get them on the ballot is wasting their time - electorally speaking.

    3rd parties, like the LP, are constantly complaining about the hardships they face while simultaneously refusing to do the hard but necessary work of political organizing. While we certainly should be trying to overturn draconian ballot access laws, accomplishing even this will be impossible without doing the legwork.

  12. Red Phillips Says:

    twright, parties, which are private entities, have a right to restrict their membership or candidates however they want. But the state should not be enforcing the parties’ private rules by force of law. I’m assuming that someone who voted in the GOP primary and then attended the LP convention could be charged with vote fraud or something. That is manifestly wrong. If the GOP wants to sue them, then that might be another thing.

  13. Sean Scallon Says:

    If Ron is going to go the non-major party route, challenging such dictatorial laws in court with his candidacy is a major reason to do so. Party can do what they want inside the party. The state has no business enforcing such party rules for the entire state.

    The way our election rules favor the major parties you’d think we were in the Soviet Union, which was a dictatorship of a single political party. Here in the U.S. we have two such parties.

  14. Chris Says:

    Keep in mind that LP Ron Paul voters couldn’t even participate in their state convention, either.

    I’d like to see the state try and stop them. How do you enforce such a rule? It’s essentially a waiting period on changing political affiliations. I’d imagine someone would have a pretty good constitutional case if the state bothered to enforce the law at all.

  15. Chris Says:

    Besides, if we consider TX LP candidates and those that participate in TX LP conventions (even assuming all of them would vote for Paul), then we’re still talking about (probably much) less than 0.5% of the primary vote.

  16. RockHoward Says:

    Some followup to this discussion:

    The Texas LP has about 210 candidates filed for partisan races. Throw in the county and state executive commitee members who want to retain their positions and we have about 300 potential Paul voters who cannot do so in order to keep the Libertarian Party option fully intact. Not a big deal either way really.

    Meanwhile the Texas LP Bylaws currently reinforce the state affiliation rules and so that would have to change first before a legal challenge would become possible. So that means such a challenge could not occur before 2010 at the earliest. It also means that Ron Paul voters will be excluded from the Texas State and County LP conventions in 2008 as doing otherwise would potentially jeopardize the status of LP candidates on the ballot and this, in turn, would jeopardize the ballot status of the Texas LP.

    Another tidbit under review is loosening up the rules on endorsing non-Libertarian candidates by the Texas LP (or county affiliate LPs for local races.) Currently our rules make that verbotten, but I am thinking about proposing that it should be allowed as long as there is no Libertarian in the race and at least 2/3 of the convention delegates vote for such an endorsement.

  17. Fred C. Says:

    How many people usually show up at those state & county conventions?

  18. Charles Foster Says:

    Two Cents Worth -
    Yes, Texas’ Election Code is a little odd. In terms of tradition, if not actual statutory construction, a lot of it is still firmly rooted in some 19th-Century practices. It helps for the sake of perspective to examine it this way: All voters are just voters - independents, if you will - when the voter registration cards are mailed out prior to the start of an election cycle. they stay that way until they vote in a major-party primary OR attend a minor-party’s conventions (in a progressive chain: Begins at Precinct - then to County to District to State) Typically, voters are sworn in at the Precinct level convention if they affiliate with a so-called minor party. If things are done by the book, folks who vote in 2MP primaries get their voter card stamped at the sign-in stage and show that they participated in either the Dem or GOP event. If you go to a minor-party’s convention, you should get your voting card stamped there with that party’s name, and statute actually calls for a swearing-in, or “oath of affiliation” for the minors.

    I suppose that was all adequate back when the state’s population was half of what it is now and not nearly as mobile. The setup is antique and needs to go.

    But what’s far more problematic is that the non-2MP parties are also all governed by a different set of laws - and they’re locked into the “Nominate By Convention” model by them. They can’t have primaries. It’s as much a separate-but-equal setup as Jim Crow. By law, the minors can’t even have their precinct conventions until the primary voting polling places are closed when voting hours are concluded. These dual legal standards are another whole book. But please…If you think you want to go to court to change any of this, do some homework. The total case-law history of challenges to Texas Code provisions just since the ‘65 Voting Rights Act is MASSIVE, and as much as TX has lost, it also wins a bunch, too. Beware, and be prepared to not make the same mistake ONCE.

    Now as far as the prohibition of cross-participation is concerned, you may not like it much. But it is against the law - a misdemeanor offense; again with very old statutory roots. As a practical matter, enforcement isn’t necessary usually. If your voting card is stamped with a competing party’s name when you try to enter another party’s event, you’re probably not going to get in. Likelihood of enforcement ( being charged and going to court ) can be guessed by this sort of rule-of-thumb: Was the violator just jaywalking, or was he trying to roller-blade down the center stripe of a freeway? What was the level of actual harm?

