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)

View this document on Scribd

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.)

View this document on Scribd

Here’s what she got back from the RPT.

View this document on Scribd

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.

View this document on Scribd

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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GOOD THING the REPUBLICAN PARTY of TEXAS READS the “jbjd” BLOG

April 19, 2012

© 2012 jbjd

Thanks to the Republican Party of Texas (“RPT”) I am able to amend some misleading information I posted in the previous article, BALLOT ENTITLEMENT LAWS should DISQUALIFY PRESIDENT OBAMA in TEXAS. How they came to aid in this clarification, is a hoot!

On Wednesday, April 18, at around 5:30 PM EDT, I received a call from kjcanon, in TX. “Are you sitting down?” Needless to say, I was by the time I answered her question.

Seems she had just received a call from Mr. Jesse Lewis, who is the Executive Director of the RPT,  concerning her open records request. (She had listed her telephone number on that request.) According to Mr Lewis, the documents she asked for had already been forwarded to the email address she provided, and he wanted to know why she would claim otherwise. Immediately, she thought back to that complaint she had just filed 2 days earlier with AG Abbott, charging that Steve Munisteri, Chair of the TDP, a public official under the Public Information Act inasmuch as he certifies candidate names to the ballot; had refused to produce public records she requested, which were the basis of his certification. Could that office have possibly followed up so quickly? She asked Mr. Lewis what was the source of his information: “…I saw the JBJD (sic) blog…”

Turns out, the RPT had sent the materials on April 5, to the wrong address and then, seeing my blog, on Tuesday, re-sent the materials, again to the wrong address. Finally, after contacting kjc on Wednesday, they got it right. They also asked her to pass on this information to me, which she did. (They didn’t ask her to withdraw the public information complaint she had filed with AG Abbott but she did that immediately, too.)

Here are those RPT emails.

Notice that 2 documents were attached: one, designated “20120405091443653.pdf,” which contained multiple candidate applications to the ballot; and the other designated “order on party conventions.pdf.” This second attachment leads to the other subject raised by Mr. Lewis, which we will discuss first.

As the result of a settlement recently reached among the parties in the TX redistricting lawsuit, the dates were changed for several key party functions during the primary season, including the voting by party members during the actual primary contest and, the holding of the party state convention, which changes now conflicted with existing state statutes. Consequently, the federal district court ruling on redistricting matters (on remand from the SCOTUS) issued several orders with respect to these new dates, in which all such inconsistencies were addressed. (Four such orders were issued between February 28 and March 1!) Here is a snippet from an Order entered on February 28:

d. Sections 163.00, 191.007, and 191.008, Texas Election Code, are suspended for the
purposes of modfications (sic) to party rules made pursuant to this order.

Mr. Lewis, again obviously referencing the article he had read here on the “jbjd” blog, now informed kjc that, according to item “d” of this redistricting court order; the RPT wasn’t required to submit its rules to the SoS by January 5, the date which appears in the statute, in order to preserve the entitlement of their candidates to appear on the ballot, anyway! He would send along that court order for her reference.

Now, having not yet seen any of the documents to which kjc referred, I could only ‘guess’ at why Mr. Lewis was wrong. I reasoned that, obviously, a rule determining federal qualifications was not impacted by a court order necessitating changes in filing deadlines, which, without the court’s exception, would conflict with existing state laws. Then, I saw the order. The modifying language in section “d” makes clear, the only party rules exempted from the deadlines contained in those specific statutes, are those rules which must be modified pursuant to the changes imposed by the order, on the timetable for events occurring during the course of the primary season.  (Perhaps that’s why the RPT entitled that attachment, “order on party conventions.”) There is also this, from SoS Andrade:

All dates, deadlines or requirements not specifically adjusted by the federal court order remain as required under state or federal law. Calendar of Important Dates for Candidates for the 2012 Primary and General Elections

Before I complete the discussion of the rules, I want to focus on the other attachment which came in the mail, the Presidential candidate applications.  According to Mr. Lewis, the applications “are the only documents used to certify these candidates place on our ballot.” So, we looked for something in the form which confirms that the candidate has established meeting “federal” “qualifications.” Here is the form submitted by Charles “Buddy” Roemer.

