On May 23, Texas Governor Greg Abbott signed SB 44. It makes two somewhat unrelated changes. It restores the old requirement that judicial candidates, seeking a place on a statewide primary ballot, need 950 signatures even if they pay the filing fee. Such petitions need 50 signatures from each of the 19 judicial districts. In the past this petition requirement has sometimes discouraged Democrats from running a full slate of partisan judicial nominees. The petition was not in effect during 2016 and the Democrats did run a full slate in 2016, for the first time since 2002. Now that the petition requirement is back, that makes it somewhat more likely that Democrats won’t run a full slate in 2018.
Also, SB 44 says that candidate petitions need not be checked for validity, unless some files a challenge. If someone does file a challenge, the challenge must state explicitly what signatures are invalid. Thanks to Jim Riley for this news.
There are 14 appellate districts, with two in the Houston area that are coterminous (appeals are assigned randomly between the two). There are wide variations in number of persons in the appellate districts, so that conceivably a lawsuit against the distribution requirement might succeed.
Essentially it is busywork, as it requires travel to 13 different cities to collect the signatures. While you might travel to dozens of county courthouses and collect a few signatures at each, why bother? It might not make sense to hire a paid circulator.
The petition requirement was eliminated in 2015. A Republican candidate for the Court of Criminal Appeals, Sid Harle, had traveled around Texas gathering signatures not realizing this. There were two last minute filers who simply paid the fine, for a total of four candidates. While Harle on paper was the most qualified, he finished fourth in the primary. Voters apparently believed that Wisconsin Governor Scott Walker was running for a judicial position in Texas (or maybe they had just heard “good things” about “Scott Walker”).
The petition requirement also applied to appellate courts that contained larger counties, and district, county, and Justice-of-the-Peace courts in smaller counties. For these positions, 250 signatures are needed (in addition to the filing fee). It was removed in 2015, and restored in 2017.
In 2014, there was a Republican Justice of Peace candidate in Harris County who hired someone to circulate petitions. They just started copying names from the voter rolls, perhaps after discovering that circulating a petition took actual effort. The person who had been hired for the effort was known as the “sign guy”, because he was really good at planting campaign signs (he maybe owned a truck, and knew where to find some helpers who worked cheap). After he was indicted, the district clerk was quoted as saying that it looked like he was going to have find a new sign guy.
Anyhow, the Democratic candidate found out about the petitions (in Texas, filing for the primary is with the party chair, but the application including the petition is public record), and filed suit after ballots had been sent out. Both the Democratic and Republican candidates were unopposed. Rather than decide the case, the judge let the primary go ahead, and the Republican received more votes, and clearly demonstrated a modicum of support. The district court then let the Republican candidate cure her petition by collecting signatures, which she easily did since she had lots of support from the party by then. This was overturned by an appellate court, since Texas does not have a statutory provision for curing petitions.
The Democratic candidate had managed to get sworn affidavits from the actual circulators that they had committed a felony. When the Republican candidate first heard about the faulty petitions, she immediately called the District Attorney. The circulators were charged and eventually plea bargained to a shorter prison sentence.
For statewide judges, there were incumbent Supreme Court justices whose petitions were challenged by candidates supported by trial lawyers. In the petition challenge, they were represented by well-known Democratic election lawyer Buck Woods.
These two cases were the impetus behind eliminating the petition requirement in 2015, though it was somewhat of an accident that it was passed.
In 2016, with the petition requirement eliminated, a candidate could file for a judgeship with a fee, and win a primary based on their name. With dozens of judicial races on a ballot, it is unlikely that 5% knew anything about any candidate, and candidates with a more common name would have an advantage. They would then be swept into office on a straight-ticket vote. Judicial candidates are quite restricted in how they can campaign, since they can’t campaign on actual cases that might come before them. It is more about qualifications, or if they have run an efficient docket.
A good lawyer is going to take a pay cut to become a judge, and if they are in private practice, will have to shut it down. A less-qualified lawyer will get a pay raise, and if they were in private practice always scrambling to get a regular income.
So in theory, the restoration is to ensure that the judicial candidates are “civically engaged” or “vetted” by the petition signers. The only judicial petition I have ever signed was circulated by the candidate outside a polling place for a city election. I had no idea who she was, but she was pretty and smiled. The political parties also hold petition signing parties, where you can go sign petitions of dozens of candidates, and perhaps talk to them.
There is a very short period between the filing deadline for the primary and when ballot preparation begins, and overseas ballots are sent out. If a candidate claims on his application that he is old enough or lives at a certain address there is not much chance to verify the information. If it is later determined that the information is false, the candidate may be prosecuted for perjury. Checking a petition is relative time intensive. So while the petition requirement is restored the party chairs only have to check that the application and petition are facially valid (what can be determined by looking at the sheet of paper). Someone who has a self-interest in knocking an opponent off the ballot can spend the effort researching signatures.
The changes in the application and petition requirements are in the portion of the Election Code regarding all applications for office, not just partisan offices. So the changes apply to independent candidates in partisan elections, and all candidates in non-partisan elections, even though those applications are made with government officials. It could conceivably apply to applications for nomination by convention, since those applications must comply with statutes with respect to an application for a place on a ballot to the extent practicable. Party chairs for a minor party are probably quite interested in an application being correct, and might look it over before accepting it. Conceivably a Democratic or Republican opponent could challenge an application.
Is it constitutional for the state to mandate signatures for one type of election but not for the others? Would this withstand an equal protection challenge?