    But, minor-party activists would also be wise to do some self-policing where this is concerned, just in case they don’t take it seriously. A convention event that has a noticeably high participation by folks who voted in primaries runs the risk of having the work-product (nominations) contested by legal challenge from outside the party by other party’s operatives. That hasn’t happened in awhile in Texas, but it darn sure CAN happen. Watch yourself… And by the way, when it comes right down to brass tacks, party rules are expected to have the same force and effect as state law, just as they are expected to conform to them. If you don’t believe me, call the SOS office in Austin.

    Texas needs register-by-party very badly. It would revolutionize 3rd-Party activity here by ending the need for petitioning. A good bill was introduced last session in the TX lege to accomplish the changeover (HB3118). Author was even the Chair of the House Elections Committee, Leo Berman®. But the Association of Republican County Chairmen went in by back channel and killed it - it was not reported out for vote. I can only guess the GOPs still like the idea of being able to have small armies of GOP loyalists skip their primaries so they can sabotage Democrat primaries and run-offs (i.e. vote for the more beatable candidate), which is perfectly legal under the current laws. HB3118 was written to stop that practice (not to help 3rd Parties, btw). Crossover sabotage has happened a lot in recent times, and is one reason why John Cornyn was easily elected to the U.S. Senate on his first try. His Dem opponent in the General Election was a complete nincompoop. The man that lost to the nincompoop in an earlier Dem runoff was Victor Morales, an old friend of mine. Victor could have stood toe-to-toe with Cornyn and maybe beaten him, but the GOPs fixed that. It’s a fact.

    Hey…If you live in Texas, lean on your state rep to bring back HB3118. It would help immensely to see it passed, if for no other reason than this: In theory, it may prevent at some future time our having even worse slates of candidates in general elections than we have now, if not bozos in ALL the nomination slots.

  19. James Madison Says:

    can I write-in Tim Duncan in the primaries, then vote for Ron Paul in the general election?

  20. Earl Divoky Says:

    Yeah, but this Texas system has some advantages as well. In some states alternative candidates get tripped up by their major party registration. Then there’s the problem of actually being able to REGISTER in a minor party in other states. Also, at the beginning of the election cycle I get to decide whether I want to join one of the major parties that year or sign a petition for an alternative candidate.

    As for Primaries for minor parties, be careful what you ask for! Here in CD 22 the question arose of the Republicans supporting LP candidate Bob Smither when their own candidate was knocked off the ballot. There was a whispering campaign against him being a stalking horse for Democrat Nick Lampson. This was knocked out of the ballpark by people who knew the rigorous nominating process at the State LP Convention. Smither had been chosen over some competitors as the best candidate. With a Primary however it’s just a name recognition contest. Perennial Democratic candidate Gene Kelly is a case in point.

  21. Charles Foster Says:

    Earl;

    Good perspective. An advantage of there being more than one kind of political structure in Texas couldn’t have been better demonstrated than the evnts you described. Options were excercised.

    As far as primaries are concerned, don’t get me wrong; I can’t think of a bigger nightmare than the Texas Lege & SOS imposing primary-eligibility on alternative parties suddenly and without warning. I don’t like primaries anyway. I certainly don’t want to see 3rd Parties in TX instantly have to put up with all the logistical headaches and expense of primaries as a cost of admission to the Big Dance, once they’re on-ballot. It’s unthinkable.

    Like I said, I don’t care for them (primaries). They do nothing but encourage voters to stay in a coma, basically - aroused participation-wise only enough to cast a ballot once in awhile and blissfully snoozing the rest of the time. Our electoral processes need for more people to be more directly involved than all that if our country is to ever regain its civic health. The old-fashioned Nominate-By-Convention model is nothing but hands-on, and I would (if I can be allowed to dream for a sec.) like to see the 2MP have to revert to the convention M.O. if one model or the other (primary vs. convention) had to be ditched. Of course, if that happened the voting public with 2MP ties would be suddenly thrust into the midst of the 2MP’s operational structures and would probably clean them up, relatively speaking. Uncomfortable questions would be asked. Front End Fixing (of candidacies) would be exposed and stopped. Elite heads would roll. The howls of agony and protest put forth by the Texas 2MP’s Establishment would probably be heard in the next nearest galaxy. They’d fight to the last breath to stop and reverse all that, too. It would be ugly, sho-nuff.

    I agree that it’s good to have options & per your example above. But in politics, like many other serious matters, trade-offs sometimes have to be made. If commitment to a party or strictly independent status by TX voters at the outset of an election cycle also enables non-2MP Texans to climb out of second class civic status, it’s worth it to be locked in. Establishing register-by-party here would be a step in towards that.

    I’d only add that restrictions that limit indie petition-signers to only one petition, or forbid petition signing by voters who are party-committed are just plain wrong. Both strictures need to be abolished no matter what else happens.

  22. Andy Says:

    “Eric Dondero Says:

    January 31st, 2008 at 6:33 am
    Can you imagine scores of Texas Ron Paul supporters voting for him in the GOP primary, then Paul goes Independent, and his supporters soon learn that they can’t sign his petition to put him on the ballot.

    This is going to be interesting.”