Notice that this contains an oath or affirmation from the applicant swearing s/he satisfies the Constitutional requirements for the job.

Now, look at the TDP form submitted by Barack Obama (which also appeared on the previous post.)

No such self-authentication. (Had you already noticed that the application form supplied by the TDP contains no such oath or affirmation?)

Either way, neither the RPT nor the TDP can be said to ‘certify’ a Presidential candidate has met federal qualifications when the only basis for that certification is the candidate’s self-authentication.

Anyway, that was just the beginning of our work. On the RPT form, in the upper left corner, I noticed this blurb: Prescribed by the Republican Party of Texas, Rule #38, 10/2011. So, the RPT ostensibly has a rule with respect to establishing a candidate for President is federally qualified? How did we miss that? We searched through the RPT rules (and the TDP rules) for anything containing the numbers “191” or “192,” the sections of TX statutes dealing with Presidential candidates, and found nothing. Now, we looked at the RPT’s rule 38. Here is the section of that rule relating to the candidates’ applications:

Rule No. 38 – National Convention Delegates and Alternates – Amended February 29, 2012
Section 1. Presidential Primary, Application of Rule

Section 2. Method of Qualifying as Presidential Candidate
a. Filing: Any person eligible to hold the office of President of the United States may qualify to participate as a Presidential candidate in the presidential primary by filing with the State Chairman, not later than 6:00 p.m. the second Monday in December of an odd-numbered year preceding the presidential primary, a signed and acknowledged application for his or her name to be placed on the Presidential Primary ballot, accompanied by a supporting petition signed by a minimum of 300 registered voters of the state from each of a minimum of fifteen (15) Congressional Districts, or the payment of a filing fee of $5,000.

So, yes, both the TDP and the RPT filed ‘rules’ with the SoS by deadlines created either in the statute or through the court order(s). But neither party preserved its entitlement to the ballot by filing a rule that spelled out how it would determine conclusively so as to certify to the Sos; both the Presidential and Vice Presidential candidates are federally qualified for the job.

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Freedom costs.


BALLOT ENTITLEMENT LAWS should DISQUALIFY PRESIDENT OBAMA in TEXAS

April 16, 2012

CRITICAL UPDATE 04.18.12, 17:59 EDT

at bottom of post

(CORRECTED 06.25.12)

©2012 jbjd

Under Texas law, by failing to file with Texas Secretary of State Hope Andrade the rules adopted by the Texas Democratic Party (“TDP”) to determine that the party’s nominees for President and Vice President are federally qualified for the job; Attorney Boyd Richie, Chair of the TDP, has forfeited the entitlement of the party to have the name of its nominees for those federal offices appear on the 2012 TX ballot. In fact, by failing to provide the candidate qualification rules of the Republican Party of Texas (“RPT”), Attorney Steve Munisteri, Chair of the RPT, has similarly forfeited the entitlement of his party’s nominees for President and Vice President to appear on the 2012 ballot, too.

It’s true; look at the law.

In TX, who determines whether the names of the nominees chosen by a political party, for President and Vice-President of the United States appear on the 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. §192.031 PARTY CANDIDATE’S ENTITLEMENT TO PLACE ON BALLOT

But who determines whether the nominee for President is Constitutionally eligible for the job?

The state chair of each political party holding a Presidential primary election shall certify the name of each Presidential candidate who qualifies for a place on the Presidential primary election ballot and deliver the certification to the Secretary of State. §191.003 NOTICE OF CANDIDATES TO SECRETARY OF STATE

How does the state chair determine whether the candidate has satisfied federal eligibility?

