Why the Texas GOP won’t be able to replace Ken Paxton on the ballot even if he is convicted of a felony

Texas Attorney General Ken Paxton arrives at a news conference at the Price Daniels Building Wednesday May 25, 2016, where he announced he will sue to challenge President Obama’s transgender bathroom order. JAY JANNER / AMERICAN-STATESMAN

Good Tuesday Austin:

In yesterday’s First Reading I wrote about Jeffrey Payne of Dallas, who launched his campaign for the Democratic nomination for governor Saturday. This Saturday, another Democrat, Tom Wakely of San Antonio, will hold his campaign kickoff for governor.

Neither fills the bill of the kind of top-tier candidate the Texas Democratic Party hopes to recruit to run against Gov. Greg Abbott.

But the chances of defeating Abbott, even with a very good candidate, are very remote, and maybe that shouldn’t even be the focus of the Texas Democratic Party’s attention.

As Peggy Fikac  wrote last month in the San Antonio Express-News: Demo leader says it’d be OK to let Abbott go unchallenged.

AUSTIN – Texas Democratic Party leaders insist they’ll have a strong 2018 ticket including a so-far elusive viable gubernatorial candidate, but at least one stalwart says it’s not the end of the world if they don’t anoint a challenger to Republican Gov. Greg Abbott.

 It just might be a “smart” decision, said former state land commissioner Garry Mauro. One of the last Democrats to win election statewide in Texas — back in 1994 — he was Texas point person for Hillary Clinton in last year’s presidential election.

“We have a very unpopular United States senator. We have a very popular governor. We have a very unpopular lieutenant governor. And we have a bunch of no-name Republicans,” Mauro said. “We have a target-rich environment. Why go against somebody who doesn’t fit in that category?”

While the story didn’t mention Ken Paxton, it would seem that an attorney general facing trial on felony charges in the thick of his re-election campaign would present the richest target of all.

Add to that, from the Statesman’s  Chuck Lindell, Ken Paxton investigated for accepting $100,000 gift

Texas Attorney General Ken Paxton is under investigation for accepting $100,000 from the head of a company that was being investigated for fraud, and a decision on whether to pursue bribery-related charges is expected soon.

The money, part of almost $548,000 Paxton has collected to help pay for his legal defense against felony charges that he defrauded investors in private business deals in 2011, came from James Webb of Frisco, the president of Preferred Imaging, a medical diagnostic firm.

In 2016, Preferred Imaging paid $3.5 million to settle a whistleblower lawsuit that accused the company of violating Medicaid billing rules. The settlement was signed by U.S. Justice Department officials and the head of Paxton’s Civil Medicaid Fraud Division.

Kaufman County District Attorney Erleigh Wiley told The Dallas Morning News on Thursday that she has been investigating whether accepting Webb’s donation violated state bribery laws that limit gifts from people subject to the “jurisdiction” of a public servant. The complaint to the Texas Rangers came from the lawyer of the whistleblower who launched the investigation into Preferred Imaging, she said.

“There is an active investigation looking into that matter,” Wiley, a Republican, told the newspaper. “We are carefully and thoroughly going through every piece of evidence.”

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Paxton was charged in the summer of 2015 with two counts of securities fraud alleging that he pushed stock in a McKinney company without telling potential investors that he was being paid for the work. He also was charged with failing to register with state securities regulators in 2012.

A trial on the failure to register charge, set for Dec. 11, was delayed during a Houston hearing Wednesday, and a new date has not been set.

What makes the timing of Paxton’s trial so tricky is that even if he were to be convicted early next year, Texas election law would appear to make it impossible for the state Republican Party to replace Paxton on the ballot even if he wants to be replaced.

Yesterday, I called Eric Opiela, a Republican election law expert, former executive director of the Republican Party of Texas and, until recently, the party’s  associate general counsel, to ask him about this.

He cited the relevant section of the state election code:

Sec. 145.036. FILLING VACANCY IN NOMINATION. (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.
(b) An executive committee may make a replacement nomination following a withdrawal only if:
(1) the candidate:
(A) withdraws because of a catastrophic illness that was diagnosed after the first day after the date of the regular filing deadline for the general primary election and the illness would permanently and continuously incapacitate the candidate and prevent the candidate from performing the duties of the office sought; and
(B) files with the withdrawal request a certificate describing the illness and signed by at least two licensed physicians;o,
(2) no political party that held primary elections has a nominee for the office sought by the withdrawing candidate as of the time of the withdrawal; or
(3) the candidate has been elected or appointed to fill a vacancy in another elective office or has become the nominee for another office.
(c) Under the circumstances described by Subsection (b)(2), the appropriate executive committee of each political party making nominations for the general election for state and county officers may make a replacement nomination for the office sought by the withdrawing candidate.
(d) For the purpose of filling a vacancy, a majority of the committee’s membership constitutes a quorum. To be nominated, a person must receive a favorable vote of a majority of the members present.
(e) A vacancy in a nomination for a district, county, or precinct office that was made by primary election may not be filled before the beginning of the term of office of the county executive committee members elected in the year in which the vacancy occurs.

