HD 82: What Does The Dingus Opinion Really Say?

[Big hat-tip to Texas Weekly for sending the opinion out to the Election Law listserv.]

After a review of the opinion issued by Judge Walter Smith (of Branch Davidian siege case fame, for those judicial trivia buffs out there), it appears that both Dingus and the Republican Party of Texas are right–partially–in their interpretations of what the court has ordered. The ruling is hardly a “complete victory” for the Republican Party of Texas–and it hardly declares that Dingus may stay on the ballot.

From the opinion:

Mr. Dingus’ eligibility defect is a substantive defect based on the Texas Constitution’s eligibility requirements. The Francis case limited its holding to only facial defects, which are not present in this case. 186 S.W.3d at 542-43. Thus, the Court finds that Plaintiff’s Complaint does not present any legally cognizable claims for relief.

For these reasons, Defendants’ Motion to Dismiss should be granted. Accordingly, it is ORDERED that the Motion to Dismiss of the Republican Party of Texas and Tina Benkiser, in her capacity as Chair of the Republican Party of Texas is GRANTED and Plaintiffs’ claims against the Republican Party of Texas and Tina Benkiser, in her capacity as Chair of the Republican Party of Texas, are DISMISSED. It is further ORDERED that any and all pending motions or requests not previously ruled upon by the Court are DENIED as moot.

Here is the statement Capitol Annex received from TDP Communications Director Hector Nieto a while ago:

The Texas Democratic Party has received the judge’s opinion. Our attorney is currently in the process of reviewing the opinion and determining what steps, if any, the Texas Democratic Party will take.

Here is the statement from the Republican Party of Texas:

“The Court’s ruling is a complete victory for the Republican Party of Texas. The Court not only held that the Democratic Party candidate for the Texas House of Representatives in District 82 is not eligible for the Legislature because he already holds a lucrative office as a member of the Midland City Council, but also held that the eligibility defect of the Democratic Party candidate cannot be cured by him now resigning his City Council office. Needless to say, we are very pleased with the decision. We now hope appropriate action will be taken by the relevant individuals and entities,” said Tina Benkiser, Chairman of the Republican Party of Texas.

Earlier, of course, there was some confusion as to what the order actually meant. QR was reporting that Dingus maintained he was still on the ballot:

“Contrary to early news reports, I remain on the ballot for State Representative. Judge Smith did not remove me from the ballot. He only dismissed the Texas Democratic Party’s complaint.”

In order to explain all of this and the confusion it has caused, some background is necessary here.

The TDP actually brought this suit against the Republican Party of Texas. At issue here is whether another federal court’s order stands above the provisions of the Texas Constitution that mandate “resign to run” in cases like this, which in and of itself was specific to the Midland City Council. The TDP contended that, based on the court order, Dingus did not need to resign from his city council position:

Plaintiffs’ claim is based on a 1996 federal court order (the “Order”) in a voting rights case that allowed existing city officers to maintain their current city council positions while running for another office. The Order states in relevant part:

If the Mayor or any Council Member shall announce their candidacy, or shall in fact become a candidate, in any general, special or primary election, for any office of profit or trust under the laws of the State of Texas or the United States other than the office then held, such announcement or candidacy shall not constitute an automatic resignation of the office then held and such resignation shall occur only when the individual is sworn in to serve the new office.

If that isn’t just as clear as mud to you, consider that the R’s further muddied the water by alleging that this order was issued during a time the city of Midland was transitioning from at-large to single-member districts, which isn’t something that particularly seems to matter.

Because, when Dingus filed for office, he relied on that court order, the TDP sued asking for a declaratory judgment declaring:

(1) Mr. Dingus is eligible to run for and serve in the office he seeks;
(2) acceptance and certification of Mr. Dingus’ ballot application was proper by
Plaintiffs; and
(3) Mr. Dingus is eligible to seek the Office of State Representative, District 82.

Additionally, the TDP had an alternate relief request: that if the Court vacated or clarified its order and declared Dingus ineligible for the office, that Dingus be granted the opportunity to resign after the fact. Or, in the alternative, that if Dingus resigned, that injunctive relief be granted to provide that his name be on the ballot.

Boiling all of this down to brass tacks, the TDP basically contended that the previous federal court order Dingus followed was in full force. The Republicans countered that the order had a limited scope to a finite time period, and was not intended to govern or usurp the Texas Constitution for all future election cycles.

Essentially, the judge agreed with the Republicans’ arguments–that the previous order simply did not apply to Dingus.

What the judge actually ordered was the dismissal of the lawsuit. Although the judge stated in his opinion that Dingus was ineligible to be on the ballot, it is in no way clear that his order actually takes Dingus off the ballot. In fact, the Court addresses–in several points–that neither the Texas Democratic Party nor the Texas Secretary of State has declared Dingus ineligible for office, and points out that only specific parties have standing when challenging ballot eligibility.

Interestingly, the court also holds that the Dingus problem of not resigning is not a facial defect such as Judge Robert Francis had with his petitions for office back during the 2006 election cycle (In Re Francis).

Although the judge’s opinion did state that Dingus was not eligible for the ballot, the main crux of the opinion was that the previous order involving the Midland City Council simply was no longer valid and did not declare the Texas Constitution unconstitutional.

The Order does not hold that resignation is not required when it is required under Texas election law. Further, Judge Bunton did not declare the Texas Constitution unconstitutional regarding candidacy requirements. The Court agrees that a person holding a lucrative office, such as a member of the Midland City Council, is not eligible to become a candidate for the Texas Legislature.

The big, big, big issue here, and the one upon which Republicans are claiming victory, is whether this opinion keeps Dingus off the ballot or actually declares him ineligible. I would argue that it does not. It simply dismisses the TDP’s complaint, but does so in language that makes it clear that, when the time comes to actually determine Dingus’ eligibility, he simply is not eligible.

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