In two separate cases brought by judicial candidates, the Texas Supreme Court decided Wednesday that case law upholding the importance of giving candidates access to the ballot trumped the challenges trying to limit who voters get to choose from on Election Day.
In one of two per curiam opinions issued Wednesday by eight of the justices (Justice John Devine did not participate; more on that below.), the court determined that current Harris County District Judge Brittanye Morris had been wrongly kicked off the ballot by Mike Doyle, chairman of the Harris County Democratic Party, after she mistakenly put her driver’s license number in a field of a disclosure form where her state bar number should have gone. In the other case, the court rejected First Court of Appeals Justice Peter Kelly’s argument that his challenger, Amber Michele Boyd-Cora, should be kicked off the ballot for her alleged failure to accurately disclose certain information in accordance with a new law should mandate her removal from the ballot.
Both of those challenges involved the newly-enacted H.B. 2384, which requires that those running for a judicial seat disclose their bar number, any sanctions or censures, certain criminal convictions and descriptions of their legal practice over the part five years, including details about specializations, courtroom experience, the filing of appellate briefs and oral arguments.
The justices wrote that when an election code provision doesn’t spell out the consequence for a candidate’s failure to comply with a ballot application requirement, a presumption against removal from the ballot applies.
“This presumption arises because ‘[t]he public interest is best served when public offices are decided by fair and vigorous elections, not technicalities leading to default,’” the court wrote, citing its 2006 ruling in In re Francis.
The statute at issue here, the court explained, doesn’t empower a party chair to exclude a prospective candidate from the ballot.
“Rather, Section 141.0311 requires the judicial application form to notify candidates ‘that knowingly providing false information on the application, in addition to other penalties prescribed by law, constitutes professional misconduct subject to public sanctions or censure by the State Commission on Judicial Conduct or the state bar, as applicable,’” the opinion reads. “The Legislature may have considered these penalties sufficient incentive for applicants to comply with the new judicial disclosure requirements in a sworn application.”
The purpose of the statute is to educate voters about a candidate’s qualifications, the justices wrote, “but it does not add to the constitutional and statutory qualifications to hold office.”
“Voters certainly may consider failures and errors in disclosure in evaluating whether a candidate is qualified to hold judicial office,” the opinion reads. “The statute, however, does not impose a barrier to a candidate’s access to the ballot based on deficiencies in these disclosures.”
Petition Signature Challenges
There are at least two other challenges aimed at removing judicial candidates from the ballot involving the Texas Election Code requirement that judicial candidates must file with their application a nominating petition containing at least 250 valid signatures of registered voters.
Harris County District Judge Mike Engelhart sued chairman Doyle Jan. 1 in Harris County district court alleging he should have removed his challenger, Erica Hughes, from the primary ballot based on allegedly illegitimate signatures Hughes included on the petition she submitted with her application for office.
Before the suit was filed, Doyle issued a 17-page final determination after reviewing Engelhart’s challenge, writing that it was “unclear” to him based on case law whether he or the courts should make a determination on the issue of the legitimacy of the signatures.
“Nevertheless, although I do not believe I have a statutory duty to conduct a full-blown examination into the veracity of the petition, I do believe it is within my responsibility to conduct a limited review of the race of the petition for conclusive obvious facial indicia of invalidity,” he wrote. “I have done so. The results, though troubling, do not arise to a level I believe compel (or even authorize) me to reject the petition of Judge Hughes.”
Hughes has denied in court filings that any of the signatures are forged.
Englehart nonsuited his district court suit Jan. 3, giving the court notice that he may pursue his challenge via a writ of mandamus in the appellate court.
That challenge came Jan. 8 and landed at the Fourteenth Court of Appeals. The very next day, a three-justice panel issued a brief per curiam opinion declining to give Engelhart the relief he sought.
“Because there are contested issues of fact that must be resolved after a hearing on the merits, relator has not established that he is entitled to mandamus relief,” the panel held.
In the other challenge based on petition signatures, current Second Court of Appeals Justice Brian Walker is alleging that current Texas Supreme Court Justice John Devine failed to comply with the Texas Election Code’s requirement that he file a petition containing at least 50 valid signatures from registered voters in each of the state’s 14 court of appeals districts.
“Justice Devine’s petition is required by [Section 172.021(g)] to contain a minimum of 50 valid signatures from each court of appeals district,” Justice Walker argued in the petition for writ of mandamus he filed Jan. 5 “Relator, Justice Brian Walker will show that, at best, Devine has 45 signatures from the Eighth Court of Appeals District.”
Justice Devine responded on Jan. 8 telling the court “if any remedy is required, it should allow Justice Devine to cure the alleged technical defects — as he is well-prepared to do.”
“Removing Justice Devine from the ballot in these circumstances would be fundamentally unfair,” he argued. “That remedy would prevent millions of Texans from again voting for Justice Devine based on alleged technical defects in a few of the signatures on his ballot petition (i.e., that a few signers had previously signed Relator’s petition). These purported defects arose through no fault of Justice Devine’s, they prejudice no one, and they are being raised now in a purely opportunistic and entirely untimely fashion.”
As of Thursday afternoon, the Texas Supreme Court had not issued a ruling in that case.
The cases are In re Peter Kelly, case number 24-0011; In re Brittanye Morris, case number 24-0007; In re Michael C. Engelhart, case number 14-24-00015-CV; and In re Hon. Brian Walker, case number 24-0016.