The Texas Writ of Mandamus is a legal document that allows a party to request a court to compel a government official or entity to perform a duty required by law. This form serves as a crucial tool for individuals seeking to enforce their rights when faced with inaction or improper actions from public officials. Understanding how to effectively utilize this form can be essential for ensuring fair treatment within the legal system.
The Texas Writ of Mandamus form serves as a crucial legal instrument for individuals seeking to compel a government official to perform a duty they are legally obligated to fulfill. This form is particularly relevant in election-related disputes, as it allows plaintiffs to challenge decisions made by election officials that may hinder their candidacy or violate electoral laws. In the case of Candace Taylor, the form is utilized to address the rejection of her candidacy by the Secretary of State of Texas and the Tarrant County Elections Administrator. The document outlines essential components such as jurisdiction, venue, and service of process, ensuring that the case is properly filed and heard in a timely manner. Given the urgency of election timelines, the form emphasizes the need for an expedited hearing, highlighting the critical deadlines for candidate nominations and ballot certifications. Moreover, the factual background provided within the form details the circumstances surrounding Ms. Taylor’s nomination and the subsequent challenges she faces due to the tragic passing of her opponent. By using this form, Ms. Taylor seeks not only to assert her qualifications but also to secure her rightful place on the ballot, thereby safeguarding her democratic participation in the electoral process.
Cause No. _______
CANDACE TAYLOR,
§ IN THE SUPREME COURT
§
Plaintiff
vs.
SECRETARY OF STATE OF
OF
TEXAS HOPE ANDRADE
and TARRANT COUNTY
ELECTIONS ADMINISTRATOR
STEVE RABORN,
Defendants
§ THE STATE OF TEXAS
PLAINTIFF’S ORIGINAL PETITION, EMERGENCY APPLICATION
FOR WRIT OF MANDAMUS AND INJUNCTIVE RELIEF
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW Plaintiff Candace Taylor (“Ms. Taylor”) and files this Original Petition and Emergency Application for Writ of Mandamus and Injunctive Relief against Defendants, Hope Andrade, Secretary of State of Texas (the “Secretary”) and Steve Raborn, Tarrant County Elections Administrator (“Raborn”) (the Secretary and Raborn may be referred to collectively as “Defendants”), and for same show the Court as follows:
PLAINTIFF’S ORIGINAL PETITION AND
EMERGENCY APPLICATION FORPage 1
WRIT OF MANDAMUS AND INJUNCTIVE RELIEF
I.
JURISDICTION AND VENUE; SERVICE OF PROCESS
This Court has jurisdiction pursuant to TEXAS ELECTION CODE §§ 273.061 and 273.081. The Secretary of State of Texas may be served with process at 1100 Congress, Capitol Bldg., Room 1E.8, Austin, Texas 78701. Steve Raborn, Tarrant County Elections Administrator, may be served with process at 2700 Premier Street, Fort Worth 76111.
II.
REQUEST FOR EXPEDITED HEARING
Because of the upcoming deadlines relating to candidacy for the upcoming general election, scheduled for November 2, 2010, the necessity of resolving the issues that are the subject of this Petition is urgent, and Plaintiff requests that the Court set this matter for hearing on an expedited basis. The deadline for submitting a candidate’s name for inclusion on the ballot is August 20, 2010, which Plaintiff Candace Taylor has already done, as evidenced by the letter from the Secretary of State, rejecting Ms. Taylor’s application, which is attached to this Petition as Exhibit A. The deadline for certifying the ballot is on or about August 24, 2010, a date after which Defendant's will argue adding a candidate to the ballot for the 432nd District Court will be moot.
EMERGENCY APPLICATION FORPage 2
III.
FACTUAL BACKGROUND
1.Plaintiff Candace Taylor is an attorney licensed to practice law in the State of Texas, having been granted her law license in 1996. Ms. Taylor meets all of the qualifications for a candidate for public office pursuant to Section 141.001 of the TEXAS ELECTION CODE.
2.In 2009, a new criminal district court was created in Tarrant County, Texas. This was the 432nd District Court, and the initial Judge of the court was Ruben Gonzalez, who was appointed by Governor Rick Perry in accordance with Texas law governing the filling of judicial posts in newly created courts between elections. Judge Gonzalez’s term is set to expire, and the position will be filled by the winning candidate in the general election this coming November.
3.In March 2010, the Republican and Democratic Parties each held primary elections to determine the parties’ respective choices for candidates to be placed on the ballot for the general election scheduled for November 2, 2010 (hereinafter, the “General Election”). Ms. Taylor was aware that the Republican nominee for the 432nd District Court was Tom Zachry, whom Ms. Taylor believed was a highly qualified candidate, and that Mr. Zachry would win the primary election against Judge Gonzalez. Ms. Taylor, and the Democratic Party generally, were satisfied that Mr. Zachry would be an excellent judge, which was
EMERGENCY APPLICATION FORPage 3
an important reason why the Democratic Party chose not to run a candidate in
the primary elections for the 432nd District Court.
