THE DENIAL OF VOTER CHOICE IN THE LONE STAR STATE- How Voting Rights Guaranteed By The Texas Constitution Are Systematically Denied

The Texas electoral process systematically denies Texas voters the right to a meaningful choice in the election of their political leaders. The current process protects incumbents and reinforces the status quo by giving Republican and Democratic party candidates automatic access to the ballot through taxpayer subsidized primaries. At the same time, it subjects their potential challengers to a regulatory scheme so complicated and onerous that merely attempting to participate in the electoral process drains the resources of all but the wealthiest candidates or parties.

This has resulted in a near monopoly that starves our democracy of innovation. Parties that were founded decades ago and independent candidates struggle to gain and maintain ballot access in election cycle after election cycle, leaving them without resources to mount serious campaigns, spread their message and provide voters with genuine meaningful choices.

Our findings raise serious questions with respect to whether this violates the protections of voters’ rights guaranteed by the Texas Constitution.

THE TEXAS CONSTITUTION AND VOTING RIGHTS

Texas has a culture of individual independence and self-governance, which is reflected in the state Constitution:

Tex. Const. Art. I, Sec. 2: INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.”

The enactment of laws restricting ballot access and therefore voter choice, impair the ability of Texans to practice local self-government. Laws to regulate the election process exist only to protect the order and integrity of the electoral process. The Texas Constitution explicitly protects the integrity of the electoral process and the rights of citizens to cast their votes for candidates of their choice.

Tex. Const. Art. 6. Sec. 2(c): FREE SUFFRAGE. “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.”

A plain language reading of “free suffrage” or the right to vote means that a citizen can cast a ballot for the candidate of their choice. In Texas, the right to cast a meaningful vote is violated or infringed in each election cycle because Texas has established some of the nation’s most restrictive regulatory and financial barriers to ballot access.

These barriers are starving its democratic systems and denying voters a meaningful choice. TVC reviewed all State Senate and House races in November general elections between 1992-2016. We found in the State Senate – 30% of the races – and in the State House – 48% of the races – voters were denied a meaningful vote because there was only one candidate on the ballot.  How can Texans “alter, reform or abolish their government” when they have no meaningful choice about whom they elect to represent them?

What does the state constitutional guarantee of free suffrage mean when in almost half of the elections for the state house over the last 24 years, voters were denied a meaningful vote because there was one candidate running unopposed on the ballot?  How can the five million Texans not associated with a political party cast a meaningful vote when their perspective is not represented on the ballot?

THE BARRIERS

In April 2017,  Texans for Voter Choice published its research paper :  OUTDATED, OVER REGULATED AND JUST PLAIN COMPLICATED: How Ballot Access Laws Deny Texas Voters a Free Choice at the Polls.

We compared ballot access regulations across all 50 states to Texas.  The research documented numerous examples of the regulatory barriers Texas has enacted to deny the voter rights guaranteed by the state and federal Constitutions. Some of the most egregious examples include:

  • High signature requirements, short collection times, and early filing deadlines that combine to make compliance practically impossible for all but the wealthiest parties and candidates;
  • Texas is the only state in the nation that prohibits primary election voters from signing a minor party or independent candidate’s nomination petition;
  • Texas is the only state in the nation that requires petition circulators to read an oath aloud to each signer, which confirms they did not vote in the Primary election;
  • Texas is the only state in the nation that requires petition circulators to review nomination petitions prior to submitting them, to verify each signer’s voter registration;
  • Excessive requirements for retaining ballot access forces independent and minor parties to repeat the process in successive elections.

These regulatory barriers were enacted by a state legislature populated entirely by the Democratic and Republican political parties. These two private entities – which are never mentioned in either the State or Federal Constitution –  thus rely upon state power to entrench themselves and exclude potential competitors. Does this rise to the level of an “undue influence in elections from power” that is prohibited by the Texas Constitution?  Allowing private entities to create regulatory barriers that exclude potential competitors is a violation of the protection from “undue influence in elections from power” that is prohibited by the Texas Constitution.

In May 2017, Texans for Voter Choice published a research paper: Political Welfare: How Texas Taxpayers Fund A Discriminatory System That Limits Voter Choice.   The paper exposed a significant, and substantive additional element in how Texas undermines the voter protections guaranteed in Texas Constitution.  In addition to the regulatory barriers we previously identified we found that from 2001-2016 Texas taxpayers spent more than $100 million to reimburse Texas Counties, and the Republican and Democratic parties for the cost of administering their primary elections and voter registration.

This stands in sharp contrast to the substantial financial burden imposed by the process that independent candidates and minor parties must follow to qualify for the ballot. In 2016, to comply with the high signature requirements, short signature collection window, and early filing deadline they face, as well as a long and complicated list of additional requirements and restrictions, new or minor parties could expect to pay a minimum of $210,000, and an independent candidate for president $360,000.

Allowing private entities to create regulatory barriers that exclude potential competitors is a violation of the protection from “undue influence in elections from power” that is prohibited by the Texas Constitution.

Much of this expense is due to Texas’ 100 – year- old requirement that signatures be collected by hand and submitted on paper nomination petitions rather than electronically. This necessitates the hiring of professional petition circulators, who currently charge at least $3 per signature. The result is that simply qualifying for the ballot is a cost-prohibitive endeavor for all but the wealthiest of candidates or parties.

The discriminatory nature of a statutory scheme that grants automatic access to the two oldest political parties, while imposing cost-prohibitive financial burdens on all but the wealthiest of their potential competitors, once again raises the question whether such a system rises to the level of an “undue influence in elections from power” that is prohibited by the Texas Constitution.

