WILL TX AG ABBOTT PROSECUTE the TDP for VIOLATING the TX PUBLIC INFORMATION ACT?

© 2012 jbjd

The Texas legislature enacted a law that directs the chairs of the major political parties to submit to the Secretary of State (“SoS”) the names of the party candidates who will appear on the ballots in both the Presidential preference primary as well as the general election.  It also passed a law that entitles candidates for President from the major political parties to appear on the general election ballot, only if they are “federally qualified” for the job. TX Election Code  §192.031

Unlike the Presidential candidates from the major political parties; Independent and Write-In candidates apply to appear on the general election ballot directly to the SoS. For this reason; consistent with the ‘federally qualified’ standard; the SoS designed ballot applications for use by both Independent and Write-in Presidential candidates which contain self-affirmations that, under the pains and penalties of perjury, the candidates are Constitutionally eligible for the job. (We found these by searching the SoS’s official web site, http://www.sos.state.tx.us/elections/forms/index.shtml)

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True, a self-affirmation is arguably not as foolproof a method of establishing the candidate is federally qualified as, say, requiring the candidate to authorize a birth certificate to be generated by the issuing authority and delivered directly to the state official. HOW to WRITE SMART CANDIDATE ELIGIBILITY LAWS in your STATE (and make applying to get on the ballot harder than applying to get into Harvard) But at least  one might expect that, like in the case of the witness testifying in open court under the pains and penalties of perjury; the self-declaring candidate is more likely than not to be telling the truth.

In TX, Presidential candidates from each of the two the major political parties must apply to the party chair to get onto the Presidential preference primary ballot, using the individualized application forms designed by each party. The chair determines which names to forward to the SoS, who merely prints the names thus supplied.

The forwarding of names of Presidential candidates from the major political parties, to the SoS; is done through an electronic submission of data, using Excel-like spread sheets the Secretary designed. This format limits the information the parties are able to transmit to little more than the candidate’s name, address, and date of birth. BALLOT ENTITLEMENT LAWS should DISQUALIFY PRESIDENT OBAMA in TEXAS. This means that, with respect to the names of the Presidential candidates which are submitted to the SoS by the major political parties; the Secretary never sees the candidates’ actual ballot applications. By thus limiting any opportunity for the political party to transmit documentation which might have resulted in a federal eligibility determination; the SoS is merely assuming the political party has determined their candidates are federally qualified for the job.  Indeed, whenever Texans asked the SoS on what documentary basis her office ascertained the Presidential candidates from the major political parties were federally qualified for office before she certified these names to the ballot; they were always referred back to the political party.

In other words, the SoS makes Independent and Write-In Presidential candidates ‘prove’ they are federally qualified for office before allowing their names to be printed on the general election ballot, consistent with the law. But when it comes to establishing that the Presidential candidates from the major political parties are federally qualified for office and thus have earned the statutory entitlement to appear on the ballot; the SoS takes the party chairs at their ‘implied’ word.

(Note that §192.031 refers to being “federally qualified” as necessary to achieve entitlement to appear on the general election ballot. There is no corresponding statute with respect to the primary ballot. However, as individual candidates must apply directly to state political party chairs to get on the primary ballot in TX; this represents the only opportunity for these chairs to establish whether the candidates are federally qualified for the job.)

TX has an extremely powerful public information law (“the Act”). Here is the opening section.

Sec. 552.001.  POLICY; CONSTRUCTION. (a) Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.

(b)  This chapter shall be liberally construed in favor of granting a request for information.

Using the Act; TX citizen activist Kelly Canon was able to obtain from the SoS documents such as the electronic transmittal forms they had received from the political parties. However, recall that neither the Republican Party of Texas (“RPT”) nor the Texas Democratic Party (“TDP”) is required to submit to the SoS either the actual primary ballot applications submitted to them by the Presidential candidates; or any other ‘evidence’ of the candidates’ federal qualifications. As a result, Ms. Canon could not obtain these documents by submitting a request under the Act, to the SoS. However, the Act equally applies to enumerated documents generated by political parties.  http://www.statutes.legis.state.tx.us/Docs/EL/pdf/EL.161.pdf Further, under §552.321 of the Act, production of documents requested can be compelled by the courts in an action in mandamus, initiated either by the AG or the aggrieved citizen. Id.  So, in order to obtain any documentation held by the political parties with respect to their candidates’ federal qualification; pursuant to the Act, Ms. Canon sent letters to both the RPT and the TDP specifically requesting “any and all documents which were the basis for your certification to the TXSoS that these candidates are federally qualified for the job.” (Identical letters were sent to both political .parties; here is the letter sent to the TDP.)

