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Closed Primary Rule Proposal to be Considered at Texas GOP Convention

Proposed Rule Purports to Establish Closed Texas Republican Primary, Supersede State Law

Delegates to the Republican Party of Texas State Convention in May will likely consider the issue of closed primaries after the State Republican Executive Committee voted to support a proposed rule change at their meeting last month. 

On February 10, the State Republican Executive Committee voted to recommend the proposed Republican Party of Texas Rule 46 to the State Convention Rules Committee. The proposed Rule 46 would attempt to implement a closed Republican primary in Texas, with the Republican Party of Texas tasked with managing affiliation with the Party. 

The proposed Rule 46 states:

“Rule No. 46 – Closed Primaries

In Primary Elections and Primary Runoff Elections conducted by the Republican Party of Texas, only citizens of the United States who qualify to vote as Republicans in accordance with this rule may cast ballots in those elections.

A citizen of the United States qualifies to cast a vote in a Republican Primary Election or Primary Runoff Election only if that individual presents a current and valid photo identification, has attained the age of 18, has not affiliated with another party (by voting in that Party’s primary or by taking an oath of affiliation) in the current year, and meets one of the following:

1. The individual voted in the Republican Primary Election or the Republican Primary Runoff Election in the previous biennium as shown in the records maintained by the Republican Party of Texas; or

2. The individual is registered as a Republican with the Republican Party of Texas; or

3. The individual completes and submits a written certificate of affiliation with the Republican Party of Texas no later than the first day on which a candidate may file for a place on the General Primary Election ballot for the General Primary Election.

The written certification of affiliation form will be created and approved by the State Republican Executive Committee. It will be made available for download on the RPT’s website and provided in printed form by the Republican Party of Texas to any voter who requests it. All certifications of affiliation must be signed in wet ink by the individual and physically returned to the Republican Party of Texas.

No other qualifications to vote in a Republican primary election are required or permitted. This rule supersedes any other rule or law of the State of Texas.”

Texas law currently requires major political parties to hold open primaries that any eligible voter may vote in, provided that the voter may only participate in the primary for one political Party during an election cycle. Unlike voters in some states, Texas voters do not declare a party affiliation when registering to vote. 

The proposed Rule 46 takes the legal position that the Republican Party of Texas has a Constitutional right to conduct a closed primary under the First Amendment’s guarantee of the right to freedom of association. This legal position has been supported in other states where Republican Party organizations have successfully gone to court to conduct closed primaries.

In 2011, a Federal judge in Idaho ruled in favor of the Idaho Republican Party after it sued the Idaho Secretary of State to challenge Idaho’s open primary statute. After a bench trial, Judge B. Lynn Winmill found that Idaho’s open primary law placed an unconstitutional burden on the Idaho Republican Party’s First Amendment rights. The Idaho legislature subsequently passed a law providing for closed primaries in light of the Judge’s ruling. 

Rule 46 may face legal challenges on several grounds if adopted as currently written. The proposal does not contemplate voters, such as disabled voters or military members, who are legally entitled to cast ballots by mail. The voter identification requirement in the proposed rule goes beyond what the 5th Circuit Court of Appeals allowed the State of Texas to implement after the State’s original voter identification law was successfully challenged in court.

In addition to legal hurdles, the proposed rule also presents logistical challenges. The proposed rule does not specify how the voter affiliation information to be maintained by the Republican Party of Texas will be transmitted to the counties contracted to run the primary election. Questions also remain whether counties will agree to contract with county Republican Party organizations if the Party insists on running a primary that does not comply with the Texas Election Code. 

The proposed Rule 46 also does not discuss what data security measures, if any, the Party will be required to implement with the personal information of voters that the Party would be required to collect and maintain under the proposal. In 2021, the Republican Party of Texas’ website was hacked by the hacking group Anonymous. Anonymous obtained sensitive information from the Republican Party of Texas as part of the hack, which it leaked online. 

In a campaign finance report filed by the Republican Party of Texas with the Federal Election Commission earlier this week, the Party reported just five employees on the Party’s payroll. The Republican Party of Texas reported 34 employees on the Party’s payroll on a campaign finance report filed at the same time during the 2020 election cycle. It is unclear how the Party would manage the requirements of the proposed Rule 46 at the Party’s current staffing levels. 

Republican Party leaders in South Texas have also voiced concerns about the impact closed primaries would have on the significant growth the Republican Party has experienced in that region over the last several years. 

Toni Trevino, who represents a large swath of South Texas on the State Republican Executive Committee and serves as County Chair of the Starr County Republican Party, urged caution as the Party considers moving to a closed primary. 

“The Republican Party has made significant inroads with minorities and the working class in recent years, both nationally, and in the State of Texas. My concern is that closing Republican primaries in Texas at this time will have very negative consequences, possibly resulting in losses for Republicans in general elections at the county, state and national levels. Either we are serious about building our Party by reaching out to groups who share our values but are marginalized by the Democrat Party, or we confirm that we have only been paying lip service to rake in donations and win general elections. Let’s not win the battle, only to lose the war,” said Trevino. 

Starr County made national headlines in 2020 after Donald Trump received 47% of the vote, up from just 19% in 2016. This year, 451 voters participated in the Republican Primary in Starr County, an exponential increase over the 43 who participated in 2020. 

The largest counties in the Rio Grande Valley also saw sizeable increases in Republican Primary participation this year. Cameron County saw 14,852 Republican Primary voters this year, up from 8,287 in 2020. In Hidalgo County, the Republican Primary saw 17,980 voters this year compared to 12,396 in 2020. 

While proponents of a closed primary argue that closing the primary is needed to prevent Democrats from influencing the election of Republican nominees, data experts question the impact that Democrats have in Republican Primaries. 

Derek Ryan, a prominent Republican data consultant who formerly maintained the voter file for the Republican Party of Texas, told The Texas Voice, “Only 4% of votes cast in the 2024 Republican Primary came from individuals who had most recently voted in a Democrat Primary before this year: 96,000 votes out of 2.2 million cast. In a legislative race, that is about 600 votes. If that small of a percentage of votes keeps a candidate from winning, their support amongst the base wasn’t all that strong to begin with.”

“The other side of the equation is that 4% of votes cast in the 2024 Democrat Primary came from Republican Primary voters. No one in the Republican Party seemed to complain about Republicans voting in the Democrat Primary,” added Ryan. 

Although some Republicans raised concerns that Democrats would cross over to vote for Nikki Haley against Donald Trump in the Texas Republican Primary, Trump performed better in Texas than in some Super Tuesday states with closed Republican Primaries. Trump won 77.9% in the Texas Republican Primary on Super Tuesday, compared to 77.3% in Tennessee and 56.4% in Utah, both of which have closed Republican primaries. 

The Republican Party of Texas State Convention will be held May 23-25 in San Antonio.

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