Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
May 23, 1980
MARK WHITE
Attorney General
SusanGurley McBee Opinion No. Rt+181
Chairman
Iiais Committee on Elections Rer Whether persons who voted in
House of Representatives the Democratic Q Republic
Austin, Texas 78769 primaries may sign a petition for
an independent candidate fm
prcsi&nt.
Dear Ma I&Bee:
Ym lmve asked whether persons wfm wootedin the Democratic or
Republimn general primary elections, held ai May 3, 1980, may sign a
petition for sn independent candihte for president to appear at the general
election ballot. Article lLOlb of the Election Code establishes a procedure
whereby independent candidates fee president may appear UI that ballot. A
person seeking to become en independent candidate for president must file
with the Secretary of State an spplication which includes a petition signed
by a certain mmber of qualified voters. Election Code article lLOlb
establishes in s&division 3 the following requirements for persons signing
the petition:
A petition may not be circulated for signatures
until after the date of the general primary election in
that election vear. end anv &mature obtained on or
before that daie is void -A toter who voted in the
general primary of eny political party that held a
presidential primary that year is ineligible to sign the
petition of en mdependent candidate for president.
The followinc statement shall eooear at the head of
each page of-a petition: “I cc& that I did not vote
this year in the general primary election of sly
political party that held a plesldential primary.”
(Emphasisadded).
The answer to your question depends at whether persons who voted in
the Democratic and Republican primaries this year are disqualified try the
underlined language of article lLOlb of the Election Code from signing
petitions for independents. There is no dispute as to whether the two
political parties held general primary elections this year. They sre required
to dDso by statute. -See Election Code, arts. 13.02, 13.03.
p. 575
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Susan Gurley &Bee - Page Two (MW-181)
We must next inquire into the proper construction of the lenguage “presidential
primary” as it appears in article ll.Olb of the Election Code and determine whether
each party held a presidential primary ss that term ls used in the statute. The
Republican Party held a presidential preference primary et which the voters expressed
their preferences ss to the nominee for president. Rules of the Republican Party of
Texas, Rule No. 38a. The vote in the primary determines the entitlement of each
candidate to delegates to the nntional nominating convention, Id However, delegates
to the national convention will be elected at the party’s state &?vention. Rules of the
Republican Party of Texas, Rule 38a; Rlec. Code, art. 13.58. The Democratic Party
held e non-bindhg presidential prefaenee referendum es part of its general primary.
Voters at the primary could express their preferences as to the nominee for president,
but delegates to the national convention may CPmay not be chosen ln accordance with
those preferences. See Rules of the Democratic Party of Texas, art. V.B. 3(e). The
process of electirg megates began at the precinct convention, in which only persons
who roted in the Democratic Primary could participate. Rules of the Democratic
Party of Texas, ah 1 V-A., B., Texas Delegate Selection Plan for 1980, Ill A. See
Cousim v. Wig&a, 4l9 US. 477 0975) for authority to hold presidential primary-
party rule
The Election Code &es not define the term presidential primary. Cf Acts 1975,
64th Leg., ch. 261 et 630 (temporary law requiring political parties to holdpresidential
primary elections in I9761 Although other interpretations hve relied on expired
statutes and defeated bills to determine the definition of presidential primary, we do
not believe these offer sny assistance in determining legislative intent. The expired
bill presents a &tailed, complex definition of presidential primary which k
inapplicable to either the recent Democratic cr Republican prims&s. The defeated
bills p-sent I’D reliable indication of legislative intent. Article 13.01of the Election
Code defines “primary election” as used in chapter 13 of the Code:
The term “primary election,” es used in this chapter [arts.
13.01-13.591, meens sn election held by the members of an
organized political party for the purpose of nominating the
candi&&es of such party to be voted for at a general or special
election, or to nominate the county executive officers of a
party.
This definition does not techniaelly apply to a presidential primary, because candidates
for president snd viaz president are not nominated et a primary, but at nstional
conventions of the political parties. Moreover, this definition is expressly made
applicable only to chapter 13, not chapter ll of the Election Code. Thus, we do not
believe the article 1302 of the Election Code definition of primary election is helpful
ln determiw the meanirrgof “presidential primary” as the term is used in article
ll.olb of the Election code.
Since the term presidential primary is not &fined by the legislature, it is to be
construed eccordirg to common usage. Code Construction Act, V.T.C.S. art. 5429b-2,
S2.01. In interpreting this language we may also consider the object sought to be
p. 576
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Susan Gurley M&es - Page Three (MW-181)
attained, the elrcumstances under which the statute was enacted, the legislative
history, common law or former statutory provisions and administrative constructions
of the statute. 6 S3.03. The common usage is e particularly appropriate standard
here, since the statute requires any person signing e petition to certify that ha did not
vote in the primary election of a party which held a presidsntial primary. We do not
believe the Legislature intended to require the voters who must sign this certification
to make a technical determination of the meaning of presidential primary.
