Texas Bill for Closed Primaries

Texas Representative John Davis (R-Clear Lake) has introduced HB 1821, to provide for registration by party on the voter registration form. Then, no one could participate in the primary of any party unless that voter had been registered in that party for at least 30 days before the primary. The same provision would apply to participation in conventions, for parties (like the Libertarian Party) that nominate by convention.

The bill also says that no one can sign for an independent candidate, or for a new party, if that person is a registered member of a political party.

The drafters of this bill seem unaware of many legal problems in this bill, as drafted. First, the provision that members of qualified parties may not sign for an independent candidate would probably be held unconstitutional. An identical law was held unconstitutional in Arizona in federal court in 1999. The case was Campbell v Hull. Whereas the US Supreme Court has upheld laws that prohibit someone from both voting in the primary and signing for an independent, that is not the same issue. Someone who is merely registered in a party, but who didn’t vote in the primary, is not “voting twice” even under the logic of the US Supreme Court decision that upheld the primary screenout.

Second, the bill makes no provision for a party to decide for itself that it may wish to let independents vote in its primary. The US Supreme Court said in 1986 in Tashjian v Republican Party of Connecticut that any party may decide for itself whether to let independents vote in its primary.

Finally, the bill is ambiguous as to whether someone would be allowed to register into an unqualified party. Probably the bill’s author does not intend to permit this. However, courts in Colorado, Oklahoma, New York, New Jersey, and Iowa, have said that voters must be permitted to register into certain unqualified parties (those that have managed to qualify for the ballot, or qualify their nominees for the ballot, in the past).


Comments

Texas Bill for Closed Primaries — No Comments

  1. Does a citizen, registered in a political party, not have the right to quit that party at any time, petition for an independent, and then at some future, even relatively short, time rejoin the prior party?? Can we not change our minds about who to support, who to vote for at ANY time? Isn’t that a hallmark of freedom?

  2. Basically it is trying to impose pre-primary affiliation. Texas has party affiliation – it doesn’t have persistent party affiliation. Party affiliation begins at the time you engage in a formal party activity (run for office, sign a petition, vote in the primary general or primary runoff, or participate in a convention). That affiliation lasts through the end of the election year.

    Some of the flavor of existing law is reflected in the effect of when a registration change takes effect. If the filing is made after 30 days before the primary, then the change does not take effect until January 1st of the following year – that is, once your affiliation is established in an election year, it can’t be changed.

    The rationale is likely to prevent voters choosing which primary to vote in based on a particular race, or
    voters crossing over between the primary and runoff. While currently illegal, primaries are conducted by the political parties, and they may be careless about recording participation. It is possible that it is related to next year’s Republican gubernatorial primary.

    Screenouts are handled by the bill in an inconsistent way. Current Texas law provides that an independent petition may not be signed by a primary voter whose party nominated a candidate for the office that the independent candidate is seeking. So if you voted in a primary at which your party nominated a candidate for governor, you can’t sign an independent candidate’s petition for governor. But if your party didn’t nominate anyone for state representative, you could sign an independent candidate nominating petition for that office. This provision was explicitly upheld in American Party of Texas v. White

    In revising the law, the bill simply crossed out that more nuanced restriction, and substituted party registration. It could be fixed by simply retaining the existing language.

    On the other hand, under current law, non-affiliated voters may sign a petition for a candidate seeking a party nomination. Signing the petition makes them ineligible to vote in another party’s primary. The proposed language preserves that flavor, by simply making the voter ineligible to affiliate with another party.

    It also preserves the right of a party by rule to permit non-affiliated voters to sign petitions proposing primary ballot “initiatives”.

    Under current Texas law, Tashjian is meaningless. All voters are non-affiliated until they vote in the primary, at which time they become affiliates of the party. They will become independent again at the end of the election year.

    I suspect that the author is indifferent to unqualified parties or their status. The bill actually sets up a Catch 22 in this regard. New parties nominate by convention, just like other minor parties (currently only the Libertarian Party). They become qualified by attracting sufficient voters to their conventions (supplemented by petitions collected after the precinct convention).

    Candidates who seek nomination by convention must declare their candidacy at the same time as candidates who would be nominated by primary, or as independent candidates. Primaries, conventions, and petitions for independent candidates are treated as just different forms of nomination, with declarations required by early January.

    So if you wanted to be nominated by the Putative Party, you would need to declare for that office and be registered with the party by January.

    To participate in the precinct convention of the Putative Party, you would have to be registered with the Putative party 30 days before the primary (precinct conventions are held at the same time).

    To sign the supplementary petition, one would have be a registered member of the Putative Party, or an independent. But since party registration must be established earlier in the year, the Putative registrants would have had to register at the time. Meanwhile, even if the independent wished to formally register with the Putative Party, his registration change would not take effect until after the general election.

    And the only way in which a party registration can be changed is if the voter changes it, or his voter registration is cancelled.

  3. “The bill also says that no one can sign for an independent candidate, or for a new party, if that person is a registered member of a political party.”

    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.

  4. #4. I reversed it. It is the “general primary election” and “runoff primary election”. It is the primary election at which candidates are nominated for the 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”.

  5. I’ve never seen “general” added to “primary election.” I agree with the secretary of state, except that the second round is the runoff (or second) primary. “Second primary” is accepted, despite the fact that it’s an oxymoron, since “primary” means “first.”

    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.

  6. #5 The petition period for independent candidates is just after the primary or (primary runoff).

    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).

  7. #7

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

    (b) The runoff primary election date is the second Tuesday in April following the general primary election.

    (c) The presidential primary election date is the first Tuesday in March in each presidential election year.

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

    Now you have.

  8. An interesting provision of the proposed bill is that it would require voters to declare their party affiliation this fall.

    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.

  9. Another interesting bill is HB 1892, which would require all political parties to nominate by primary.

    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.

  10. Thanks to Jim Riley for informing us about HB 1892.

    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.

  11. In Texas, declaring ones candidacy is an act of affiliation. It would seem bizarre that someone who says they want to be the Republican nominee for governor would be permitted to vote in the Democratic primary for governor and other offices; yet a more casual participant such as a mere voter can’t pick and choose as in a blanket primary.

    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.

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