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Here’s what she got back from the RPT.

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As you can see; just like the SoS, the RPT also interpreted the TX ballot entitlement statute to mean, their Presidential candidate must be federally qualified in order to appear on the ballot. And, just like the SoS, they designed a primary ballot application which contains the same self-affirmation found in the SoS’s applications for Independent and Write-In candidates to appear on the general election ballot.

Recall that, ballot applications from both Independent and Write-In Presidential candidates, which contain the self-affirmation of federal eligibility; are submitted directly to the SoS. True, swearing to the chair of a major political party that you are a federally qualified Presidential candidate is technically not the same thing as swearing directly to the SoS. However, in TX, this represents a distinction without a seminal difference. Because when the political party chair is acting like a state official, for example, when s/he is determining which candidates’ names will be forwarded to the SoS to appear on the ballot; then, under TX perjury laws, the penalty for lying is the same! Id.

On the other hand; all Canon got from the TDP was a ballot application that contained neither any language of Constitutional eligibility nor any self-affirmation the candidate is federally qualified for the job!

Obviously, this is not at all what she asked for.

Thus, having refused (for whatever reason) to provide the requested documentation; the TDP violated the Act. And recall that, under §552.321 of the Act, production of documents requested can be compelled by the courts in an action in mandamus, initiated either by the AG or the aggrieved citizen. Id. Consequently, exercising the protocol spelled out in the Act, on June 13, Ms. Canon filed a complaint with AG Abbott against the TDP.

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AG Abbott published the Public Information 2012 Handbook. This letter to “Fellow Texans” appears on the first page:

Dear Fellow Texans:

James Madison once wrote, “Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” The best way for the people to arm themselves with that knowledge is for government to maintain openness in its dealings. Texas places a high priority on government openness, and the Public Information Act (PIA) is the primary law that requires it.

At the Office of the Attorney General (OAG), we are dedicated to helping citizens and public officials understand their rights and obligations under Texas open government laws. To that end, we publish the Public Information Handbook. This comprehensive resource explains the history of the PIA and includes such topics as how to make an open records request, what types of information are subject to such requests, and the consequences of a governmental body’s noncompliance. The 2012 edition also reflects PIA changes that were made by the 82nd Legislature.

Other open government resources are available on the OAG website at www.texasattorneygeneral.gov. These resources include frequently asked questions; a library of open records decisions dating back more than 30 years; and a public information cost estimate model, which assists governmental bodies in determining the cost of a public information request. Texans can also call our open government telephone hotline (877-OPEN-TEX) with their questions.

Thanks to Madison and the rest of America’s founders, this nation was established upon the principle of self-governance. We are heirs to that legacy. I hope this Public Information Handbook assists you in ensuring that Texas government remains accountable to the people it serves.

Sincerely,
Greg Abbott
Attorney General of Texas

Given the commitment memorialized in this handbook, to the principle that “government remains accountable to the people it serves”; will TX AG Abbott now prosecute the TDP for violating the TX Public Information Act?

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12 Responses to WILL TX AG ABBOTT PROSECUTE the TDP for VIOLATING the TX PUBLIC INFORMATION ACT?

  1. kjcanon says:

    Awesome work, jbjd!!! I trust people (especially TEXANS!) are contributing to your incredible efforts here. This is a GIFT, which I hope hundreds if not thousands of us take full advantage of. The TDP will NOT get away with this! THANK YOU!!!!

    • jbjd says:

      kjcanon: Of all people; you know, this work is not accomplished alone. My ‘solutions’ cannot be implemented without on-the-ground efforts from (people like) you. You are most gratefully welcome. ADMINISTRATOR

  2. ecogreenman says:

    The effort is an awesome commitment of your ‘Life’s Energy’ to make sense out of this total disregard for TX Law. Speaking as one who appreciates this hugh effort, I will continue my support through donations.

    FYI, the ‘PayPal Donation Button” at the base of your post, is not active.

    • jbjd says:

      ecogreenman: Welcome; and thank you very much for appreciating the work. You can imagine how labor intensive are these efforts. ‘Good on you’ for putting in the time and energy necessary to master our civic system, too! ADMINISTRATOR

      P.S. I fixed the link. (The one in the sidebar was working, thank goodness.)

