HomeTEXITTEXIT UpdatesIs The Texas GOP Violating The Law on the TEXIT Petition?

Is The Texas GOP Violating The Law on the TEXIT Petition?

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In June 2023, the Texas Nationalist Movement launched a campaign to use a virtually unknown law that would bypass the political establishment and give Texans a vote on an important question. “Should the State of Texas reassert its status as an independent nation.”

Texas is not a state with statewide citizen initiative. There is no statutory mechanism that allows citizens, by petition, to place a law before all of the voters of Texas. However, after extensive legal research, the TNM found one narrow exception. 

Buried in the Texas Election Code Sec. 172.088 was a statute that was passed in 1985 that allowed voters, by petition, to place a ballot proposition on a political party’s general primary election ballot. In short, by collecting the required information from registered voters on a form that contained the required language, obtaining 97,709 signatures from those registered voters within a 180-day window, and submitting them to the Chairman of the Republican Party of Texas by the filing deadline of December 11, 2023, at 6 PM, we could force the TEXIT question onto the Republican Primary ballot in March of 2024.

No record exists of it ever having been accomplished since the passage of the law in 1985. In our research prior to the launch of our first-ever petition campaign, we couldn’t find a single instance of it having been attempted.

Texas Election Code Sec. 172.088.  VOTER PETITION FOR REFERENDUM.  

(a)  Voters by petition may require that a proposal to include a demand for specific legislation or any other matter in a political party’s platform or resolutions be submitted to a vote in the party’s general primary election by placement on the general primary election ballot.
(b)  Subject to Subsection (c), a petition under this section must satisfy the requirements prescribed by Section 141.062 for a candidate’s petition and must state the proposal that is to be submitted.  The petition is otherwise subject to the applicable provisions of Subchapter C, Chapter 141, except as provided by this section.
(c)  A political party by rule may provide for restricting petition signers on the basis of party alignment or preference.
(d)  The petition must be filed with the state chair of the political party holding the primary to which the petition applies before the date of the regular filing deadline for candidates’ applications for a place on the primary ballot.
(e)  The minimum number of signatures that must appear on the petition is five percent of the total vote received by all candidates for governor in the party’s most recent gubernatorial general primary election.
(f)  A signer’s voter registration is not required to be in any particular territory.
(g)  The state executive committee shall prescribe the wording of the ballot language for the proposition submitted by the petition.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.  Amended by Acts 1997, 75th Leg., ch. 864, Sec. 141, eff. Sept. 1, 1997. Amended by: Acts 2019, 86th Leg., R.S., Ch. 1131 (H.B. 2640), Sec. 19, eff. September 1, 2019.

Prior to the launch of the 2023 TEXIT petition campaign, we conducted a deep dive into the statutes to determine how we could make the petition process more efficient and reach as many Texans as practicable to give them an opportunity to participate. This included multiple consultations with attorneys who reviewed the statutes and gave us guidance on the format and wording of the petition forms as well as reviewing all the mechanisms at our disposal to legally acquire signatures for the petition. 

By the end of the 180-day campaign, we had collected a total of 170,097 signatures. Of those, 30,426 were rejected by the TNM as technically defective. We processed 215 requests for the removal of signatures. This left a total of 139,456 signatures that were hand-delivered to the Republican Party of Texas headquarters on December 11, 2023, at approximately 12:05 PM. This was 33,619 signatures above the statutory minimum.

It was not until December 27, 2023, at approximately 9:00 PM, that we received word that Chairman Rinaldi had rejected the signatures. He cited only two reasons for the rejection. The first was his assertion that the signatures were not filed in a timely manner in accordance with the statute. The other was his rejection of the validity of digital signatures for the petition.

These assertions are patently false and represent a weak attempt to rob the petition signers of their lawful right to be heard on the March 2024 primary ballot. Further, his attempt to disenfranchise Texas voters is itself, a violation of the law.

The Petition Was Timely Filed In Accordance With Law

The most ridiculous argument in the rejection is that the petition was not filed in the timeframe required by law. In Rinaldi’s letter, he states:

“Regarding the first requirement, the petition was not timely filed. Section 172.088(d) prescribes that voter petitions “must be filed with the state chair of the political party holding the primary to which the petition applies before the date of the regular filing deadline for candidates’ applications for a place on the primary ballot.” TEX. ELEC. CODE § 172.088(d) (emphasis added). The regular filing deadline for the 2024 primary election in Texas was December 11, 2023. Thus, petitions must have been filed no later than December 10, 2023. The Texas Nationalist Movement delivered its petition to the Republican Party of Texas on December 11, 2023. This submission missed the statutory deadline for voter petitions.”

