On August 10, the new Texas Secretary of State notified the U.S. District Court that the new Secretary of State has the same position as the former Secretary of State, and that position is that he will defend the Texas open primary system in court. However, he also predicted that the 2027 Texas legislature will change the law and established closed primaries.
It might have seemed obvious that the Secretary of State would defend the state’s election law, and normally of course defendant state officials do defend their state’s laws in court. But in this case, the Attorney General believes the law is unconstitutional and is not defending it. That forced the Secretary of State to hire outside attorneys to defend the law.
Historically in Texas, it is the Secretary of State who is sued in their official capacity in cases involving election law. For example, in ‘American Party of Texas v. White’, Mark White was Secretary of State at the time. The SOS was defended by the Texas Attorney General, in this case, Attorney General John Hill personally argued the case before the SCOTUS.
In ‘Bullock v. Carter’, Bob Bullock was Secretary of State appealing a district court decision. The district court decision was styled ‘Carter v. Dies’, as Martin Dies, Jr. had been Secretary of State when the case was tried by the district court. The Texas Democratic Party (TDP) chairman was also a defendant, since it was the party that was imposing the filing fees. The attorneys arguing the case before the SCOTUS were an attorney for the TDP and an assistant attorney general for the SOS/State of Texas. Crawford Martin was Attorney General and participated in the briefing.
In general, the SOS argues that they are administering laws passed by the legislature, that the laws are constitutional, and if you want different laws you should go talk to the legislature.
In the closed primary case, the Republican Party of Texas (RPT) sued the State of Texas AND the SOS Jane Nelson. The SOS was responding conventionally, giving notice of their attorneys, asking for a delay in filing their reply to the complaint, etc. The plaintiff RPT and defendant State of Texas (represented by the Attorney General) then filed a joint motion agreeing that the state law was unconstitutional. They gave their co-defendant SOS one hour to respond if the SOS wanted to join the consent decree.
I suspect that the RPT and the Texas Attorney General colluded in the filing of the lawsuit in the first place.
John Hill who was Texas Attorney General at the time