© 2012 jbjd
(The following narrative explaining the Texas Ballot Challenge is incorporated into a slide show presented by Texas citizen/activist Kelly Canon of Arlington, to civic groups throughout the state.)
Texas, We Have a Problem
We here in Texas have a problem with our 2012 general election ballot; and I’m going to tell you how we can fix it.
Generally, people will only cast their votes for a President they know is Constitutionally eligible for the job. And, thanks to candidate ballot eligibility laws passed here in Texas; voters should be able to trust that the candidates whose names appear on our general election ballot have been federally qualified. But, at least in 2012; they have not. Because as you will see; these election laws are being ignored by the responsible state governmental entities. And their conduct virtually guarantees that the November 2012 ballot will contain the name of at least 1 candidate who has not been federally qualified for the job.
That is; unless concerned citizens like us intervene.
Before I go any further, I need to emphasize that the problem here is ballot eligibility, not whether a specific candidate is eligible for office. Because under the Constitution; political parties have the right to run any candidates they want. No doubt about it. But under Texas election laws, those party candidates are not entitled to be placed on the general election ballot unless they are federally qualified for the job.
I also want to remind everyone that I have been collaborating on this Texas ballot challenge with noted blogger “jbjd,” who for the past 4 years has been advising frustrated voters throughout the country: if you think a candidate is ineligible for office then, the way to keep him out of the White House is to keep him off the ballot. But this only works in a state with ballot eligibility laws. She has focused on the ballot here in Texas because, in her words, we already have some of the best laws. They just have to be enforced.
So, how do candidates for President and Vice President get their names on our general election ballot, anyway? Well, it all depends on whether they are Independent or Write-in, that is, Unaffiliated; or representing either the Republican or Democratic Party.
Unaffiliated candidates submit their applications for the general election ballot directly to the Secretary. On the other hand; the names of the Presidential and Vice-Presidential nominees from the national Republican and Democratic Parties are submitted to the Secretary via the Chairs of their state parties: the Republican Party of Texas (“RPT”) and the Texas Democratic Party (“TDP”).
But keep in mind; whether the candidate is Unaffiliated; or representing the Republican or Democratic party; only the names of federally qualified candidates are entitled to appear on the Texas general election ballot.
Let me read the ballot entitlement law that applies to the parties, which is section 192.031 of Texas statutes, “PARTY CANDIDATE’S ENTITLEMENT TO PLACE ON BALLOT”: “A political party is entitled to have the names of its nominees for president and vice-president of the United States placed on the ballot in a presidential general election if the nominees possess the qualifications for those offices prescribed by federal law.”
And, if the party nominees possess the qualifications for offices prescribed by federal law then, under section 192.033; …“the Secretary shall certify the names of the candidates for president and vice-president who are entitled to have their names placed on the ballot.”
Taken together; these 2 laws – 192.031 and 192.033 – plainly say that party candidates are entitled to appear on the general election ballot only when they are federally qualified for the job; in which case, the Secretary has no choice but to certify their names to the ballot. Conversely; if candidates have not established their federal qualifications then, they have no right to appear on the ballot; and the Secretary shouldn’t put them there.
So, who determines whether, consistent with the statute, a candidate for President or Vice President can be said to be federally qualified? Well, the Secretary, that is, the Executive branch, promulgates the rules and regulations to carry out the statutory intention of the Legislative branch.
And the Secretary has determined that federal qualification can be met simply by filling out a ballot application which asks the candidate to answer the following questions: are you 35? Have you lived in the U.S. for 14 years? Are you a NBC? And to swear the answers given are true. How do we know this ballot application process satisfies the Secretary’s standard for federal qualification? Well, as I pointed out; Unaffiliated candidates for President and Vice President get on the general election ballot by applying directly to the Secretary. And they do so using application forms which she designed, and which are submitted directly to her. Those ballot applications contain these provisions related to federal qualification. For both the Presidential and Vice-Presidential Unaffiliated candidates.
But as we have said; the Republican and Democratic parties don’t fill out applications to get the names of their Presidential and Vice-Presidential nominees on the general election ballot. No; the state party chair merely passes on to the Secretary the names of the nominees elected at the national party’s Presidential nominating convention. Then, how does the Secretary ascertain whether those national nominees are federally qualified, that is, entitled to appear on the ballot? Well, as those of you who contacted the Secretary with respect to the 2008 general election already know; when it comes to determining candidate entitlement to appear on the ballot; she told us ascertaining federal qualifications was the responsibility of the parties! In fact; having ceded control over ascertaining the federal qualifications of party candidates, to the political parties; she certified to the 2008 general election ballot the names of those national nominees just by assuming their federal qualification.