So, the State Republican Executive Committee could replace Paxton if he were stricken with a catastrophic illness, certified by two licensed physicians, that would keep him from filling the office, or if he were elected or appointed to fill another elective office or became the nominee for another office.

But simply being convicted of a felony would not be sufficient to enable the state party to replace Paxton as its nominee.

RALPH BARRERA/AMERICAN-STATESMAN

Opiela:

Even if he is convicted, that conviction is not final until all the appeals are exhausted, so he is not disqualified for running for office until the conviction is final. He is not ineligible for the office by virtue of the conviction itself.

We had this issue with Tom Delay back in 2006 when we tried to replace him on the ballot and it went all the way to the Fifth Circuit, and they ruled we could not replace him.

Hand out photo of Tom DeLay. Former U.S. House Majority leader Tom DeLay was sentenced to prison for convictions on charges of conspiring to launder corporate money into political donations during the 2002 elections. CREDIT: Travis County Sheriff’s Office. Received 01/10/11 for 0111roundup.

From Ralph Blumenthal in the New York Times, on July 6, 2006.

Former Representative Tom DeLay must stay on the Texas ballot in November despite his efforts to be declared ineligible so Republicans can select a stronger candidate, a federal judge ruled today.

The decision, by Judge Sam Sparks in Austin, threw the race for the 22d Congressional District into new turmoil and gave victory to Democrats fighting to keep one of their most reviled opponents in the running. It enjoined the Texas Republican chairwoman, Tina J. Benkiser, from efforts to choose a new candidate.

But a lawyer for the Republican Party, James Bopp Jr., said an appeal would be quickly filed with the Fifth Circuit Court of Appeals in New Orleans.

Mr. DeLay’s office reiterated that he had no intention of running for a 12th term from his longtime home in Sugar Land outside Houston.

After edging out an unusually crowded field of opponents in the March primary, Mr. DeLay was scheduled to face former Representative Nick Lampson, the Democratic nominee. Mr. Lampson’s office, in a statement, hailed today’s ruling and said, “Regardless of whom he ends up running against, Nick Lampson is going to use this time to get his positive message to voters.”

State Republican officials have been meeting to select a replacement for Mr. DeLay since his announcement in April that he was withdrawing from the race and his resignation from Congress on June 9.

In its statement, Mr. DeLay’s office said: “Tom DeLay looks forward to the correct decision being rendered by the 5th Circuit Court of Appeals. As a resident of Virginia, he cannot lawfully be on the ballot in November. It is unfortunate that the voters of the 22nd District of Texas are the ones who bear the brunt of Judge Sparks’s ill-advised decision, but it is highly likely that it will be overturned and the voters will have a Texas Republican on the ballot who will defeat Nick Lampson.”

From Ballot Access News in August 2006:

On August 3, the 5th circuit agreed with the U.S. District Court, that Texas Republicans may not name a new candidate for U.S. House in the 22nd district. Tom DeLay is still free to withdraw, but if he does, the Republican Party won’t have a nominee. Texas Democratic Party v Benkiser, 06-50812.

From the Statesman’s Laylan Copelin, on August 8, 2006.

The Republican Party’s legal bid to replace retired U.S. Rep. Tom DeLay on the November ballot has come to an end.U.S. Supreme Court Justice Antonin Scalia on Monday denied the GOP’s bid to block lower court rulings that the Republican Party of Texas could not replace DeLay, who retired from Congress in June and testified that he intended to live and work indefinitely in Virginia.

The Texas Democratic Party had sued to block a DeLay replacement, arguing that state GOP Chairwoman Tina Benkiser and DeLay had concocted his move to Virginia to circumvent state law and the U.S. Constitution. U.S. District Judge Sam Sparks of Austin agreed, and a panel of judges on the 5th U.S. Circuit Court of Appeals upheld his decision.

James Bopp, the lawyer for the Republican Party, said Scalia’s decision is the end of the legal line.

“The Democratic Party has been successful in picking the nominee of the Republican Party, ” Bopp said. “It remains to be seen if they are happy with that.”

DeLay has not said whether he would mount an active campaign. He could withdraw from the ballot, but the Republican Party could not replace him. Insiders expect him at least to keep his name on the ballot to force his Democratic challenger Nick Lampson to spend his money on a competitive campaign.

Democratic Party officials wanted DeLay on the ballot, thinking a money-laundering indictment and fallout from investigations of Washington lobbyist Jack Abramoff give them the best chance of winning the heavily Republican district in the Houston suburbs.