  3. kjcanon says:

    Just a cute little side story… I rounded up my nephew and decided to explain to him what just happened (with the complaint), and showed him the actual applications. At the end of the talk, his first question was, “Wow! When’s the press gonna get called????” He couldn’t believe what he saw… I described the whole maneuver the TDP has pulled as trying to “hide in plain sight”. They were hoping no one would notice something so simple, yet so obscure. But eventually, anyone trying to do that will ultimately blink, and than it’s ‘game over’. I think they blinked. 🙂

    • jbjd says:

      kjcanon: Ha! This reminds me of OUT of the MOUTHS of BABES! (For those who don’t know; your nephew is about 19, right?) But know what? I think the ‘press’ cannot be as ignorant of the facts as may appear. Rather, I suspect the refusal to report what we have identified are the pertinent facts in the eligibility analysis; is based more on vested interest than on inability to do the job. ADMINISTRATOR

      P.S. He must be so very proud of his aunt.

  4. DJ Zitko says:

    Do you have a petition that we can sign to support your complaint to the Texas Attorney General?

    • jbjd says:

      DJ Zitko: Welcome. No; I have no petition. But what a great idea! To let AG Abbott know you want him to pursue this complaint against the TDP for violating the TX Public Information Act; you could always start such a petition, and get other Texans to sign it. Or, you could call or write the AG. As long as you do SOMETHING to let him know how you feel. ADMINISTRATOR

  5. […] UPDATE 06.21.12: Okay, this is getting complicated. As it turns out, SoS Andrade has determined, the legal standard of entitlement for Presidential candidates to appear on the ballot is this: they must be federally qualified for the job. When it comes to Independent and Write-In candidates; the SoS determines they are federally qualified through the ballot application she devised, self-affirming Constitutional eligibility. She only assumes the RPT and TDP have confirmed the federal qualifications of candidates whose names they electronically transfer to her office, to appear on the ballot. The RPT verifies, using the same type of self-affirming ballot applications used  by the Secretary. On the other hand; the TDP says nothing on its application about being federally qualified for the job. WILL TX AG ABBOTT PROSECUTE the TDP for VIOLATING the TX PUBLIC INFORMATION ACT? […]

  6. […] Presumably, the esteemed Chair of the RPT knows when it comes to submitting names to the TX ballot; he is a public official, required to respond to this request for public information. Because his brother in the law, Attorney Richie, Chair of the TDP, knows. When we sent this letter to him – he gave us everything we wanted – (CORRECTION 06.24.12: He only appeared to give us what we wanted. Because as Kelly pointed out; this application was missing any language establishing the candidate was Constitutionally eligible for the job; and she had asked for documents which were the basis for his finding the candidates whose names he submitted to the SoS to appear on the ballot were “federally qualified.”) (See WILL TX AG ABBOTT PROSECUTE the TDP for VIOLATING the TX PUBLIC INFORMATION ACT?) […]

  7. Tomtech says:

    Hello old Friend,

    Your mixing up your codes and Titles. §191 applies to the Primary and Caucuses/Conventions and it doesn’t have the qualified for the office language which §192 has.

    §161, where you get the idea that you have a right to get the documents states that “(i)f a document, record, or other paper is expressly required by this title to be filed, prepared, or preserved, it is public information unless this title provides otherwise.”

    §161 is under Title 10 and doesn’t apply to §191 or §192 which are under Title 11.

    • jbjd says:

      Tomtech: I am so glad you sent in this comment! Yes, of course, the ballot entitlement clause in section 192 is triggered for the general election ballot. (See https://jbjd.org/2012/04/16/ballot-laws-disqualify-bo-tx/) However, only party candidates applying to get on the Presidential preference primary ballot must, by law, submit their applications to the the party, who selects which names to forward to the Secretary. Therefore, the only mechanism for ascertaining federal qualification is through this process. Otherwise, the nominee is selected by the national party. And while the ‘federally qualified’ ballot standard still applies; there is no individual mechanism at that point for the state party to ascertain federal qualification.

      As I point out in this article; under Sec. 191.003, the state party chairs, by law, must submit to the SoS the names of candidates to appear on the Presidential preference primary ballot. Therefore, he must obtain their written ballot applications! And, if the reason no documents related to federal qualification were produced is that, they don’t exist; then this means, the D candidates for the primary ballot have not been federally qualified (to appear on the general election ballot). ADMINISTRATOR

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