Will A Secret Ballot Doom Tom Craddick, And Is It Legal?

As discussion related to a secret ballot in the race for Texas House Speaker is revived almost two years after the measure died a public death on the floor of the Texas House when an amendment to keep ballots in the speaker’s race a secret until after committee assignments were made heats up, two questions dominate the debate: will a secret ballot doom Tom Craddick, and is a secret ballot legal?

The answer to the first question, whether or not a secret ballot will doom Craddick, is “maybe.” The answer to the second question, is a secret ballot legal, is “yes.”

We’ll discuss the secret ballot question first.

Alexis DeLee, Speaker Craddick’s spokesperson, alleges that a secret ballot election would be illegal:

“The Texas Constitution requires a record vote to be open if requested by three members on any question,” Craddick spokeswoman Alexis DeLee says. “The House could close the ballot, but it will have to be open if requested by three members.”

First, significant precedent exists for a secret ballot in a Speaker’s race. We’ve seen sources claiming that there have been between 39 and 50 secret ballot elections for Texas House Speaker in the History of the House.

We take specific note of a couple we’ve reviewed.

Going back to 1925 and the 39th Session of the Texas Legislature, on January 13, 1925, the House actually passed a resolution to allow for secret ballots. The members voted for Speaker by coming forward and putting their votes in a hat, which were counted by tellers appointed by the Secretary of State who presided over the House until a Speaker was elected. That process was repeated six times until Rep. Lee Satterwhite of Potter County was elected Speaker.

Also, in 1909, although there is no specific reference to a resolution being authored to allow a secret ballot, it is fairly clear that there was one during the First Called Session of the 31st Legislature. This election was fairly unique. In this instance, Speaker A.M. Kennedy announced his resignation at the start of the special session. He did so in response to a resolution passed by the House toward the end of the 31st Regular Session that actually requested him to step down. Language in the House Journal indicates that tellers and counters were appointed, indicating that there was a secret paper ballot in the election.

In addition to historical precedent, there are three other items that must be considered: the Point of Order issued during the 2007 Speaker’s Election which ruled that it was within the power of the House itself to determine how its leaders were elected; the opinion issued by Texas Attorney General Greg Abbott in December of 2007 relating to the nature of the Speaker of the House and the House Rules; and In The Texas Senate and Honorable Rodney Ellis, the Texas Supreme Court case that came about when the Texas Senate was preparing to elect a Lieutenant Governor in in late 2000 after then-Governor George W. Bush became President and Lt. Governor Rick Perry was elevated to the governorship, leavint the Lt. Governor’s post vacant. Of these, In RE Ellis carries the most weight; the 2007 AG’s opinion carries the least weight, but includes one important phrase we’ll call your attention to in a moment.

First, we’ll examine the point of order opinion. In 2007, when the House convened and set about electing a Speaker, a resolution, HR 35,  was considered that set forth a manner of electing the speaker using paper ballots. Rep. Charlie Geren (R-Fort Worth) proffered an amendment to that resolution that would have stipulated that the tally of which members voted for a specific candiate for speaker would be kept secret until after all committee assignments were made.

Rep. Phil King (R-Weatherford) raised a point of order against further consideration of the Geren Amendment claiming that:

…the Geren Amendment constitutes a secret ballot and Article 3, Section 12, of the Texas Constitution, which requires the “yeas or nays of the members on any question shall, at the desire of any three members present be entered on the journals. as well as Rule 5, Section 51 of the Temporary Rules and other temporary rules rules of the House relating to the recording of votes and entry of the votes on the journal.

Specifically, Representative King states that the very nature of a secret ballot is such that the a member’s vote for speaker can not be ascertained or can not be ascertained for a set period of time and the purpose of Article 3, Section 12 , and Rule 5, Section 51, and other temporary rules, the entering of the “yeas and the nays” on the House Journal is thwarted.

Taking a look at all of the issues and constitutional provisions in play, examining precedent, and relying heavily on In Re Ellis, the point of order was overruled, with the notation that the members of the House were free to make the secret ballot determination on their own:

Additionally, the Texas Constitution is clear that arguments based on policy concerns for or against a secret ballot are not the presiding officer to consider but are rather properly and wisely entrusted to the members of the Texas House. In short, the members must make this determination themselves.

Though we won’t dwell on it because it is essentially non-binding in this context, the 2007 opinion issued by AG Abbott makes a very interesting point when it comes to the House Rules:

Whether the House would extend these rules and precedents to hold a new Speaker election in the situation you describe is, of course, a matter for the House to decide in the first instance.