Over the past year, DeLay has fallen from the heights of power in Congress.

Almost a year ago, the Sugar Land Republican was the majority leader of the U.S. House. Then a Travis County grand jury indicted him on money-laundering charges arising from his 2002 campaign activities. The felony indictment forced DeLay to resign as majority leader under the GOP rules.

DeLay easily defeated a field of challengers in the March Republican primary, but polls indicated he was vulnerable.

In April he announced that he was retiring after 21 years in Congress.

State law bars a political party from replacing a candidate after the primary unless he or she dies or is ruled ineligible.

Benkiser ruled DeLay ineligible, saying he had moved to Virginia. He presented a Virginia driver’s license, voter registration and state tax withholding documents.

But DeLay also testified that he had moved no belongings other than a car when he moved to a Virginia condo he had owned for 12 years. He also said his wife was staying in their Sugar Land home. And the Democrats, when they subpoenaed DeLay, found him in Sugar Land, not Virginia.

Sparks ruled that Benkiser’s administrative ruling could not trump the U.S. Constitution, which said a candidate for the U.S. House must be 25 years old, a U.S. citizen and an inhabitant of the state on the day he’s elected.

Cris Feldman, an Austin lawyer representing the Democrats, said the Democrats had won at every legal level.

“It’s time to move on to the election, ” Feldman said. “It’s time for Tom DeLay to decide whether to cut or run.”

So what happened?

From Larry Sabato’s Crystal Ball:

August 10, 2006 Update:

In a stunning reversal of fortune, the state GOP was denied the opportunity to replace Tom DeLay on the ballot, and instead was forced to coalesce around a write-in candidate to take on Democrat Nick Lampson in the general election. The GOP’s pick? Conservative Houston City Council woman Shelley Sekula-Gibbs, whose name isn’t particularly easy to remember or spell! We do not yet know whether Republicans will try to pour substantial sums into the race in hopes of keeping it competitive, but their odds of mounting a successful write-in bid are slim, if history is any guide. In November, the advantage must be given to the well-funded Lampson, who may well turn out to be a one-term wonder if the GOP gets its act together here in time for 2008.

And how did it turn out?

1/10/2011- Jay Janner/AMERICAN-STATESMAN – Tom DeLay leaves the Travis County Jail on Monday Jan. 10, 2011.

From Kristen Mack at the Houston Chronicle.

Democrat Nick Lampson won the bitter race to succeed former House Majority Leader Tom DeLay on Tuesday, overcoming Shelley Sekula-Gibbs’ strong write-in effort to save the seat for the Republicans.

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The 22nd was one of the most competitive House races in the country, as the GOP waged a last-minute battle to hold the seat in the Republican-leaning district after DeLay resigned from Congress.

Sekula-Gibbs, who is serving her final term on the Houston City Council, easily won the special election to fill the last two months of DeLay’s unexpired term – a Pyrrhic victory that will force Sekula-Gibbs to give up her council seat even though she lost her general election bid for the term that starts in January.

“I was prepared to do that and I’m still prepared to do that,” she said.

She was on the ballot in the special election, and defeated four other candidates. Lampson did not run in that race. Lampson and Libertarian Bob Smither were alone on the general election ballot.

DeLay had kept the seat firmly in Republican hands for 11 terms, and the district remains solidly conservative, based both on its voting record and recent polling. But with no GOP candidate on the general election ballot, the race became an uphill battle for the Republican Party.

Underdog to favorite

Lampson’s outlook went from underdog to favorite when DeLay quit Congress and courts prohibited the GOP from replacing him on the general election ballot.

Lampson is a former U.S. representative who had accumulated a multimillion-dollar war chest in anticipation of a nationally watched battle with DeLay.

The state GOP backed Sekula-Gibbs as its write-in candidate, and she mounted a strong, well-funded candidacy that included extensive television advertising showing voters how to cast write-in ballots.

DeLay trounced three challengers in March to win the GOP nomination for a 12th term. He announced his resignation in April amid a growing influence-peddling scandal that already had caused two of his former aides to plead guilty to federal charges. He also faces state campaign finance indictments in Austin, charges that he says were politically motivated.

He said he thought he could win re-election but that he did not want to be a lightning rod for Democrats to use to attack Republicans nationally.

DeLay tried to give his party the opportunity to replace him on the ballot by moving his legal residence to his condominium in Virginia while maintaining a home in Sugar Land. Republicans argued that made him ineligible to run or serve, and allowed them to replace him on the ballot.

Democrats sued to block Republicans from picking a nominee, arguing that the Texas Election Code prohibits a candidate from withdrawing from a ballot after being nominated in the party primary.

