Justice John Devine
Justice Brian Walker
The Texas Supreme Court has denied a petiton for writ of mandamus filed by a Fort Worth Court of Appeals justice who is seeking to unseat incumbent Justice John Devine.
In re The Honorable Brian Walker (No. 24-0016; January 11, 2024) arose from Justice Walker’s effort to compel the chair of the Texas Republican Party to withdraw approval of Justice Devine’s ballot application. When a candidate for the Court files an application for a place on the ballot, the candidate must also submit a petition with fifty signatures from each court of appeals district. Justice Devine filed his application and petition on November 14, 2023. The party chair accepted the application on December 1. Walker filed his application and petition on December 4. The chair accepted the application on December 14 and certified both candidates to the secretary of state for placement on the ballot. On December 27, however, Walker sent a letter to the party chair challenging the validity of certain signatures on Justice Devine’s petition and requesting the chair to withdraw acceptance of Devine’s application. When the chair did not respond, Walker sent another letter on January 5. Again receiving no response, Walker filed an original petition for a writ of mandamus with the Court.
The Court denied the petition. First, the Court determined that Walker’s petition was not timely filed because he waited until the filing deadline had long passed to challenge Devine’s signatures (some of which also appeared on Walker’s own petition). As the Court has repeatedly held that candidates should have the opportunity to cure defects in their ballot applications, the Court held that the lateness of the filing precluded that opportunity in Devine’s case. Under equitable principles, which the Court has determined should promote maximum ballot access, the Court concluded that Walker “slumbered on his rights,” and that his attempt to remove Devine from the ballot did not maximize access, but “impeded” it. The Court further rejected Walker’s argument that a 2011 statute enacted by the Legislature, which bars a candidate from amending and an election official from accepting an amendment to a ballot application or petition filed in lieu of a filing fee, applied in this case. The Court pointed out that the statute does by its terms apply to an application and petition filed in addition to a filing fee, as is the case here.
We think the Court continues to show great wisdom in staying out of matters best left to the voters. Kicking somebody off the ballot should only be done if a candidate has a fair opportunity to remedy a deficiency and simply doesn’t do it. Of course, that won’t stop people from trying.