We believe the term presidential primary is commonIy mderstood to include the
elections held by both the Texas Democratic and Republican Parties on May 3, 1980.
An article in Congressional QmrterIy categorized presidential primaries of thirty-five
states eccordirg to their binds Q txm-bind~ nature. “Attention shifts to First
Presidential Primaries,” 38 Congressional Quarter 261 09801 One of the five types
of presidential primary was the “lnlon-bindug advisory) preference vote with
delegates selected outsick the primary.” I& at 285. A later article in the same jmnel
refers to the Democratic contest in Texas as a non-bindw primary. R. Cook, “Carter,
Reagan Are Strong Favorites in Texas,” 38 Congressional Quarterly 1012(1980). See
& 26 U.S.C.A. S9032ta)(presi&ntial primary election defined to include elections
delegates to a mtional nomim~ convwtiai a m election for expression of a
preference for a candidate). It is almost inconceivable that the common understanding
of the term presidential primary would depend on whether the vote determined the
allocation of delegates to be selg?ted at a convention or merely expressed the party’s
preference for a nominee.
By read@ presidential primary according to the common understandingof that
term, we give article ll.Olb of the Election Code a construction that is consistent with
the standards approved ty the Supreme Court for such statutes. Prior to the
enactment of article ll.Olb of tha Election Code, Texas provided no means of access to
the ballot for independent candidates for president and vice president. A predecessor
of article 13.50 of the Election Code did provide a means of access to the ballot for
independents seeking other offices. Acts 1963, 58th Leg., ch. 424, S104at 1097. This
provision was challenged in American Party of Texas v. White, 415 U.S. 767 (1974).
Independent candidates had to s&mit an application signed by qualified voters who had
not voted at either the general primary or the runoff primary of any party which had
nominated at either primary a mndidate for the office sought. The Supreme Court
found this requirement constitutionaL 415 U.S. at 789-90. In another case decided one
day earlier, the Supreme Court stated at greater length its views with respect to ballot
access by independent candi&tes:
[T]he State is free to assure itself that the candidate is a
serious amtender, truly independent, and with a satisfactory
level of community support.
Storer 415 U.S. 724, 746 (1914).
American Party of Texas v. White, e, also concerned the requirements for
small parties to get on the ballot. It concluded that “the State may determine that it
p. 577
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Susan Gurley &Bee - PsgePour WW-181)
is essential to the integrity of the nominatix process to confine voters to supporting
one party and its candidates in the course of the same nomimtiw process.” 415 U.S.
et 786.
Although the Texas statutes on ballot access by independents were held
constitutional as applied to candidates for state office, they were deficient in that
they provided no means for independentcandidates for president and vice president to
get on the ballot. Eugene McCarthy successfully challenged thess provisions in 1976.
McCarthy v. Brisooe, 436F. Slpp. 816 (W. D. Tex., 19761,aFd 553 P. 2d RIO5(5th Cir.
1977). The legislature responded to the decision in therearthy ease by enact@
Senate Bill ll50 to provi& a procedure for independent oandrdrtes far president md
vice president to get UI the ballot. See Bill Analysis for Senate Bill ll56 prepared I-
Senate Committee on Elections, filed~L&sletive Reference Library.
Article ll.Olb of the Election Code was thus enacted in respawe to the MccerttR_
decision md with knowledge of the Supreme Court’s ruling in Storer v. Brown,
uxl American Party of Texas v. White, s re. See Rl Paso v. Carroll, loftsw. . z-2
(Ta Civ. apP. - Rl Paso 1937, writ re?k--
. , nzsumption that kgklatiat was m
with kmrkdge of wtmt the courts have held to be the legislatue~ power). 7lvr
legislature thus was aware that it could enact a constitutional statute which required
independents to show that they bed a satisfactory level of community support and
whi& mught to preserve party integrity. The legislature also had before it as a model
article 13.50 of the Election Code which related to ballot access by rron-partisanor
independent candidates for offices other than president, vice president and presidential
elector. Article 13.50 of the Election Code provided that “no person who has voted at
either the general primary election or the runoff primary election of any party shall
sign an application in favor of anyone for en office for which a nomination was made
et either such primary election.”
Legislative history indicates that the bill’s sponsor wished to exercise some
degree of control over access to the ballot. Tape of public hearing, April 20, 1977,
Senate State Affairs Committee, filed in Senate Staff Services Office.
We believe the legislature’s intent to reasonably control access totheballotby
independents, and the policies enumerated by the Supreme Court which justify and
permit its doing so, can bevt be served by utilization of the commcn mean- of
“presidential primary” in article ll.Olb of the Election Code rather than e narrow,
technical construction of those words based on a statute which is inapplicable an its
face. We believe the presidentialpreference votes included in the general primaries of
both parties constitute presidential primaries for purposes of this statute. Persons who
voted in the primary of either party indicated their allegiance to it and revealed that
they did not provide truly independent community slqpcrt fcr an independent
candidte.
