There are occasional election disputes in the great state of Texas in which, for one or many reasons, a candidate believes they have been cheated and the election in question was not valid. I know of no Texas case in which the issue of whether the voters have been cheated or denied their collective rights has been decided, probably because Texas courts will not grant standing for a generalized grievance against governmental conduct. However, in the Texas Constitution, Article I, Section 2 it is clearly stated: "All political power is inherent in the people … they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient." It appears this inalienable right is negated by assuring there are no effective means for the people to exercise their right.
Further down, Article I, Section 29 provides that " … everything in this 'Bill of Rights' is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void." By recognizing the people's inalienable right to to alter, reform or abolish their government as being above the government's general powers, the Texas Constitution implies a requirement for a legal theory of voter rights such that the state and local government must at all times maintain and respect an effective means for the people to exercise their inalienable right to alter, reform or abolish their government.
Texas courts have recognized that "the right to vote is fundamental, as it preserves all other rights," but they qualify this by maintaining that the state has a right to regulate the election process, impose voter qualifications, and to regulate access to the franchise. The courts have deferred to the Legislature as much as possible with the attitude that "So long as their choice is reasonable and neutral, it is free from judicial second-guessing." [1] The prevailing judicial doctrine ignores or justifies the many devices and subterfuges employed by political parties, governmental bodies, – even private corporations – and focuses on the question of whether the outcome of an election was "correct." This is really posturing by the courts so as to appear reasonable and fair. The effect of the Texas court doctrine is to negate the voters' power by failing to establish any real standard for meaningful elections as the Legislature has consistently acted to thwart the voters' power and reduce effective electoral remedies. Thus the Legislature entrenches itself and its sponsoring special interests behind a byzantine Election Code and is protected by the courts when it deprives the voters of meaningful recourse.
The case of Pressley v. Cosar is described by BlackBox Voting. In this case, the 201st District Court and the 3rd District Texas Court of Appeals demonstrate the disregard of voter interests in the Texas judicial system. These courts ignored local government relocating polling places between a general election and runoff, and "waiving" election requirements. The Texas Secretary of State is also allowed to reinterpret or waive election requirements, both in writing and verbally over the phone. Besides this selective legality, ordinary words are redefined such that a "Ballot Image" becomes a "cast vote record" — a list of ballot choices as reported by an electronic voting machine which uses secret computer code and which can be hacked without leaving any evidence. To add injury to insult, these courts imposed exorbitant sanctions and penalties against the plaintiff and her attorney, compounding the oppression of a corrupt election system. Texas courts then deliver the coup de grace by deciding the issue is moot because the case has taken so long the term of office has expired. (note)
Texas courts claim that their authority is conferred solely by legislated statutes and there is no other basis for jurisdiction. The Texas Constitution, Article 6, Section 2(c) states: "The privilege of free suffrage shall be protected by laws regulating elections and prohibiting under adequate penalties all undue influence in elections from power, bribery, tumult, or other improper practice." But Texas courts are not concerned with whether election laws protect free suffrage. Instead of requiring the state to prove that election laws are protective of free suffrage, the courts require a voter to prove they have suffered some individualized harm. By failing to value the peoples' right to alter, reform, or abolish, and having no standards to protect that right through elections, Texas courts have effectively placed the Legislature and election officials above the law. They are the ones best positioned and most likely to exercise undue influence from power or improper practice, but they are indulged or ignored while the courts pretend they can decide whether an election result was correct. [2]
It seems rather obvious that many election laws are motivated by partisan desires to limit voting and control election outcomes and not by any compelling state interest or expression of the public will. [3] After years of growing cynicism and declining voter participation, we know that the 2016 election was marked by voter registration errors, voting machine errors, and vote miscounts. Now we have the spectacle of the Democratic party linking elections to Russian espionage and the Republican party pretense of voter fraud and the crosscheck stratagem. Perhaps the D party goal it to give the deep state control over counting votes, while the R party's goal is clearly disenfranchisement. One may well ask, what is the compelling state interest in voter ID laws and false accusations when over a twelve year period there have been only 60 voter fraud convictions in Texas out of more than 65 million votes cast? Many of these cases are arguably simple misunderstandings about eligibility and do not warrant the vicious prosecutions and onerous sentences being imposed. None have been shown to have altered an election outcome. It is clear the real purpose is to disenfranchise voters and frighten people away from voting. Would this voter repression exist if the state had to prove in court that these laws are necessary to protect free suffrage?