As an attorney and as someone with attorneys at his disposal, he should have known that, in law, if a date also specifies the time, then the time is part of the date. 

Texas Election Code Sec. 172.023 clearly states:

REGULAR FILING PERIOD.  (a)  An application for a place on the general primary election ballot must be filed not later than 6 p.m. on the second Monday in December of an odd-numbered year unless the filing deadline is extended under Subchapter C.

For the 2024 primaries, the date of the filing deadline is December 11, 2023 at 6:00 PM. This is reflected on the website of the Texas Secretary of State (https://www.sos.state.tx.us/elections/voter/important-election-dates.shtml) where, in the section titled “Important 2024 Election Dates”, a table is included that lists the date for “Filing deadline for primary candidates; filing deadline for independent candidates to file declaration of intent” as “Monday, December 11, 2023 at 6:00 PM”.

Therefore, when Section 172.088(d) states that petitions must be filed “before the date of the regular filing deadline,” it clearly means that they must be filed before December 11, 2023, at 6:00 PM. Rinaldi asserts that the code specifies an actual deadline, but for petitions, it means a deadline on the day before the actual deadline.

To make this assertion even more farcical, this would put the deadline for petition submissions on Sunday, December 10, 2023, a day on which the RPT office was closed and could not receive submissions of any sort.

This rationale is either a poor attempt at humor, legal incompetence, or a blatant act of disenfranchisement. 

The Use of Electronic Signatures In The TEXIT Petition Campaign

The TEXIT petition effort is not only novel for being the first successful use of the initiative mechanism in Texas Election Code 172.088. It is the first application of the Uniform Electronic Transactions Act (UETA) to a petition campaign in Texas.

The 77th Legislature passed UETA in 2001 to help establish a legal framework for the growing use of Internet transactions between state and local governments and citizens. It was further expanded in 2007 by the 80th Texas Legislature and passed by a near-unanimous vote. 

An “electronic signature” is defined in Texas law as “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” Tex. Bus. & Com. Code § 322.002(8). In other words, an electronic signature could be made by simply clicking a box.

A “digital signature” is a type of electronic signature that provides higher levels of security and universal acceptance than many of the ways to complete an electronic signature. A “digital signature” means an electronic identifier intended by the person using it to have the same force and effect as the use of a manual signature. Gov. Code § 2054.060(e)(1). In other words, it is considered a manual signature. Therefore, it requires more than an electronic signature. A digital signature is created by cryptographic means involving the use of two mathematically related keys.

Unless excluded in the UETA, parties can sign most agreements electronically. Lease agreements and any contract for the sale of an item can be signed electronically. Bus. & Com. Code, Chapters 2 and 2A. If a law requires a signature, an electronic signature satisfies the law unless the UETA excludes the transaction. Bus. & Comm. Code § 322.007(d).

The UETA specifically excludes certain types of transactions from using electronic signatures. Bus. & Comm. Code § 322.003(b). Items that cannot be signed electronically include wills, negotiable instruments (i.e., checks), bank deposits and collections, letters of credit, fund transfers, documents of title, and investment securities.

While the statute covers a broad range of topics related to electronic transactions, Section 322.007 of the Business and Commerce Code establishes the absolute legality of electronic signatures.

In relation to the TEXIT petition, subsections (a) and (d) are instructive.

Legal Recognition of Electronic Records, Electronic Signatures, and Electronic Contracts

(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.

(c) If a law requires a record to be in writing, an electronic record satisfies the law.

(d) If a law requires a signature, an electronic signature satisfies the law.

Added by Acts 2007, 80th Leg., R.S., Ch. 885, Sec. 2.01, eff. 4/1/2009.

Some have made the argument that this law only applies to the Business and Commerce Code since that is where this provision resides. However, the statute is clear that the section applies to any law in Texas and not any specific section or code. This is clear in the near ubiquity of electronic and digital signatures that are legally binding throughout topics spanning the entirety of Texas law.