The courts agreed, leading to the write-in campaign in which Sekula-Gibbs earned the state GOP’s blessing.

Tom Delay, left, arrives at the Texas Court of Criminal Appeals in Austin, Tx., on Wednesday, June 18, 2014. DeLay was convicted in 2010 of money laundering and conspiracy to commit money laundering for participating in a scheme to influence Texas elections. But a lower appeals court ruled last year that prosecutors failed to prove their case and vacated DeLayÍs convictions. DeLay had been sentenced to three years in prison, but the punishment was put on hold pending appeal. DEBORAH CANNON / AMERICAN-STATESMAN

Opiela said Paxton would be ineligible to run for public office if he were convicted of a felony, but, as noted earlier, he would have had to have exhausted his appeals. (He could abandon his appeals and accept the conviction, but why would he do that.)

“An appeal can take, 2, 3, 4, 5 years,” Opiela said. So, even if Paxton were convicted, “Theoretically, he could serve out another term if he won the general election, but I think it does make it more difficult to win the general election.”

The election code cited by Opiela does provide another set of circumstances under which Texas Republicans could replace Paxton on the ballot if he is found guilty and withdraws from the race. That would be if  “no political party that held primary elections has a nominee for the office sought by the withdrawing candidate as of the time of the withdrawal.”

Opiela said the Democratic Party is the only other party in Texas that holds a primary to select its nominee – other, third parties, choose their nominees by convention.

But that would mean that the Democrats failed to field any candidates for attorney general, and that won’t happen.

JAY JANNER / AMERICAN-STATESMAN

Four years ago, the Democratic candidate for attorney general was Sam Houston, a Houston attorney. As I wrote at First Reading at the time, when Matt Angle put out word that Houston was going to enter the race:

Matt Angle, perhaps the key figure in orchestrating Wendy Davis’ entrance into the governor’s race, sent out an email late Friday afternoon indicating that his organization, The Lone Star Project, “has learned that highly respected Houston attorney, Sam Houston, will likely soon announce his candidacy for Texas Attorney General.”

Well, that’s good enough for me. If Matt Angle has “learned” Houston “likely will,” then Houston definitely will.

More from Angle:

Apart from having about the best ballot name any Texan might imagine, Sam Houston is a respected, highly competent attorney with deep roots in Texas. With more than 25 years of experience practicing law, Sam would enter the AG’s office with more than twice the experience as a practicing attorney than Greg Abbott when he became Attorney General.

I concluded:

That is one good ballot name. One imagines Angle now scouring the countryside for a David or Davy Crockett with ambitions to be agriculture commissioner.

Two things:

  1. Sam Houston, running a very low-profile campaign, finished just as well as Wendy Davis, conducting a very high-profile campaign. They both lost by about the same 20 points.
  2. That image of Angle scouring the countryside for a David or Davy Crockett remains a good one.

Only with a few small tweaks.

If Democrats find their Davy Crockett, they shouldn’t run him against Sid Miller for agriculture commissioner. Instead, they should run him against George P. Bush for land commissioner.

I recently heard from Dr. Davey Edwards of Alvord, who said he is going to challenge Bush in the Republican primary, in part because of controversy surrounding Bush’s stewardship of and ambitions for the Alamo, which I wrote about Sunday.

 

OK. So he’s already got “save the Alamo.” Well the Democratic Davy Crockett could come up with something slightly different. How about “Remember the Alamo: Vote for Davy Crockett.”

And then — and this is important — the Democratic Davy Crockett shouldn’t say or do anything else. Just plaster Texas with signs and bumper stickers that say “Remember the Alamo: Vote for Davy Crockett.”

And, if at all possible, find a Davy  Crockett who likes to hunt, bears a likeness to Fess Parker and doesn’t look foolish in a coonskin cap.

The Democrats still need a candidate for comptroller, right?

There have got to be countless William Travises around. At least one of them must be a Democrat, maybe a CPA who is not a convicted felon.

On Saturday Abbott, in San Antonio, boasted about his support from Hispanics and his determination that the first Hispanic governor of Texas be a Republican.

Well, Democrats, don’t take that lying down. Don’t pine over the Castro twins’ taking a pass on the race. Nominate Juan Seguín, any Juan Seguín, for governor.

But, Texas Democrats, when it comes to a candidate for attorney general, should be very, very serious about finding the most impressive and impeccably well-qualified most non-partisan candidate you can find, whether or not that candidate shares the name of an Alamo defender or other Texas hero. A woman would be especially good.

RALPH BARRERA/AMERICAN-STATESMAN

Sure, Democrats may look weak of they don’t run a “strong” candidate for governor, but nothing compared to how feckless they will appear if they don’t find a superb candidate to run against an attorney general who is headed toward trial on felony charges and whose party won’t be able to replace him on the ballot even if he is convicted.

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