Besides supporting legislative attacks against voters, the courts support debilitating restrictions against small political parties and independents. Elections can be controlled by limiting the voters and also by limiting the candidates. The two establishment parties are given a special public-private status by the courts. On the one hand, they are private when they wish to manage internal participation, while on the other hand, they are public when they wish to prevent competition or restrict ballot access of third party or independent candidates. The double standard is clear in these two U.S. Supreme Court decisions. In Tashjian v. Repubican Party of Connecticut the right of free association was sacrosanct when the R party wanted to avoid closed primary restrictions, but in American Party of Texas v. White the right of free association was terminated by voting in a closed primary system. The judicial sleight of hand is to equate voting in a party (primary) election with voting in a public (general) election. In the later case of Clingman v. Beaver the court supported a state interest in "preserving the political parties as viable and identifiable interest groups" which supersedes the right of free association and incorporates the duopoly parties as instruments of the ruling class.
The people of Texas have long understood that Texas government serves the interests of the few instead of the public interest. Cities are controlled by developers, the legislature is controlled by corporations, and state and local agencies are captured by special interests. This usurpation of government by the people is founded upon the manipulation of elections. Whether manipulation is by a duopoly over candidates. [4] limitation of polling places, gerrymandering, voter ID laws, or fraudulent count of ballots, the Texas courts have supported the degradation of democracy. Short of open rebellion, the one means of control of government by the people is through the election system. The Texas courts have created a veil of legality over corruption and manipulation of Texas elections which protects a ruling class and embodies disrespect of voters and the public.
We often hear politicians say that government should be more businesslike. Yet what business hides information from its executive, subverts the executive's decisions, embezzles resources, and denies any means of action to its executive? The claim that voters control the government is hollow and meaningless when there is no clear standard or meaningful requirements for the electoral decision-making process. The Texas courts have sanctioned and protected abuse of elections and the public by the Legislature and local government. The people of Texas need an effective and enforceable standard of whether election laws protect the inalienable rights of the people and free suffrage, rather than relying on the partisan and special interest manipulations of ruling class politicians and the coy dereliction of duty by the Texas courts.
The Green Party is committed to electoral system reform. Among other proposals, the Green Party supports publicly-owned, open source voting equipment with verifiable paper ballots, automatic recounts, instant run-off voting, proportional representation voting systems, full public financing of elections, eliminating laws and rules that discriminate against smaller parties and independents, guarantee universal voter registration, a binding "None of the Above" option, and the proposal that we make election day a holiday. The Green Party electoral proposals are characterized by respect for voters and a desire for genuine and effective democracy.
Judges are elected in Texas. Judicial candidates usually try to appear impartial and avoid taking a stand on issues or legal matters, but voters may be able to determine whether the decisions of the court were truly respectful of the voters, and cast their vote for democracy
Thank you.
(1) See Andrade v. NAACP of Austin
(2) In the book, The Dictator's Handbook: Why Bad Behavior is Almost Always Good Politics (PublicAffairs Books) the authors argue that politicians will always seek to limit and control the group they depend upon to maintain power, i.e. the voters. They are clear that democracy with broad participation produces the best society because fair and beneficial policies are required for electoral success. In Texas, we see that special interests control the duopoly parties through campaign finance and the primary system. The duopoly parties control the Legislature through restrictions on third parties, restrictions on voters, gerrymandering, and other means of diminishing the effectiveness of elections. An ineffective electoral system is essential to maintaining this ruling class control.
(3) A summary of historical partisan efforts to limit voting by Blacks is found at African Americans and Politics
(4) The Democratic and Republican parties have a problem with legitimacy, see Democrats and the Crisis of Legitimacy
(note) The Texas Supreme Court opinion in Pressley v. Casar was issued January 25, 2019, and states: "We conclude that the appeal is moot to the extent it challenges the election results but that the award of sanctions was an abuse of discretion."