The state executive committee of each political party holding a Presidential primary election shall adopt the rules necessary to implement these laws. §191.008 IMPLEMENTATION BY PARTY

How does the SoS know that the party has adopted these rules necessary to verify the federal qualification of the  Presidential and Vice Presidential candidates submitted to that office?

For a political party to be entitled to have its nominees for President and Vice President of the United States placed on the general election ballot in an election year in which the party is holding a presidential primary election, the rules adopted under this section or the rules already in existence must be filed with the secretary of state not later than January 5 of the Presidential election year. Id.

Now, look at the facts.

In 2008, the SoS received from Mr. Richie the list of candidates the TDP wanted the state to print on the TX primary ballot. Here is Mr. Richie’s cover letter, and only the first page of that candidate submission.

(These 2008 records were obtained from the SoS in 2012 during a series of requests for public information, which was delayed due to court redistricting issues that in turn pushed back the date of the primary to May 29 and, therefore, the deadline for party submissions). (The mandatory retention schedule for such records is 2 years unless the records have been the subject of some kind of challenge. We have no idea why the SoS maintained these records for 4 years, but we are glad she did.)

In the cover letter, Mr. Richie explains he is sending this information to the SoS “in compliance with §172.028(a) of the Texas Election Code.” That section, STATE CHAIR’S CERTIFICATION OF NAMES FOR PLACEMENT ON GENERAL PRIMARY BALLOT, is found under TITLE 10, POLITICAL PARTIES, SUBTITLE B. PARTIES NOMINATING BY PRIMARY ELECTION, CHAPTER 172. PRIMARY ELECTIONS. Then, as you can see; in the page that followed, he listed together both the Presidential candidates and the down-ticket candidates, like U.S. Senator and U.S. Representative.

He shouldn’t have.

Title 10 only applies to party candidates chosen via a primary election. And even though the names of both the Presidential hopefuls and these down-ticket offices appear on the same primary ballot; the party nominees for U.S. Senate and U.S. Representative are chosen directly as the result of the primary contest, whereas the nominees for President and Vice President are not. Rather, these are chosen at the party’s Presidential nominating convention. (This is covered in Title 11, in §191.003.) This means, votes cast for the Presidential candidate during the party primary only count for the purpose of the assignment of pledged delegates who will then vote for that candidate at the party’s national convention.

So, is listing the Presidential candidates, covered under 191.003, on the same form as candidates covered by 172.028(a), as cited in Mr. Richie’s letter, just a legal technicality, in other words, a distinction without a difference? Hardly. Here is the text of 172.028(a): “Except as provided…the state chair shall certify in writing for placement on the general primary election ballot the name of each candidate who files with the chair an application…” In other words, to get on the ballot under this section, a candidate need only submit an application. And no law requires the party to adopt rules to carry out the laws in this section. On the other hand, 191.003, printed above, requires the chair to submit only the names of candidates federally qualified for the job. And 191.008 requires the party to adopt rules to ensure the section’s implementation.

Naturally, just because Mr. Richie wrote down the wrong law didn’t mean, he hadn’t carried out the mandate of the right law by verifying the candidates he submitted to the SoS for the 2008 Presidential preference primary ballot were federally qualified for the job. But we know he didn’t verify whether the Presidential nominee wannabes were federally qualified for the job. We also know that Mr. Munisteri, his counterpart in the RPT, didn’t verify Republican Presidential candidates were federally qualified for the job, too. Because we looked it up. That is, we searched the internal rules of the respective parties for references to 191.003.

TDP Rules, 2006-2008: http://txdems.3cdn.net/b365cb3e72bc521333_pom6vdrl3.pdf

TDP Rules, 2012: http://www.txdemocrats.org/wp-content/uploads/2012/2010-2012-TDP-Rules.pdf

RPT Rules, 2008: http://www.1888932-2946.ws/TexasGOP/E-ContentStrategy/userfiles/2008_General_Rules.pdf

RPT Rules, 2011 (Amended for 2012): http://s3.amazonaws.com/texasgop_pre/assets/original/2011RPTRules_Amended.pdf

Lo and behold, we found no such rules. For either party. For the years 2008 – 2012. This means, neither party could possibly have submitted the rules required under 191.003 to the SoS. And, under 192.031, this means neither party is entitled to have the names of its Presidential and Vice Presidential nominees on the general election ballot. It’s as simple as that.

