Texas State Senator Dan Patrick (R-Houston) has introduced SB 452, to move Texas primaries from March to the first Tuesday in February. Although Senator Patrick says his goal is to give Texas an earlier presidential primary, his bill moves the primary for all offices, in all election years, to February.
The bill, if enacted, would move the petition deadline for non-presidential independent candidates, and newly-qualifying parties, from May to April. This is virtually certain to be held unconstitutional. Also the bill would require newly-qualifying parties to notify the state in November of the year before the election if they wish to petition. Thanks to Linda Curtis for this news.
What is the EVIL mania by the robot party hacks for super-early primaries ???
Duh – to protect the EVIL robot party hack incumbents ???
P.R. and nonpartisan App.V.
Dan Patrick is a self-serving jackass.
All parties nominate by convention or primary. The US Supreme Court in ‘American Party of Texas vs. White’ said that it was too plain for argument that Texas may insist that intraparty competition be settled before the general election by primary election or by party convention.
Therefore it is reasonable that parties notify the State that they are going to nominate by convention before the conventions are held. All parties that nominate by convention must notify the SOS that they intend to nominate by convention in a particular election year (it applies to the Libertarian and Green as well). Since all parties must also file their rules, and these arguably require preclearance under Section 5 of the VRA, this notification is not unreasonable.
It appears that some of the changes were intended to clerical in nature and were missed when the filing deadline was moved to accommodate the MOVE Act (sending of overseas ballots 45 days before elections) in 2011 or when the primary was moved a week earlier in 2003.
You are in error with regard to the petition deadline for non-presidential independent candidates. The deadline is 30 days after the primary runoff. SB 452 sets the primary runoff as the 4th Tuesday in April, so the deadline would be in 2012. While this is earlier than in 2012, it is two weeks later than in 2010, and because of the extended period between the primary and primary runoff, the petitioning period is longer than it was previously. This would quite unlikely be found unconstitutional, barring the Supreme Court coming to its senses and declaring any nominating activities more than 6 months before the general election to be unconstitutional.
The current Texas election calendar is based on that set in 1959 so LBJ could run for president and senator at the same time (he would have the senate nomination locked up before the national convention). Before 1960, the primary was in late July, with the runoff in late August.
The 1960 schedule set the primary to the 1st Saturday in May, with the primary runoff the first Saturday in June. The state conventions were also in June. That was the schedule at the time of ‘American Party of Texas v White’ was decided in 1974.
So, for a convention nominating party, their precinct conventions would be in May, followed quickly by county, district, and the state conventions. The supplemental petition was not due until mid-July. So while the deadline was technically based on the primary, it was in a practical sense tied more to having candidates qualified in time to have them appear on the ballot.
‘American Party of Texas v White’ said that minor party candidates could not be omitted from the absentee ballots for the general election ballot. I suspect that this practice might have dated from when the primary was in late July, and the party qualification deadline might have been in September or October, which would give time for candidates to be on the general election ballot, but not on absentee ballots distributed before November. Advances in technology make it impossible to conduct an election in the same amount of time as when primitive paper and pencil were used.
Candidates for party nomination file with party officials. For the primary-nominating parties this information is forwarded to the Secretary of State who retains it in a custodial role. Prior to the primary, the SOS web site includes links to the party websites which have the actual candidate filings.
The primary-nominating parties also forward the information to the county election officials, but that is so that they may prepare the ballot for early voting, which is conducted by the county election officials. The mid-November filing deadline is so that ballots may be prepared and mailed overseas 45 days before an early February primary. If it were not for early voting, the county elections officials would not need to know who the candidates were (The election equipment used on primary election day is usually rented from the county, but any preparation of the equipment is done in a capacity of vendor, rather than as a state action).
There is no need for a November filing deadline for convention-nominating parties. If someone files for a statewide nomination, the only legal requirement is that the state chair to deliver that notification to the state convention which is held in June, 7 months later. There is simply no reason for this long lead time. In 2012, the Libertarian Party nominated candidates for more congressional races than the Democratic Party, even though the district boundaries were not set until a few weeks before the county and district conventions were held in March.
State law permits an extension of the filing deadline for primaries in certain instances, such as the death of a candidate just before or after the filing deadline (roughly 5 days), withdrawal of an incumbent or the only candidate after the deadline. The extension is quite short, because the ballots still must be printed.
There is an “equivalent” provision for convention-nominating parties. The party may by rule set an extended deadline in case a candidate withdraws after the filing deadline. The Libertarian Party typically sets this as 11:59 pm the night before the convention. So there is actually NO REASON for a November filing deadline for candidates for convention-nominating parties. They should be permitted to set their own deadline by rule. Someone who votes in a party primary may not participate in the convention of another party, so there is no risk of sore losers being nominated by convention.
