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

June 17, 2012

© 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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CLUBS RULE

February 19, 2010

UPDATE 04.14.12: As of today, neither the Texas Democratic Party nor the Republican Party of Texas is registered with the Secretary of State as a corporation; limited partnership; or limited liability company. In other words, they remain private clubs.


NOTE: Reading this article in conjunction with TEXAS TWO-STEP enhances its significance.

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In the summer of 2008, before I knew half as much about the political process as I have learned since that time, I submitted a comment to the PUMA PAC blog, containing this epiphany:  the Democratic Party is only a club.

See, I had just ‘learned’ there exists a category of states I dubbed ‘vote binding states,’ which are those states that have enacted laws essentially saying, ‘In our state, being a “pledged delegate” means, you must vote for the person voters elected you to represent, on the roll call vote on the floor of the party Convention.’  (Did you know, DNC rules only require pledged delegates to use their “good conscience”?)  (“All delegates to the National Convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.”)  (http://s3.amazonaws.com/apache.3cdn.net/fb3fa279c88bf1094b_qom6bei0o.pdf, p. 23.)

I saw that BO’s people were harassing HRC pledged delegates to change their votes to him, in advance of the Convention.  In other words, in these vote binding states, BO’s people were enticing HRC’s people to break the law.  So, I drafted letters to state Attorneys General in the 13 (thirteen) vote binding states I identified, complaining about this illegal conduct from BO’s camp.  Next, I needed to recruit voters from those vote binding states to send these letters.  But first, I had to explain to these recruits, in lay terms, what I was talking about.  For this, I developed a primer.  And in the primer, here is how I summarized the hierarchy of commandments applying to pledged delegates: state laws trump the rules made up by the political party, every time.  https://jbjd.wordpress.com/to-stop-harassment-of-clinton-pledged-delegates-in-vote-binding-states/

That’s when it hit me: the Democrats (and Republicans) are nothing more than private clubs.

#309 jbjd on 08.18.08 at 3:59 am

THIS IS THE MOST IMPORTANT COMMENT I HAVE EVER WRITTEN OR WILL EVER WRITE ON THIS BLOG… PLEASE REFER OTHERS TO THIS COMMENT THROUGHOUT THE DAY, IN SUBSEQUENT COMMENTS… I AM BUSY WRITING YOUR STATE-SPECIFIC LETTERS TO THE ATTORNEYS GENERAL, TO BE COPIED TO OUR DEAR STATE DELEGATES PLEDGED TO HRC, TO LET THEM KNOW, WE HAVE THEIR BACKS…

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DECONSTRUCTING DEMOCRACY AND THE DEMOCRATIC PARTY

My Dear Fellow PUMAs,

If you are going crazy trying to figure out what’s happening with the Democratic Party, join the club. I’m not kidding. Join the club. Because it just hit me, the way to understand this Democratic nominating process is to think of The Democratic Party as what it is – a club. And the only thing that makes this club so special is that it was able to get permission from each of the 50 states to collect campaign contributions and put the names of the candidates it wants to hold office onto the state’s election ballot. That’s it. That’s all there is. Let me explain.

According to Party – or rather, club rules, presidential candidates are chosen at the club’s nominating convention. Afterward, the club submits the name of its candidate for POTUS to the appropriate state official in each state – usually the Secretary of State – as part of an application to get onto the state’s general election ballot, in compliance with that state’s laws. In fact, states only allow the candidate for POTUS chosen by a “major political party” to submit ballot papers so late in the game because club rules and by-laws require their candidates to be chosen at a “nominating convention.”