Of course, just because both the TDP and the RPT have lost entitlement to have the names of their nominees for President and Vice President on the general election ballot doesn’t mean that SoS Andrade cannot exercise her discretion to place those names on that ballot or, on the primary ballot, anyway. But she should not. And here’s why.

Notwithstanding neither party promulgated rules as required by law to preserve entitlement for the names of their Presidential and Vice Presidential candidates to appear on the ballot; this does not mean, they didn’t somehow verify their candidates had satisfied federal qualifications for the job. So we submitted a request for the production of documents which were the basis for their ballot certification; to the Chairs of both parties, under the TX Public Information Act.

You might recall we attempted to retrieve documents from Mr. Richie and the TDP in 2010. But notwithstanding under the law the documents requested were pubic records; and the parties, as holders of these records, were public officials; those 2010 requests were ignored. TEXAS TWO-STEP. Maybe it was because we hadn’t spelled out in our request the legal framework which supported our rights to the documents requested. In other words, we hadn’t let him know, we know the law. So, this time, we did. (Citizens shouldn’t have to be lawyers to get their public officials to do their jobs, whether these are unelected officers of a private political club merely fulfilling a public function. Especially when those officials are lawyers, too. Id.) 1) §191.003.  NOTICE OF CANDIDATES TO SECRETARY OF STATE. This law established the Chair had a duty to certify the names of the party candidates to the SoS. 2) §192.031.  PARTY CANDIDATE’S ENTITLEMENT TO PLACE ON BALLOT. This restricts entitlement to be on the ballot to only those Presidential and Vice Presidential candidates meeting federal qualifications for the job. 3) §141.035.  APPLICATION AS PUBLIC INFORMATION. This establishes a candidate’s application for a place on the ballot is a public record on filing. 4) §161.004.  PARTY DOCUMENT AS PUBLIC INFORMATION. This states that any document required to be filed by the party is public information. 5. §161.009.  PARTY OFFICER SUBJECT TO MANDAMUS.  This spells out that when a party officer has a duty to act under the election code; the performance of that duty is enforceable by writ of mandamus in the same manner as if the party officer were a public officer.

Here is the Public Information request letter sent to the RPT.
How did the RPT respond to the request? Attorney Munisteri ignored it. (Kelly has already filed a complaint with AG Abbott.)

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?)

which consisted of nothing more than Mr. Obama’s ballot application. (Under §1.012, PUBLIC INSPECTION OF ELECTION RECORDS, you can view this public record by visiting the offices of the TDP.)

In other words, Mr. Richie put the name of Barack Obama on the TX ballot just because he asked him to. As if he was a down-ticket candidate under 172.028(a).

Wherefore, SoS Andrade should exercise her discretionary authority to keep the RPT candidates for President and Vice President off the ballot; not just because they ignored the law requiring rules adopted for candidate eligibility to be filed with her office but also because they ignored the law requiring production of records used for public elections. She should exercise her discretion to keep the TDP candidates off the ballot because they ignored the law on rules and then swore to the SoS, having filed an application to get on the ballot, the candidate was thereby federally qualified for the job

When it comes to exercising her discretion as to whether to allow the Presidential candidates of either of these parties, Republican or Democrat, to appear on the TX ballot; SoS Andrade should come down on the side of the citizens of Texas, and not the political parties.

(H/T to “jbjd” patron kjcanon for her Herculean assistance researching, editing, and thinking out loud.)

CRITICAL UPDATE 04.18.12, 17:59 EDT: I have just been informed of a change of status with regard to the documents requested from the RPT. The post which will print shortly will explain everything. jbjd

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Freedom costs.


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