Hey, Texplainer: U.S. Rep. Blake Farenthold got his name off the 2018 Republican primary ballot. How did that happen?

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Editor’s note: Today’s Texplainer is an updated version of a previous story, “U.S. Rep. Blake Farenthold is retiring. Will his name still be on the ballot next year?” 

Hey, Texplainer: Though U.S. Rep. Blake Farenthold is retiring, he didn’t announce the decision until after the deadline to remove his name from the 2018 primary ballot. So how did he manage to get off the ballot?

When U.S. Rep. Blake Farenthold announced his plans last month to step down after his current term in light of a sexual harassment scandal, it was days after the Texas deadline to remove candidates from the 2018 primary ballot. At first, the expectation was that the Corpus Christi Republican’s name would have to stay on ballots for the March 6 Republican primary.

But a late push by the state Republican Party appears likely to have changed that.

The deadline for candidates to file for a spot on the ballots for the Republican and Democratic primaries was Dec. 11. Candidates had another day to withdraw from their race, according to the Texas Election Code. Farenthold announced his intention to not run for another term on Dec. 14.

The issue quickly headed to the courts as the Texas Republican Party fought to omit Farenthold from the ballot. Though Farenthold was not expected to win the Republican primary if he remained on the ballot, some party leaders were concerned his inclusion would be a distraction and that he might draw enough votes to impact which of the six other candidates win the party’s nomination to replace him.

The embattled Texas congressman said he planned to step down after he found himself embroiled in sexual harassment allegations. The final blow came when CNN issued a report highlighting new sexual harassment allegations, including former employees describing Farenthold as verbally abusive and sexually demeaning.

In a video posted on Facebook, Farenthold acknowledged those claims and said, “I allowed a workplace culture to take root in my office that was too permissive and decidedly unprofessional … Clearly, that's not how I was raised, and it's not who I am."

Texans have voted in the past on ballots that included names of withdrawn candidates. The most famous example in recent memory is when former U.S. House Majority Leader Tom DeLay abruptly dropped his re-election bid in Texas’ 22nd Congressional District in 2006. DeLay won the Republican primary but ended his re-election bid less than a month later, after he was indicted on charges involving alleged campaign finance violations. In an attempt to get around the restrictions in state law, the Texas Republican Party tried to have DeLay declared an ineligible candidate. The Texas Democratic Party successfully sued to keep both DeLay’s eligibility and withdrawal intact.

So how did the Texas Republican Party manage to remove Farenthold from the primary ballot?

The short answer is that they violated the election code, according to state officials. But the Texas Secretary of State’s office has no authority to force someone to include a name on a primary ballot.

The day after Farenthold announced his intention to retire, the Texas GOP sued the secretary of state to keep him off the ballot, citing its constitutional right to freedom of association. Republican Party of Texas Chairman James Dickey said the party has contended it has a right to not be forced to associate with a candidate who no longer wants to run.

Days later, a lawyer for the state, Esteban Soto, emphasized that the secretary of state has no authority to force the party to turn over Farenthold's name as part of its list of all primary candidates. That argument led Texas GOP attorney Chris Gober to move to drop the lawsuit which opened an avenue for the party — in Gober's telling — "not to submit Blake Farenthold’s name and the secretary of state not to do anything about it."

In response the the Texas GOP’s plans, the Texas Democratic Party filed a lawsuit in federal court to keep the state GOP from "rigging the ballot." But the Democrats dropped the suit hours later after a judge denied their motion for a temporary restraining order. 

For someone to challenge the removal of Farenthold's name from the ballot, they would have to have to be recognized by a court as having standing on the issue, perhaps from a candidate or voter in Texas' 27th Congressional District. This, Gober said, is one the major reasons the Democratic Party of Texas' lawsuit failed.

Yet the legal saga may not be over as there is still time for someone with standing to file a suit. A successful challenge to Farenthold’s omission from the GOP primary ballot would need to be brought to the Secretary of State’s office prior to Jan. 19, the day Texas begins sending out mail-in ballots to Texas voters that requested them.

“At this point, [Farenthold’s] name is off the ballot, but after all the litigation went through, it’s important to understand there are situations in which another voter or a potential candidate could file suit to put his name back on the ballot, or force his name back on the ballot,” Sam Taylor, a spokesman for the Texas Secretary of State’s office, said.

Taylor said the state GOP party’s decision doesn’t set a legal precedent, however, because a judge hasn’t ruled to change the state’s election law.

“They can choose to violate the election code, but that doesn’t mean they’re absolved of any type of potential legal challenges,” Taylor said.

Gober also acknowledged the party's decision could draw additional legal scrutiny.

"It’s certainly a possibility, but those are legal proceedings that would play out in time with presumably a plaintiff, a defendant and people with the ability to enforce that, whereas the secretary of state’s office has made the assertion they do not,” Gober said.

Taylor said that if no one with legal standing challenges it before Jan. 19, then Farenthold’s name will remain off the ballot.

Though Farenthold likely won’t be on the ballot, plenty of other Republicans will be. Six Republicans launched bids to unseat Farenthold, most prominently former Texas Water Development Board chairman Bech Bruun, who resigned from that post in December and immediately filed to run for the congressional seat. Other Republicans running include Michael Cloud, a member of the State Republican Executive Committee and former chairman of the Victoria County GOP. On the Democratic side, four Democrats have lined up for potential campaigns.

The bottom line: By not submitting Farenthold’s name, the state GOP violated the Texas Election Code, according to state officials. However, the Texas Secretary of State’s office has no authority to force someone to include a name on a primary ballot. Assuming there’s no legal challenge to the state GOP’s move before Jan. 19, Farenthold’s name will remain off the ballot.