4.Mr. Zachry did, in fact, defeat Judge Gonzalez in the primary, and was to have been the Republican candidate for the judgeship for the 432nd Court in the General Election. The Democrats and Ms. Taylor, not wanting to run a candidate against Mr. Zachry, were content for Mr. Zachry to run unopposed in the general election.
5.Unfortunately, Mr. Zachry was killed in a tragic boating accident shortly after the primary election. On March 19, 2010, Mr. Zachry’s boat capsized on Aquilla Lake, and Mr. Zachry was subsequently pronounced dead.
Mr. Zachry’s death created a vacancy in the nominees for judge of the 432nd District Court in the November General Election. As Mr. Zachry was to have been unopposed, his passing left no candidate for the position.
6.As a further result of Mr. Zachry’s untimely death, Plaintiff Candace Taylor (and Democratic Party officials of Tarrant County) now faces the prospect of having the Republican Party offer a replacement for Mr. Zachry. In fact, the Republican Party has named Judge Ruben Gonzalez – the very candidate whom Mr. Zachry defeated in the March primary - as the replacement for Mr. Zachry. Neither Ms. Taylor nor Democratic Party officials finds Judge Gonzalez to be a satisfactory replacement nominee, and do not believe Judge Gonzalez is the best candidate to hold the position of Judge of the 432nd District Court.
EMERGENCY APPLICATION FORPage 4
Accordingly, Ms. Taylor has been requested by the Democratic Party to run against Judge Gonzalez in the General Election, and Ms. Taylor has been named by the Democratic Party of Tarrant County as a replacement candidate due to the death of Tom Zachry.
7.On July 19, 2010, the Tarrant County Democratic Party Executive Committee, a quorum being present, nominated Candace Taylor as the Democratic Party for the office of 432nd District Court. Tarrant County Democratic Party Chairman Steve Maxwell immediately certified the nomination and forwarded Candace Taylor's nomination to the Texas Secretary of State. Ms. Taylor’s name was submitted to the Texas Secretary of State in accordance with Texas law and procedure. See Tex. Elec. Code §143.037. A copy of a letter from Mr. Stephen C. Maxwell, Tarrant County Democratic Party Chair, to the Secretary is attached hereto as Exhibit A. The Secretary, however, has rejected Ms. Taylor as a candidate, stating that she is not qualified to run in the General Election against Judge Gonzalez for the sole reason that Ms. Taylor was not selected as a candidate by the Democratic Party in its March primary elections. A copy of an August 3, 2010 letter from the Secretary to Mr. Maxwell, denying certification of Ms. Taylor as a nominee, is attached hereto as Exhibit B.
8.Plaintiff Candace Taylor believes the Secretary of State’s position on this issue is unfounded, and therefore brings this action seeking an order from this Court that Candace Taylor be placed on the ballot as a judicial candidate for
EMERGENCY APPLICATION FORPage 5
the 432nd District Court in the General Election scheduled to be held in the State
of Texas on November 2, 2010.
IV.
ARGUMENT AND LEGAL AUTHORITIES
9.The Secretary relies on Sections 145.035 and 145.036 of the Texas Election Code (the “Code”) as the basis for denying Ms. Taylor a place on the General Election ballot. Section 145.036(a) of the Code states as follows:
(a)Except as provided by Subsection (b), if a candidate's name is to be omitted from the ballot under Section 145.035, the political party's state, district, county, or precinct executive committee, as appropriate for the particular office, may nominate a replacement candidate to fill the vacancy in the nomination.
Subsection (b) establishes the conditions whereby a committee may select
a replacement nominee who has withdrawn due to a catastrophic illness, and is
therefore inapplicable to the situation at hand.
10.The Secretary contends that, because Ms Taylor was not a candidate for the 432nd judicial post in the Democratic Party’s primary election, Ms. Taylor may not now be listed as a candidate for the position on the General Election ballot. The Secretary’s position is that, for candidates who withdraw because of death, the replacement process requires that any replacement nominee must be one who was a candidate in a party’s primary (or at least that the party must have listed a candidate for the position in its primary election).
EMERGENCY APPLICATION FORPage 6
The Secretary’s Position Violates the Texas Constitution
11.Article 5, Section 28 of the Texas Constitution states that, in the event of a vacancy in the office of judge of a district court, any such vacancy will be filled by the Governor of Texas, and the appointee shall serve until “the next succeeding General Election….” TEX. CONST. ART. 5, SEC. 28. At the General Election, “…the voters shall fill the vacancy for the unexpired term.” Id.
12.Under the circumstances of this case, the “vacancy” occurred only because a new court was created, and the Governor properly appointed a judge – Judge Gonzalez – to serve until the next General Election.
13.The Texas Constitution, however, requires that at the next General Election, it is the voters who decide who will serve as judge. The voters are not even being given that opportunity in this case and, in fact, if the Secretary’s position were to be sustained, the voters would be allowed to select only one major party candidate whom voters (those who voted in the Republican primary) have already rejected as a candidate!1 The inequity of such a situation is obvious, fundamentally flawed, and violates the precepts of our State’s Constitution.