THE IMPACT

TVC reviewed all state legislative races in general elections between 1992-2016. We found a pattern of systematic denial of voters’ rights because there was only one choice of candidate on the ballot.

In Table one we see that in 30% of the races for State Senate, candidates were not challenged by a competing candidate.  This means that in every general election in 1992 at least four million Texans[1] were denied the opportunity to cast a meaningful ballot for the candidate of their choice.

TABLE ONE

General Election Number of Races Candidates without opposition Texans denied meaningful vote
1992 31 8 4,384,000
1994 31 12 6,576,000
1996 16 6 3,288,000
1998 16 9 4,932,000
2000 15 8 4,384,000
2002 32 9 5,940,000
2004 15 10 6,600,000
2006 34 3 1,980,000
2008 15 3 1,980,000
2010 16 2 1,320,000
2012 31 8 6,448,000
2014 15 1 806,000
2016 16 7 5,642,000
TOTAL 283 86
% races unopposed 30%
Avg. denied meaningful vote 4,175,384

This pattern of systematic denial of voter rights because of only one candidate on the ballot is even more pronounced in the State House, where 48% of the races had candidates who were unopposed.

In Table two, we see this means that on average in every general election since 1992 at least nine million Texans[2] were denied the opportunity to cast a meaningful ballot for the candidate of their choice.

TABLE TWO

General Elections Number of Races

Candidates without opposition

Texans denied a meaningful vote
1992 150 78   8,814,000
1994 150 91 10,961,000
1996 150 83   9,379,000
1998 150 95 10,735,000
2000 150 91 10,283,000
2002 150 58   7,888,000
2004 150 79 10,744,000
2006 150 37   5,032,000
2008 150 40   5,440,000
2010 150 66   8,976,000
2012 150 60 10,080,000
2014 150 68 11,424,000
2016 150 81 13,608,000
Total 1950 927
% races unopposed 48%
Avg. Texans denied meaningful vote 9,437,385

 

A closer look at the State House District races between 1992-2016 reveals and further illuminates how the systemic regulatory and financial barriers to ballot access have been manifested in the Texas electoral system. As we can see in Table 3, in 21 districts, voters were denied a meaningful voter choice because candidates ran unopposed, between 77% and 92% of the time.

TABLE THREE

State House District % Elections Unopposed Partisan Ranking Region
7 77% 10-R/13 NE Texas
22 77% 10-D/13 SE Texas
31 77% 10-D/13 S Texas (Valley)
68 77% (7-R/3D) 10/13 Pan Handle
82 77% 10-R/13 W Texas
119 77% 10-D/13 San Antonio- urban
124 77% 10-D/13 San Antonio- urban
131 77% 10-D/13 Houston-urban
36 85% 11-D/13 S Texas (Valley)
39 85% 11-D/13 S Texas (Valley)
77 85% 11-D/13 El Paso- urban
79 85% (10-D/1-R) 11/13 El Paso- urban
86 85% 11-R/13 Pan Handle
88 85% (9-R/2-D) 11/13 W Texas-Pan Handle
110 85% 11-D/13 Dallas- urban
142 85% 11-D/13 Houston-urban
37 92% 12-D/13 S Texas (Valley)
42 92% 12-D/13 S Texas (Valley)
76 92% 12-D/13 El Paso- urban
139 92% 12-D/13 Houston-urban
140 92% 12-D/13 Houston-urban

A closer look at these 21 districts also confirms that this denial of a meaningful voter choice is across the board. It occurs in districts historically dominated by both Democrats and Republicans and in both rural and urban areas.

  • These 21 districts were split: 6 controlled by Republicans a majority of the time and 15 controlled by Democrats a majority of the time.
  • These 21 districts were evenly split between urban and rural areas: 10 were urban and 11 rural.

Our research raises serious questions about the fairness of the political system in Texas, but it also raises questions about the efficacy of the legislature and the legislative process. In the recently concluded legislative session, a majority of the calendar was dominated by narrow, ideologically driven debates like Senate Bill 3, the “bathroom bill”.  Is it time for Texans to question whether their state Legislature is so sclerotic and clogged up that it can no longer function effectively?

REFORM AGENDA: The Texas Voter Choice Act.

  • Remove regulatory barriers that prevent voters from casting a meaningful vote;
  • Modernize ballot access procedures to remove financial discrimination against independents, minor and new political parties;

The Texas Voter Choice Act, first introduced in the 85th Texas Legislative Session as HB 3068, will restore and protect the right of every Texan to cast a meaningful vote in local, state and federal elections. It establishes reasonable ballot access requirements for all candidates and replaces outdated paper nomination petitions by implementing a secure, web-based technologies now commonly used for commercial transactions throughout the state of Texas and nationwide.  This enables qualified voters to sign any candidate’s nomination petition online, and it reduces the inefficiency and expense associated with the current paper-based processes. With those simple changes, Texans can once again have a free choice of candidates.

The Texas Voter Choice Act – Key Provisions:

  • Establishes Reasonable Signature Requirements and Filing Deadlines
  • Authorizes Voters to Sign Nomination Petitions Online
  • Eliminates Restrictions on Voters’ Right to Sign Nomination Petitions
  • Eliminates Unneeded Filing Requirements for Candidates

 

[1] http://www.senate.texas.gov/news.php?id=20000414a   Each Senate district had at least 548,000 people per 1990 census, 660,000 people per 2000 census, and 806,000 people per 2010 census.

[2] http://www.senate.texas.gov/news.php?id=20000414a   Each House district had at least 113,000 people per 1990 census, 136,000 people per 2000 census, and 168,000 people per 2010 census.