Summary
dismissing original proceeding challenging rejection of application for place on the ballot as moot because early voting by mail had already begun
Summary of this case from In re LopezOpinion
No. 05-17-00330-CV
04-07-2017
IN RE SANDRA CRENSHAW, Relator
Original Proceeding from the City of Dallas Dallas County, Texas
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Boatright
Opinion by Justice Lang-Miers
In this original proceeding, relator complains that the Dallas City Secretary rejected relator's February 17, 2017 application and petition to appear on the May 6, 2017 ballot for the office of Dallas City Council, District 3. Relator seeks mandamus relief to direct the City Secretary to accept relator's application and petition, to certify her name on the ballot, and to redraw for ballot positions. Her petition comes too late, however, because the election process has begun.
It is well established that an election contest becomes moot and the issue is no longer justiciable once the election process begins. Polk v. Davidson, 145 Tex. 200, 204-05, 196 S.W.2d 632, 634 (1946) (holding that appeal was moot where it would be "utterly impossible" to dispose of the merits in time to have the ballot printed with the appellant's name by the designated start of absentee balloting); Bejarano v. Hunter, 899 S.W.2d 346, 352 (Tex. App.—El Paso 1995, no writ) ("Where voting has begun, we believe the rights of the voters to an accurate, reliable ballot must override [candidate's] right to challenge his opponent's insufficient application for a place on that ballot.").
An election commences when absentee balloting begins. Lerma v. Ramon, 760 S.W.2d 727, 730 (Tex. App.—Corpus Christi 1988, no writ) (citing Skelton v. Yates, 131 Tex. 620, 119 S.W.2d 91 (1938) and Bd. of Trs of the Tobasco Consol. Indep. Sch. Dist. v. Edwards, 311 S.W.2d 872 (Tex. Civ. App.—San Antonio 1958, no writ)). Once absentee balloting begins, issues regarding the validity or invalidity of a candidate's application become moot and are no longer justiciable because any judgment by the reviewing court on those issues would not be rendered in time for election officials to print absentee ballots and make the ballots available to voters by the statutory deadline. Smith v. Crawford, 747 S.W.2d 938, 939-40 (Tex. App.—Dallas 1988, orig. proceeding) (challenge filed one day prior to beginning of absentee voting is moot; any order entered would interfere with orderly process of election); Law v. Johnson, 826 S.W.2d 794, 796-97 (Tex. App.—Houston [14th Dist.] 1992, no writ) (contest to candidacy is moot when contest cannot be tried and final decree issued in time for it to be complied with by election officials).
Section 86.004 of the election code provides that early voting by mail is to begin on the 45th day before the general election. TEX. ELEC. CODE ANN. § 86.004 (West Supp. 2016). Under section 86.004, early voting by mail began for the May 6, 2017 election on March 22, 2017. TEX. ELEC. CODE ANN. § 86.004 (West Supp. 2016). The Texas Secretary of State's 2017 election calendar sets March 22, 2017 as the deadline to mail early voting ballots for the May 6, 2017 election. Relator filed this original proceeding on April 3, 2017, twelve days after early voting by mail began. Because absentee balloting has begun, the election process has commenced and relator's challenge to the rejection of her application and petition is moot. See, e.g., Sepulveda v. Medrano, 323 S.W.3d 620, 626 (Tex. App.—Dallas 2010, no pet.) (appeal moot because early voting by mail had begun); see also Price v. Dawson, 608 S.W.2d 339, 340 (Tex. Civ. App.—Dallas 1980, no writ) (election contest moot because absentee balloting began during the pendency of the appeal); Lerma v. Ramon, 760 S.W.2d 727, 730 (Tex. App.—Corpus Christi 1988, no writ) (holding that appeal to have name placed on the ballot became moot when absentee balloting began). Accordingly, we dismiss relator's April 3, 2017 petition for writ of mandamus as moot.
https://www.sos.state.tx.us/elections/laws/may-6-election-calendar-2017.shtml#March22 (last visited April 6, 2017).
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 170330F.P05