14.Furthermore, the Texas Election Code, as applied by the Texas Secretary of State, violates Candace Taylor’s right to Equal Protection, Candace
1Judge Gonzalez lost the primary election by some 20 points.
EMERGENCY APPLICATION FORPage 7
Taylor's First Amendment Right to be a candidate, and the voters of Tarrant County's rights to vote, as protected by the Texas Constitution. There is no rational basis or compelling interest under the Texas Equal Protection Clause to allow the Republican Party to nominate a candidate while not allowing the Democratic Party to nominate a candidate after the death of the Republican nominee. Candace Taylor had no desire to run when Tom Zachary was a candidate; only upon Mr. Zachry’s death did Ms. Taylor agree to run for the 432nd District Court. There is no rational basis or compelling interest under the Equal Protection Clause to deny voters the right to choose between two candidates for the 432nd District Court after the death of Tom Zachary.
Statutes Must Be Strictly Construed in Favor of Ballot Access
15.Any constitutional or statutory provision which restricts the right to hold office must be strictly construed against ineligibility. Texas Democratic Party v. Benkiser, 459 F.3d 582, 590 (5th Cir. 2006); Wentworth v. Meyer, 839 S.W.2d 766-67 (Tex. 1992). The Texas Supreme Court has consistently held that political candidates’ access to the ballot shall be given precedence over “rigid adherence to statutory deadlines, when a candidate is deprived of a place on the ballot through no fault of the candidate’s.” See Bird v. Rothstein, 930 S.W.2d 586, 588 (Tex. 1996); Davis v. Taylor, 930 S.W.2d 581, 583 (Tex. 1996). Laws must be construed broadly in favor of eligibility in the interest of access to
EMERGENCY APPLICATION FORPage 8
the ballot. See Pilcher v. Rains, 853 F.2d 334, 336 (5th Cir. 1988); Davis, 930
S.W.2d at 583.
Strict Adherence to Code Deadlines Inapplicable in Unusual Situations
16.Moreover, the Texas Supreme Court has explicitly held that “withdrawal and replacement deadlines in the Election Code are not intended to apply to unusual situations when there is not a reasonable opportunity to comply with a statutorily set deadline.” Slagle v. Hannah, 837 S.W.2d 100, 102 (Tex. 1992). Nor is it unprecedented for a candidate to be placed on a general election ballot by a process other than primary election, where circumstances prevented the candidate from running in the primary. See In re Dupont, 142 S.W.3d 528 (Tex. App. – Fort Worth 2004, orig. proceeding). In Dupont, a vacancy occurred too late for nominees to be selected by voters in a primary election; therefore, the Parker County Republican Party selected a nominee by a meeting of the Party’s Executive Committee. Id. at 529-30.
17.The Secretary nevertheless has opted for a construction of Code §145.036 that would prevent access to the ballot by Ms. Taylor, despite the lack of any concrete basis for such an interpretation. As reflected in the Secretary’s August 3rd letter, the Secretary relies upon a single phrase – emphasized in the letter – as the basis for denying Ms. Taylor’s nomination. The portion of the statute at issue states:
EMERGENCY APPLICATION FORPage 9
Except as provided by Subsection (b), if a candidate’s name is to be omitted from the ballot under Section 145.035, the political party’s state, district or precinct executive committee….may nominate a replacement candidate….”
(emphasis taken from Secretary of State’s August 3, 2010 letter).
18.The Secretary, however, ignores the unusual circumstances of this case. At the time the primary elections were held, Ms. Taylor (and Democratic Party representatives) was confident that Mr. Zachry would defeat Judge Gonzalez in the primary election, and that Mr. Zachry would be an excellent judge for the 432nd District Court. Accordingly, Ms. Taylor, content with Mr. Zachry as a nominee for the judgeship, with the blessing of the Democratic Party, did not run in the primary. Candace Taylor's nomination is proper and not prohibited by the terms of section 145.036 of the Texas Election Code.
19.Obviously, circumstances changed with Mr. Zachry’s tragic death. Neither Ms. Taylor nor the Democratic Party is satisfied that Judge Gonzalez – who lost the primary election to Mr. Zachry – will serve at the same level as Mr. Zachry would have. As such, both Ms. Taylor and the Democratic Party are compelled to offer voters another selection for the judgeship, someone other than a candidate who was rejected by primary voters in March 2010.
20.This is precisely the type of “unusual situation” to which the Texas Supreme Court referred in holding that Election Code withdrawal and replacement deadlines must not be construed in such a way as to prevent
EMERGENCY APPLICATION FORPage 10
Texas Temporary Tag - Allows for immediate legal use of vehicles in Texas while awaiting the issuance of permanent plates.
Order Birth Certificate Texas - It allows for the formal correction of errors that were made at the time of a child’s birth recording, acknowledging the need for accurateness.
Coi - This document clarifies that the Certificate Holder, the Texas State Board of Plumbing Examiners, does not validate the accuracy of the information within the COI.