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:

TDP Rules, 2012:

RPT Rules, 2008:

RPT Rules, 2011 (Amended for 2012):

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


Freedom costs.

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