We believe that the differences in the primaries held by the two parties are too
slight to justify treat@ them differently, particularly when examined in light of the
policies underlying article ll.Olb of the Election Code. Participation in the Democratic
p. 578
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Susan Gurle-yMeBee - Page Five (MW-181)
primary was a prerequisite to participation in the process of choosing delegates to the
national convention. Cf. Thorne v. Jones, 57 N.W.2d 40 (Mich. 1953)(caucus is
synonymous with prima$. Even the “bindi@ Republican primary is bindirg only to a
degree. Republican delegates to the national convention are bcund for three ballots
unless released or mless the candidate receives less than 20 percent of the national
convention vote on the second ballot. R. Cook, “Carter, Reagan are strong favorites in
Texas,” 38 Congressional Qwrrterly 1012 (1980). Neither primary actually elected
anybody, since &legates to the nhonel convention will be chosen et the state
convention. Rules of the Republican Party, Rule 38e; Election Code art. 13.56. We
believe the term npresidantialprimary” as it appears in article lLOlb of the Election
Code should be defii to include a non-binding presidential preference primary.
This dsfiiion moreover renders article ll.Olb of the Election Code consistent
with artide l3.50 of the Election Code on ballot access by other independents Article
13.50 of the Blectioo Code excludes from signing a petition for an independentmyate
who twotedin the gmeml primary cr run-off primary of a party which mmimted e
candidate for that office. It dws not matter whether the voter actually participated
in the Se;ectim of that eaadicinte. In fact, by participating only in the run-off primary
he -es himself fmm signing an independent’spetition for any office far which e
nomiratirx; wws me& io the general primary. Although he did not cast his mote, he
nonetheless &s aligned himself with a party that made a nomination for that office.
The Secretary of State has issued an opinion construhg the term “presidential
primary” as it appears in article ll.Olb of the Election Code to mean “an election held
for the purpose of selecting a portion of the delegates to represent the state at the
national conventions.” See Election Law Interpretation No. GWS-5. The opinion
determines that the Rep=& Party held such a primary, while the Democratic Party
did mt, and mncludes that persons who voted in the Democratic primary may sign
petitions to place independentcandi&tes for president and vice president on the ballot
in the general election.
The Secretary of State is respcnsible for interpreting the election laws. Election
Code art. 1.03. Administrative constructions are entitled to weight, parte
Ex
510S.W. 2d 913 (Tex. 19741,but they will be disregarded when contrary to the statute.
Firestone ‘Tire and Rubber Co. v. Bullock, 573 S.W. ‘Zd498 (Tex. 1978). This office has
in the past reviewed interpretations of the Election Code made by the Secretary of
State md m.s3e its own cktermination as to the correct interpretation. See eg.,
Attorney General Opinions MW-178,MW-175,MW-166(1980);M-284 (19682
AU omvisions of a code relatim to the same matter will be harmonized and siven
effect. District Trustees of D&&t No. 46 and Freestone County v. Trust& of
Freestone County, 186 S.W.2d 378 (Tex. Civ. App. - Waco 1945 no writ). The
Secretary’s definition of “presidential primary” for purposes of article B.Olb of the
Election~Code is inconsistent with article 13.58 of the Election Code as well as with
the rules of the Republican party. In the latter provision, the Legislature assumesthat
political parties will elect their delegates to the national convention et the state
convention. See also Rules of the Republican Party of Texas, Rule 38a In enacting
p. 579
SusanGurlay M&as - Page Six (RW-lSl)
article ll.9lb of the Rlrtion Code it would not have made the contrary assumptionthat
the parties elected delegates at presidential primaries. If the Secretary’s definition of
presidential primary f.e., an election to select delegates to a mtionel convention! is
aorreet, then neither party held a presidential primary this year. In fact, no politmal
party could hold a presidential primary as latg as they continue to elect all delegates
at the state convention. In enacting a statute, it is presumed that the entire statute is
intended to be effective and that e just end reasonable result is intended. Code
Construction Act, V.T.C.S., art. 3429~2, S3.9L The Secrstary!s defiition of
presidential primary renders article ll.tllb of tha Electian Coda mreasomble and
ineffective in part. Therefore we decline to follow it.
In au opinion, therefore, the non-bixtiq presidential preference vote held by
the Democratic Party and the prasidpntialpreference primary held ty tha Republican
Party in 1980 both constitute presidential primaries fcr pmpasas of article B.9lb of the
Election Code. Cunsequently, persollr wtw voted in aithw primary may mt sign
petitions for sn indepandent csndidate far praai&nt to appar m tha @nerd election
ballot.
SUMMARY
Persons who voted in the Democratic or Republican general
primary election may not sign e peition for m independent
candidate for president to appaaron the general election ballot.
X~2&
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINIONCOMMlTTEE
C. Robert Heath, Chairman
Jon Bible
SusanGarrison
Rick Gilpin
p. 580
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