Here, the Attorney General declined to interfere in a couple of matters specific to House rules. That the Attorney General declined to intervene simply gives additional credence to the fact that the House has wide latitude make determinations on how the Speaker is elected.

Finally, and most importantly, we address In Re Ellis. In reality, this four-page Texas Supreme Court opinion from 2000 will play the biggest role in shaping the debate concerning what it is and is not legal for the House to do when electing its officers.

In determining whether or not the Senate may elect a Lieutenant Governor by secret ballot, the Court addressed a perceived conflict between Section 551.003 of the Texas Government Code (the Open Meetings Act) requiring that no secret meetings may be held by the Legislature except as authorized by the Texas Constitution and Article III, Section 41 of the Texas Constitution, which provides that voice votes are not required to be held by the legislature in the election of its officers:

Section 551.003 “prohibit[s] secret meetings of the legislature, committees of the legislature, and other bodies associated with the legislature, except as specifically provided in the constitution.” This provision clearly covers the Committee of the Whole Senate. Thus, its meeting and votes cannot be secret “except as specifically provided” by the Texas Constitution.
Article III, section 41 of the Texas Constitution states: “In all elections by the Senate and House of Representatives, jointly or separately, the vote shall be given viva voce, except in the election of their officers.” (Emphasis added.) This provision authorizes the Senate to elect its officers by secret ballot, should it choose to do so. This specific provision is therefore an exception to section 551.003. The question, then, is whether the election of a Senator to perform the duties of the office of Lieutenant Governor is an election of a Senate officer within the meaning of article III, section 41.

While that opinion was the result of an Open Meetings Act challenge brought by some Texas newspapers and Texas Monthly magazine, the court’s holding is applicable in this case because the decision upholds the rights of a chamber of the Texas Legislature to elect its officers however it sees fit:

Section 41 clearly gives each House of the Legislature the authority to elect its officers by means other than a viva voce vote.

[...]

If the framers and ratifiers intended that the exception clause in section 41 apply to Senate
officers except those whose duties could extend beyond the Senate — the Lieutenant Governor and president pro tempore — then they could easily have said so. We decline to make exceptions for these officers ourselves.

[...]

…the Constitution, by allowing but not requiring a secret ballot,
commits that choice to the Senate. [Emphasis added]

Article III, Section 41 of the Texas Constitution applies to both chambers of the Legislature. That the Texas Supreme Court has held it allows the Texas Senate to elect its officers in any manner consistent with Article III, Section 41 essentially means that the House has a significant and binding precedent to allow that body to elect its own officers in a similar fashion.

The next question is far more complicated: will a secret ballot election doom House Speaker Tom Craddick.

We say the answer is a “maybe.”

State Rep. Burt Solomons (R-Carrollton) says it would doom Craddick, and everyone else running for speaker:

Make it a secret ballot and neither the controversial Craddick nor any of the eight publicly declared candidates would win, says House Financial Institutions Chairman Burt Solomons, R-Carrollton.

We would tend to agree with the fact it would doom all other candidates except Craddick, but aren’t so sure it would doom Craddick himself. First and foremost, assuming there are no more than eight candidates running for speaker, with a secret ballot it would likely take at least six ballots before the numbers were reduced to Craddick and one other candidate. It would then depend upon whether Democrats were able to hold so-called “Craddick D’s” into the fold to vote for another Republican speaker, given that we belive it is highly unlikely any Democratic candidate for Speaker would make it past the first or second round of balloting.

It is likely, in such an instance, that the final ballot would be between Craddick and another Republican. Which Republican makes it into the final round of balloting would depend upon whether or not Craddick is doomed. If it happened to be a moderate Republican like State Rep. Tommy Merritt (R-Longview), it is safe to say that most of Merritt’s strength at that point would come from Democrats. Republicans, still frightened by what hapened with the Leininger 5 in the 2006 Republican Primary, would seem unlikely to support Merritt even in secret, for fear that Leininger and other Craddick allies may simply use their cash to purge the House of all moderate Republicans.

If the final ballot were between Craddick and a more conservative Republican, it would much likely be a far closer race, and would depend entirely upon how many Democrats Craddick would retain, and how many Republicans are confident enough in their vote counting abilities to believe they have a sure fire chance of getting rid of Craddick.

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