Similarly, there is no reason for independent candidates to file in November that they intend to collect signatures beginning in April, 5 months later. Just let them collect the signatures when they decide to run.
‘American Party of Texas v White’ said:
“The aspiring party is free to campaign before the primary and to compete with the major parties for voter support on primary election and precinct convention day. Any voter, however registered, may attend the new party’s precinct convention and be counted toward the necessary 1% level. Unlike the independent candidate under Texas law, see infra at 788, and his California counterpart, see Storer v. Brown, 415 U.S., at 738, 94 S.Ct., at 1283, a party qualifying under Art. 13.45(2) (Supp.1973) need not wait until the primary to crystallize its support among the voters. It is entitled to compete before the primary election and to count noses at its convention on primary day, just as the major parties and their candidates count their primary votes. Furthermore, should they fall short of the magic figure, they have another chance—they may make up the shortage and win ballot position by circulating petitions for signature for a period of 55 days beginning after the primary and ending 120 days prior to the general election.”
This is of course no longer true. The ending date is much earlier than 120 days before the general election. While the petition deadline is based-in-law on the date of the primary, it was really tied to the need to have candidates determined in time to be placed on the general election ballot. The problem is that the primary has moved 6 months earlier since the basic framework was established (7 months if SB 452 is adopted)
In addition, because of early voting, new parties are no longer on equal footing in competing for voters. In particular, with respect to overseas voters, they can’t compete at all. This might be in violation of the MOVE Act, or possibly Equal Protection (even if they are complying with a federal statutory mandate, they must also comply with US Constitution).
At minimum, voters should be able to affiliate with convention-nominating parties at the same time they would be able to affiliate with a primary-nominating party – when they vote early (50% plus of voters do so) or apply for a by-mail ballot.
There is no reason that precinct conventions be held on election night. This is no longer a requirement for primary-nominating parties. The Libertarian Party typically holds countywide precinct conventions, which choose delegates to the county convention. It is more than a little silly to require these two events to be held 4 days apart.
Convention-nominating parties should only be required to hold county and state conventions. If they wish to hold primary conventions before a county convention they may do so. If they want to hold district conventions they may do so. It would be the choice of the party whether multi-county district nominations are made at the state convention or a district convention. The party could set their own schedule.
And instead of qualifying parties for the general election ballot, Texas should go to a system of qualifying candidates (somewhat analogous to that used by Washington during the blanket primary era).
Conventions would require actual participation, perhaps 1000 statewide, and proportionately fewer for district, county, and precinct offices (roughly 30 for state senate or congressional nominations, 7 for house nominations). This is essentially a quorum requirement.
To qualify for the general election ballot, a candidate would need 1% of the vote cast in the primaries for the area covered by the office. Participation in a convention or primary would be counted towards that number.
The filing deadline could be something reasonable like the end of July. It would be advantageous for a party to hold its conventions earlier in the year, but not mandated. Similarly, an independent candidate might want to start collecting signatures sooner rather than later.
#3, if a law requiring parties to tell Texas that they intend to qualify, no later than November of the year before the election, had been in existence in the past, these new parties would have been barred from the ballot: (1) the Republican Party, which wasn’t formed until July 1854; (2) the States Rights Democratic Party, which wasn’t formed until July 1948; the Union Party, which wasn’t formed until May 1936; the Progressive Party of 1912, which wasn’t formed until August 1912; the Natural Law Party, which wasn’t formed until April 1992; the Citizens Party, which wasn’t formed until December 1979; the Texas Regulars Party, which wasn’t formed until sometime in 1944.
#4 The election of representatives to the 34th Congress from Texas was on August 1, 1855. So if Texas required a party to notify the Secretary of State by August 1854 that they intended to nominate by convention in November 1854, they could have.
As you know, there were no government-printed ballots in 1854, and most of those persons who you claim as Republicans did not actually runs as Republicans.
During the oral arguments for ‘Foster v Love’, the Attorney General for Louisiana argued unsuccessfully that the Open Primary was so novel, that it was a Manner regulation, and thus not subject to the Time regulation imposed by Congress. The lawyer for Love argued successfully that the Open Primary was identical to that used everywhere in 1872 when Congress first set the uniform congressional election date.
A reasonable argument could be made that state-conducted preliminary elections that eliminate candidates prior to November, and are not open to all voters violate the 1872 law.
The Texas Regulars weren’t formally organized until September 1944. They had originally taken control of the Democratic Party in the first state convention, and attempted to prevent the renomination of FDR. They failed, and then the national Democrats re-gained control of the Democratic party at the second state convention (there used to be two) and nominated FDR-supporting electors. The Texas Regulars did not have a presidential candidate, but it didn’t matter because ballots did not have the names of presidential candidates, but rather just the names of electors.