Texas Election Code
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Per the Texas Elections Division
1. What is the procedure for challenging an ineligible candidate?
ANSWER: Broadly speaking, there are two scenarios that could result in a candidate’s name being removed from a ballot. First, a candidate’s application for a place on the ballot might be rejected for procedural reasons. For example, if a candidate failed to pay a required filing fee, or forgot to include information on the application for a place on the ballot. We’ll ignore that scenario, because you’ve specified that you are just focusing on a presumptively ineligible candidate.
Second, a candidate might fail to meet some legal requirement that applies to the office sought. For example, a candidate with a final felony conviction is ineligible to run for or hold state or local elective public office, per Section 141.001(a)(4), Texas Election Code.
Section 145.003 of the Election Code describes the process for declaring a candidate ineligible.
Per Subsection (f) of Section 145.003, a candidate may only be declared ineligible if either (1) the information on the candidate’s application for a place on the ballot indicates that the candidate is ineligible, or (2) if the facts indicating the candidate’s ineligibility are conclusively established by another public record. Continuing the example of a candidate with a felony conviction, such a candidate could be declared ineligible either because (1) the candidate wrote “I am a convicted felon” on the application, or (2) the authority responsible for preparing the ballot received a certified copy of the original order of conviction and judgment from the court that actually convicted the candidate.
Examples of ineligibility that might appear on the face of an application include direct admissions by a candidate indicating that he or she fails to meet the minimum age or residency requirement for the office, or admissions that the candidate is mentally incapacitated or a convicted felon. For instance, a candidate for the office of sheriff must be at least 18 years old. If the candidate writes that he or she was born on February 15, 1994 (and is therefore younger than 18), ineligibility is obvious on the face of the application. Another example would be a candidate application in which the candidate wrote that he or she has permanently resided in the State of Texas for only 32 days prior to the filing deadline, even though the residential duration requirements for most public offices is at least one year.
Examples of ineligibility conclusively established by a public record could include documents like a current probate court order of involuntary commitment and attached findings of fact concluding that the candidate is currently mentally incapacitated for public office.
In either case, the authority responsible for preparing the ballot would declare that the candidate is ineligible, and would promptly give a written notice of that decision to the affected candidate.
2. Does an objection to a candidate have to be made before the name is placed on the ballot, or after?
A candidate’s eligibility may be challenged as soon as the candidate’s application is filed, but as you might suspect, there are some deadlines that must be kept in mind. For any particular office, it’s useful to ask “what is the last day that a candidate could have his or her name removed from the ballot,” and “what is the last day to declare the candidate ineligible.” The two dates are not the same.
3. Is there a deadline that applies to administrative declarations of ineligibility?
The first important deadline to be mindful of is the deadline to remove a candidate’s name from the ballot. Pursuant to recent changes in state law that amended Sections 172.057 and 172.058 of the Election Code, and in accordance with a new administrative rule adopted by the Secretary of State (1 Tex. Admin. Code Section 81.420), the deadline to remove a candidate’s name from the ballot in a primary is one day after the filing deadline. For the 2012 primaries, this deadline is December 13, 2011.
For the November 2012 general election, it is expected that the deadline for the certification of candidate’s names on the ballot will be August 20, 2012, (78 days before the election) and the deadline to remove the names from the ballot will be August 24, 2012 (74 days before the election). (See Sections 145.035, 145.063, and 145.094, Texas Election Code, for various candidate withdrawal deadline calculations).
The candidate’s name cannot be removed from the ballot after the deadline to withdraw from the election has passed, but the authority responsible for preparing the ballots can declare the candidate ineligible as late as 30 days before the election.
After the election, a new brief window of time opens to allow pre-swearing-in declarations of ineligibility by the chief executive officer of the canvassing authority. A candidate may be declared ineligible any time after Election Night, but not later than before the election results are canvassed (usually eight to eleven days after the election). A candidate may not be declared ineligible after receiving the certificate of election, because at that point the candidate becomes a public officeholder and is only subject to removal through a specialized proceeding that is conducted in state district court (a “Request for Writ of Quo Warranto”).