First, we got mad. Then, at the direction of the Secretary; to find out how the national parties had federally qualified their candidates; we asked them.
In fact, beginning in 2008; citizens from several other states, with and without ballot eligibility laws, did the same thing.
For example, according to the rules for the Democratic National Committee (Services Corporation), their Presidential and Vice Presidential nominees must be Constitutionally eligible for the job. So, voters asked the DNC to disclose the documentary basis for ascertaining that Presidential Nominee Barack Obama, was Constitutionally eligible. And here’s what happened. Honorable Nancy Pelosi, Chair of the party’s Presidential Nominating Convention, ignored them. Alice Germond, DNC Corp. Secretary, referred all such questions to DNC Corp. General Counsel Joseph Sandler. He sent back this reply: ‘We are not a public agency and so, we don’t have to tell you. Go ask your Secretary of State.’
Of course, Secretary Andrade had sent Texas voters to them!
Well, it’s true that the national Republican and Democratic parties cannot be compelled to disclose the basis for their candidates’ federal qualification inasmuch as they are not public agencies. But unless we could discover what was the documentary basis for their federal qualification; we could not conclude that by assuming entitlement; the Secretary had abused her discretion. Fortunately for us voters in Texas; there’s another way to find out whether Presidential and Vice Presidential nominees have been scrutinized for federal qualification.
See, under Texas election law; in order to get the names of their Presidential nominee wannabes printed on the Presidential preference primary ballot, the chairs of the Texas state parties – the RPT and the TDP – must submit those names to the Secretary. This means that party candidates who want to appear on the primary ballot must apply directly to the party. And, under Texas law; candidate applications to appear on the ballot become public records upon filing. This makes those applications submitted to the RPT and TDP subject to the Texas Public Information Act (“PIA”).
So, to sum up so far; in Texas, the Secretary has determined that only the political parties are responsible for determining federal qualification, meaning, the only way to find out what documents were the basis for their candidates’ qualification, is to ask them; the national parties are not legally required to disclose such documentation and have refused to voluntarily provide such documentation; but in Texas, state parties are required under the PIA to produce the requested documentation. So, in 2012, using the PIA, I asked both the RPT and the TDP to produce federal qualification documentation. 
Turns out, just like the Secretary’s applications for Unaffiliated candidates to the general election ballot; the RPT applications for the primary ballot asks candidates the same eligibility questions, and contains the same oath that the answers given are true . (Only, this application is designed by the party, and filed with them.) In other words; the RPT candidates in the primary election have satisfied the standard established by the Secretary for federal qualification to be entitled to appear on the general election ballot.
The TDP requires their candidates to submit a primary ballot application, too. However, unlike the applications used by the RPT for the primary ballot; and the general election ballot for Unaffiliated candidates used by the Secretary; the forms designed and used by the TDP contain neither any language of federal eligibility nor an oath or affirmation. Yet, these applications are the only documents used by the TDP to determine which of their candidates to submit to the Secretary to certify to the primary ballot. How do I know? Because they told me so. In other words, their candidates have not satisfied the Secretary’s standard for federal qualification.
And here is a critical point: ordinarily, the Secretary does not see the applications the candidates submit to the parties to get on the primary ballot. Rather, having ceded the responsibility for federal qualification, to the parties; the Secretary only asks the parties to electronically transmit to her office the names of those candidates they, that is, the parties, want to appear. That’s it. And she puts those names on the ballot.
Remember, we are talking about 2 separate ballot eligibility laws here, one which entitles the federally qualified candidate to appear on the general election ballot; and the other which requires the Secretary to certify to the general election ballot the name of the entitled candidate. And as I just pointed out, none of the candidates whose names the TDP submitted to the Secretary for the primary ballot in 2012, had been federally qualified by the party. Yes, the Secretary certified their names to appear on the primary ballot, anyway. And, of course, that was fine. Because, again, the ballot entitlement statute only kicks in, on the general election ballot. But since the nominees for President and Vice President are chosen by the DNC and RNC; even though their names are routed through the TDP and RPT to the Secretary to put on the general election ballot; at that point the state parties have no authority to determine the nominees’ federal qualifications. This means that, those candidate applications submitted to the state party chairs for the primary ballot currently provide the only legal mechanism to determine the nominees’ federal qualifications. Thus, the only Presidential or Vice Presidential nominees entitled to appear on the Texas general election ballot in 2012; are those nominee wannabes who submitted applications to the RPT for the 2012 primary ballot.
But does the fact, the names of candidates who have not been federally qualified are not entitled to appear on the general election ballot mean, the Secretary cannot put them there, anyway? Hardly. As we have said; she can put them there by exercising her discretion. She did that in 2008.
