The Texas Supreme Court ruled years ago that Texas’ election laws “jealously guard the voters’ power” by compelling state political parties to place otherwise qualified candidates on the ballot, regardless of their adherence to party rules or loyalty tests.
The state’s high court has repeatedly upheld this ruling, remarking in 1958 with some frustration that “no other holding would comport with sound public policy.”
Until the late 1800s, political parties were private entities who picked candidates however they wanted. That changed during the Progressive Era that had an emphasis on transparent government and states began passing laws giving themselves more oversight of primaries, even as the parties still ran them.
In 1916, county attorneys from Gilmer and Corpus Christi asked the Texas attorney general to clarify the state’s new election laws. The right to decide who was on the ballot was “inherent in the sovereign voters of such a political party,” not the party itself, as stated by assistant Attorney General W.A. Keeling.
In 1926, Dolph Briscoe Sr. sued the Uvalde County Democratic executive committee over a rule prohibiting people from voting in the Democratic primary if they had previously voted for a Republican candidate.
Both the Democrat and Republican parties in Texas have tested the ruling repeatedly in past years – and it is being tested again.
This past January, amid the House speaker’s race, the State Republican Executive Committee (SREC), which is the governing body of the Republican Party of Texas, adopted a resolution suggesting it would go against the party platform to vote for Rep. Dustin Burrows which was a potential first strike towards censure.
Under pressure, the Texas Republican County Chairmen’s Association asked a law firm to look into whether members could be barred from the ballot after a censure. The answer was No.
According to a 10-page memo, “Although the Election Code calls on political parties to adopt internal rules, nothing permits, much less expressly allows a political party to impose additional restrictions to ballot access or reject the applications the Election Code commands it ‘shall accept.” Any legal challenge would be a “steep uphill battle.”
The State Republican executive committee met Saturday to decide whether to censure lawmakers they consider insufficiently loyal. Under party rules passed last year, these censures could bar candidates from the Republican primary ballot for two years.
But in Texas, the courts have been consistent in deciding that party leadership cannot enforce its own purity tests to remove candidates from the primary ballot.
In 2016, the Texas GOP approved new rules allowing local party leaders to censure elected officials for three violations of the party platform.
The SREC met in 2024 after Abbott helped unseat most of the GOP representatives who defied him wanting to add more grit to the censure threat. A rule was drafted allowing censured members to be barred from the primary ballot for two years. The threat of ballot removal has made relationships between the party and lawmakers worse.
According to law professor Michael King at Northwestern university, “Parties are supposed to organize dissent against the government and run candidates against incumbents and really think about what the government ought to be doing. The government can’t just say, no party can be against abortion. That wouldn’t be allowed and would be unconstitutional under the First Amendment. But you can regulate and force, for instance, political parties to run primary elections to decide their nominations.”
Some county GOP parties have condemned the censure and ballot access blocking effort as undemocratic.
House speaker Justin Burrows wrote on Facebook, “Such a concentration of authority in a small, centralized body resembles not the open democracy envisioned by our Founders but instead echoes the undemocratic practices of the old Soviet Politburo, where a handful of elites determined who could or could not stand for election.”
Alex Fairly, a GOP megadonor, said he would tap into his political action committee to challenge any potentials because it is “not only unlawful, but it’s disastrous for the Republican Party of Texas.”