Second Court of Appeals Justice Brian Walker, who is running for a seat on the state’s supreme court, won’t be able to get his opponent, incumbent Justice John Devine, removed from the ballot the Texas Supreme Court has determined.
In a ruling issued Thursday, the justices explained that the court was denying the petition for writ of mandamus Walker filed Jan. 5 both because he waited too long to bring his challenge and because precedent mandates candidates be given an opportunity to remedy the alleged defect.
“As we have long and consistently held, ‘[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 in its per curiam opinion, quoting its 2006 holding in In re Francis.
Justice Devine did not participate in Thursday’s decision.
Justice Walker had alleged that Justice 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.”
The Texas Supreme Court laid out the timeline of events in this case in its eight-page opinion, explaining Justice Walker lodged his challenge with Matt Rinaldi, chairman of the Texas Republican party, six weeks after Justice Devine filed his application for the ballot.
Justice Walker alleged that 28 of the signatures Justice Devine submitted were invalid for a variety of reasons, including 18 that he said were invalid because the signers had previously signed his own petition.
Rinaldi didn’t respond, prompting Justice Walker to file his petition with the Texas Supreme Court, asking that the court compel Rinaldi to remove Justice Devine from the March primary ballot.
“Walker — the only person who could have known before the filing deadline about any problems with the 18 signatures that apparently were on both candidates’ petitions — filed his application on December 4 and then waited until December 27 — weeks after the deadline had passed — before alerting anyone to the purported problem,” the court wrote. “Walker argues that he could not challenge Devine’s petition while Devine retained the ability to amend his petition. The opposite is true.”
The court wrote that Justice Walker was “obligated” to lodge his challenge as early as possible.
“A timely challenge would advance rather than impede ballot access because it would alert all parties to any deficiencies and enable a candidate to correct them if he could,” the court wrote. “But when a party slumbers on his rights — or, indeed, does not slumber but carefully lies in wait — these principles are not advanced but impaired.”
Thursday’s ruling is in line with two others the court recently handed down that allowed judicial candidates to be on the ballot and rejected challenges to limit the choices of voters.
Walker is represented by Erica Opiela of Austin.
Devine is represented by John Scott, Scott Keller, Kyle Hawkins, Andrew Davis, William Thompson and Joshua P. Morrow of Lehotsky Keller Cohn.
The case number is 24-0016.