    This is one good reason for Ron Paul to run as a Libertarian Party candidate again. The LP already has ballot status is Texas so Ron could be on the ballot there as a Libertarian and not have to get any signatures.

  23. Charles Foster Says:

    For James Madison -
    Who is Tim Duncan?

    I haven’t voted in a major-party primary in Texas in over twenty years. There may be a write-in provision at that level, or maybe not. Can’t say.

    The best/shortest answer is that to remind you that in the General Election you definitely can write in whomever you please. There’s a write-in slot at the Presidential section of the ballot. It has always been there. Dr. Paul might be a perfect fit there this time for many of you.

    In the last two Presidential Generals, I have personally skipped the Presidential lines and gone down-ballot to do my voting.

  24. Brad Says:

    Based on Texas election law does Paul’s present “affiliation” with the Republican Party prohibit him from potentially being the Libertarian nominee for President in Texas? Or would he simply need to not vote for himself in the GOP Texas primary AND retire from his congressional seat?

  25. Brad Says:

    Clarification on Charle’s comment: “The best/shortest answer is that to remind you that in the General Election you definitely can write in whomever you please. There’s a write-in slot at the Presidential section of the ballot. It has always been there.”

    There is not always a write-in line on a ballot. A person/candidate would have already had to have registered with the Texas Sec of State to be a write-in candidate for a particular position/office sought. And then depending on the particular county’s election voting devices will a write-in ballot line appear. Ie in Harris County the eSlate electronic device will only provide a write-in ballot line if there is a registered write-in candidate for that position. Finally while it is true that you can write-in whoever you want on a write-in ballot line (if one exists for that position), it won’t be counted by any election official unless the person you write-in matches the write-in candidate that had previously registered as a write-in candidate with the Sec of State. And then your spelling of the candidate must be be good enough for election official to discern.

  26. Albert A. Says:

    For Brad & Chris:

    The Screenout System would prevent Dr. Paul from voting for himself (for any office) in the Texas Primary, if he was intending to switch parties when he suspends his bid for Presidential consideration. Furthermore any person who already voted in a Primary for Dr. Paul would be restricted from any participation in the minor party conventions and therefore could not nominate him as their prospected candidate. The problem with Dr. Paul switching parties mid stream is that he would likely the National Election, and risk losing support for his congressional seat he currently holds as a Republican (most Republicans supporting him wont vote Libertarian). Switching parties prior to the LP CountyConventions is almost not a probability, and I don’t even think it can be done. I believe he would have to run as an Indepentant, since all parties were reguire to submit list of candidates for office to the Sec. of State in early Jan ‘08.

    So the Safe Assumption is, he will not abandon his base that got him elected to Congress (even if it were possible). In the General Election any voter can vote his concience, regardless of his previous affiliation, and are not required to vote a ‘straight party’ ticket.

    The BIG problem, for the LPT, is with LP voters voting for Ron Paul in the General Election for President, is that the party loses percential points (for future ballot box consideration) in National Elections and will have a very negative effect for the LP, if Our Nominated Candidate can’t get the reasonabley expected votes.

    The LP should never expect the Rep of Dem vote to get there candidate over the hump in a close race. To believe they would vote Libertarian is ‘dreaming’. So if Growing the Party is Our Intention, the Libertarians have to support Libertarian Candidates to the fullest possible extent, if nominated by the LP Conventions.

    Thats my view.

    & the Tim Duncan Question… Hummm isn’t he the Best Forward in the NBA, out of San Antonio? Or is he the Most Dominate Player in the NBA? I sometimes get them confused. Maybe both? LOL humor

    Albert

  27. Albert A. Says:

    Charles Foster,

    A Correction in your preception of Tx. HB 3118. HB 3118 In its initial form would have made party affirmation by voter registration possible but sadly it also proposes to use that affiliation to restrict a citizens ability to sign a petition for ballot access to someone for another party or independent. This is called ‘closed primaries in most states’. Once affiliated by voter registeration, you can not participate in any primary if your Independant or small party affiliated. This Bill would not effect Primary Screenout in any way. The far left and the far right love this bill because they assume it will enhance their power in party primary votes. Today, whatever your party preference you can show up at whichever polling place you choose and vote. The justification is that Democrats shouldn’t be crossing over to select GOP candidates and vice versa and independents should either get off the fence or get cut out. Most Texans would probably outraged at this imposition on their freedom of choice. Independants would not be able to participate in Primaries or Conventions to select any candidate for office.

    But Texas HB2280, still pending in Elections Committee review, is the Bill that would address Primary Screenout in Texas Election Codes. However, HB2280’s present form does not cover primary screen-out for independents. This Bill is the one that actually reduces the red-tape & the many steps to remain a small party in Texas and would keep a small party accessable @ the ballot box. So if you want to really effect changing the Screenout Support HB2280. It is jointly authored by The Green, Libertarian, and Constitution Parties & Dem. Representative Mark Strama.

    see: http://www.txgreens.org/drupal/node/135

    Albert

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