The club determines who will be its candidate for POTUS on the general election ballot through a vote at the convention by people it calls “delegates,” which delegates obtained that status through an allocation process set by the club. That is, the club places the names of its proposed candidates on state ballots in the primary and caucus elections and then, in exchange for receiving a specific number of votes in that process, the candidates are assigned a delegate to vote for them at the convention. Most state delegates are given a special status, called “pledged.” According to club rules, when these pledged delegates cast their votes at the convention, they should use their best judgment to represent the wishes of the voters based on whose votes they were elected. Historically, by counting these delegates pledged to each candidate, the club has usually been able to predict which of its candidates will end up with the nomination at the end of the primary and caucus process, since one candidate usually garners enough pledged delegates to surpass the number the club set as the requirement at the convention. But not this year. Neither club candidate – BO or HRC – was assigned enough delegates through the primary and caucus process to secure the nomination at the convention. Luckily, the club had in place rules whereby this deficit in delegates could be made up by special delegates commonly referred to as super delegates who get to cast their votes for either candidate at the convention.

The Democratic Party set up volumes of rules and by-laws that govern all these operations, with auspicious sounding titles like “Charter,” “Constitution,” “Model Rules to Delegate Selection Process,” and “Call to the Convention.” But here’s the thing about all these club rules: they can be changed at any time. According to club rules. So, if like me, you have read club rules and believe, as I do, that members of the club have not played fair throughout this presidential nominating process, am I saying there is nothing you can do about it? Hardly.

Remember what I said in the beginning: the state only lets the club get onto official state ballots as long as they follow state rules. And unlike club rules, when states make rules, they’re called laws. (TO BE CONTINUED…)
©jbjd

(In the interest of full disclosure, let me say, I was banned from that blog just days after this comment was posted.)

In the 1 1/2 years since I experienced this 3:00 AM epiphany that ‘club’ is just another word for ‘political party,’ I have learned (and written) volumes about the DNC.  Now, I know it by its official name:  the Democratic National Committee Services Corporation.  That’s right; it’s a corporation.  That’s why I now regularly refer to this business entity as the D Corporation (in case you hadn’t noticed).

Before I initiated the present campaign to submit document requests to the Texas Democratic Party (“TDP”) under the Texas open records law, I had to determine whether the TDP was a covered entity under that law.  First, I tried to ascertain its legal construct. I hit a brick wall.  Luckily, through other means, I was able to conclude, the TDP is subject to provisions of the open records law, regardless of its organizational construct.  Then, after the campaign to obtain records was underway, a loyal Texan and I continued to research the nature of the TDP until we got answers.

So, what is the legal construct of the TDP?  Let me give you a hint what it’s not.

Here are the documents returned by the TX Secretary of State web site after a paid on-line search of documents held by that office, for an entity called Texas Democratic Party (“Find Entity Name Search”).  (Recall that the Certification of BO’s Nomination signed by TDP Chair, Attorney Boyd Richie, and submitted to state election officials to get them to print the name of Barack Obama next to the D on the general election ballot; was printed on letterhead showing the name, “Texas Democratic Party.”) (See this document and Mr. Richie’s accompanying letter, also on TDP letterhead, on p. 3 of the citizen complaint of election fraud to AG, in REMEMBER the ALAMO )

Did you notice what name is missing?  Yep; the Texas Democratic  Party.  In the words of Randall Dillard, Director of Communications, Office of the TX SoS:  “There is no requirement in state law that political parties organize as a business entity and since the parties are not found in a search of our records, they are not organized as corporations, limited partnerships or limited liability companies.”

Whoa!  If the TDP is none of these then, what is it?

Well, I tried a Google search for “clubs in Texas.”  And look at what showed up at the bottom of page 6  (not to be confused with Page Six, the NY Post scandal column, http://www.nypost.com/pagesix): Clubs and Organizations:  Texas Democratic Party

So, I clicked on that link, which led me to all of the Clubs and Organizations organized under the big top of the TDP.

I clicked on the link in the lower right-hand corner, txdemocrats.org.  Look who was staring me in the face.

Boyd Richie, Chair of the Texas Democratic Party.

In sum, here is the answer to the question, what is the TDP.  It is the club mystically possessed with the power to get TX election officials to print the name of Barack Obama next to the D on the state’s 2008 general election ballot based only on the word of its Chair that he is Constitutionally eligible for POTUS, notwithstanding no one in the club is willing to disclose, why.

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Freedom costs.


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