And this is exactly what she intends to do in 2012. How do I know? Because in May, I met with Attorney Keith Ingram, Elections Director; and explained that the primary candidates submitted to the Secretary by the TDP had undergone no federal qualification, meaning they were not entitled to appear on the general election ballot. I even offered to show him the actual candidate applications I have received from both state parties. But, he wasn’t interested. On the contrary; he dismissed me with a wave of the hand (literally), proposing if I had a problem with the ballot configuration, I should ‘go tell it to the legislature.’
So, I did. That is, as the Texas legislature does not formally reconvene until January 2013; I met with members of the legislature’s interim election committee. They agreed; the Secretary is not carrying out the intention of their ballot eligibility legislation. The committee was tentatively scheduled to hold hearings this summer. Yet, too few members were sufficiently interested in remedying the ballot eligibility problem, to reach a quorum. As a result; the hearings have been postponed until after the parties’ Presidential nominating conventions, too late for committee members to help us fix the problem in time for the printing of the general election ballot.
In sum; under TX law, only the names of federally qualified candidates are entitled to appear on the general election ballot but as of now, the Executive branch intends to exercise its discretion to put candidates on the ballot who have not been federally qualified, anyway; and the Legislative branch won’t stop them.
Now, it is up to the Judicial branch to ensure that our ballot complies with state law.
This is where we come in. We, the citizens of TX, must ask the Judicial branch to order Secretary Andrade to refrain from exercising her discretion to place on the general election ballot the names of any Democrat or Republican candidates for President or Vice President who have failed to establish for the primary ballot, they were federally qualified for the job.
How do we do this? We file an injunction. Not to keep off the general election ballot both the Democrat and Republican parties; but only to keep off the ballot the names of those Presidential and Vice Presidential nominees from the parties who have not been federally qualified for the job. (Keep in mind; we don’t elect the President and Vice President in the general election, anyway, but only the Electors for the political parties.)
This means coming up with the money to draft the legal documents, and pay the filing and notice fees. In addition, because the Respondent is a state agency; the Motion must be filed in Austin, which means covering the cost of local accommodations during the court proceedings.
(I had considered that Steve Munisteri, Chair of the RPT, would be well situated to bring this case, because he not only has access to both the financial and legal resources required, but also the added advantage of being located in Austin. But that was before I realized; many of the Vice Presidential nominees currently being considered for the Republican Party were also not federally qualified to appear on the TX general election ballot, inasmuch as they hadn’t applied to the state chair for a place on the primary ballot. And even I am not brazen enough to ask Chairman Munisteri to file an injunction keeping off our general election ballot the name of the Republican Vice Presidential nominee!)
But regardless of who files this injunction; clearly, it needs to be filed, in order to protect the integrity of the ballot so that at least we voters here in TX know which candidates have (or have not) been federally qualified for the job. And we need to do this ASAP, before the Presidential nominating conventions. Because when they end; the national parties, through the state party chairs, will submit the names of the party nominees to the Secretary, who will certify the names of those candidates, even the ones who have not been federally qualified, to the ballot.
I am uniquely situated to file this injunction. For starters; I am the onIy person who can provide first-hand authentication of the evidence required to ‘make the case’: I have met with the Secretary and the Legislature; and, more importantly, obtained those critical candidate ballot applications directly from the parties. But I also have a good grasp of the issues involved and the confidence to present the Motion. (Hat tip to “jbjd” who, having conceived and assembled this case, is now preparing to draft the legal documents.)
But we need help. Lots of it. And not just financial. We need a core group of Texans – jbjd operates from the east coast – who can carry out a myriad of ‘clerical’ tasks, including but not limited to copying; faxing; and filing. If you want to sponsor this TX Ballot Challenge; please, see me after this meeting.
 The first request I sent to the TDP went unanswered. But jbjd advised me to send another request listing the applicable TX statutes. (She explained; they are more apt to pay attention if they know you know the law.) This time; they responded immediately.
 In fact; the TDP had not produced the documents I requested evidencing their candidates were federally qualified. (jbjd joked, it’s like asking the Secretary to produce a list of registered voters and she sends the budget, instead.) So, as provided for under the PIA, I filed a complaint of non-compliance with the Attorney General. Incredibly, AAG June Harden issued an opinion letter saying, the state political parties are not covered by the PIA, in the Texas statutes under Government Code, inasmuch as they are not listed in the “Definitions” section, as a “government entity.” However, she failed to notice that 1) the section of the PIA immediately preceding the definitions section, clearly indicates records which are “public” are covered by the Act; and 2) ballot applications are explicitly defined as “public records” under another title of the Texas statutes: Election Code.
Please, contribute to the TEXAS BALLOT CHALLENGE CHALLENGE.