In fact, you only need to look at the definitions and scope in Chapter 322 to establish the validity of electronic and digital signatures.

Sec. 322.002 (15) clearly states that a “Transaction” is “an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs.”

UETA further sets the scope to include all law except that which is excluded within the UETA itself.

Sec. 322.003.  SCOPE.  (a)  Except as otherwise provided in Subsections (b) and (e), this chapter applies to electronic records and electronic signatures relating to a transaction.
(b)  This chapter does not apply to a transaction to the extent it is governed by:
(1)  a law governing the creation and execution of wills, codicils, or testamentary trusts;  or
(2)  the Uniform Commercial Code, other than Sections 1.107 and 1.206 and Chapters 2 and 2A.
(c)  This chapter applies to an electronic record or electronic signature otherwise excluded from the application of this chapter under Subsection (b) when used for a transaction subject to a law other than those specified in Subsection (b).
(d)  A transaction subject to this chapter is also subject to other applicable substantive law.
(e)  This chapter does not apply to the transmission, preparation, completion, enforceability, or admissibility of a document in any form that is:
(1)  produced by a court reporter appointed under Chapter 52, Government Code, or a court reporter certified under or a shorthand reporting firm registered under Chapter 154, Government Code, for use in the state or federal judicial system; or
(2)  governed by rules adopted by the supreme court, including rules governing the electronic filing system established by the supreme court.

Claims that electronic signatures are not legally valid on the TEXIT petition run contrary to Texas law, and the rejection of signatures made in this manner is, itself, unlawful.

However, the signatures that were provided by the TNM were not simply electronic signatures under the statutory definition. They were, in fact, digital signatures. 

An integral part of the TNM’s online petition signature process was software created by a company called ApproveMe called WP E-Signature. WP E-Signature is fully UETA, ESIGN, & GDPR compliant and adheres to the strictest document signing policies in the United States. It is secure enough to be the choice of notable private sector companies and organizations like PayPal, the NBA, and Habitat for Humanity. 

Not only did the TNM’s signatures meet the legal requirements for signatures under Texas law, they far exceeded them. Unlike manually collected signatures, those who signed the TNM’s petition had to run through a multi-step process of submitting their information, digitally signing the document, and receiving confirmation of their signature with the attached document. If a signer opted out of the process or had technical issues at any point in the process, there was no signature. In short, we held ourselves and petition signers to a higher standard than the law, knowing that it would cost us signatures but would put the petition above reproach.

Is The UETA Requirement in Conflict With the Texas Election Code?

Some have argued that the Texas Election Code and the UETA are in conflict and, therefore, the provisions of the Election Code prevail. This argument is based on an interpretation of the Texas Election Code in Sec. 1.002, which states: “APPLICABILITY OF CODE. (a) This code applies to all general, special, and primary elections held in this state. (b) This code supersedes a conflicting statute outside this code unless this code or the outside statute expressly provides otherwise. Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.”

This viewpoint puts the two provisions in conflict when they are, in fact, complementary. 

Texas Election Code Sec. 141.063(b) states, “The signature is the only information that is required to appear on the petition in the signer’s own handwriting.”

Nowhere in Sec. 141 does the law specify that it must be in pen or ink, nor does it prescribe any other criteria other than it must be in the “signer’s own handwriting.” This only serves to instruct petition circulators that they can fill out all other required information for the petition, but the signer must put their own mark for the signature. Indeed, this could be as simple as block letters, a cursive representation of their name, illegible squiggles, or an X, as long as the signature is an act of volition on the part of the signer.

Therefore, there is no conflict between UETA and the requirement in Texas Election Code Sec. 141.063(b), as UETA clearly states, “If a law requires a signature, an electronic signature satisfies the law.”

A Rejection of the RPT’s Assertions Based on Law and Common Sense

The RPT’s rejection of digital signatures on the TEXIT petition is based more on politics than law or common sense. A plain reading of the law clearly shows the validity of digital signatures. The daily lives of every Texan show the validity of digital signatures. In 2007, Texas law caught up with the digital age and improved access to business, commerce, and government for every Texan. While we were previously limited in our interactions by the vast geography of Texas, 2007 ushered in an age where Texans could transact with their government and one another in an instant.

Relying on faulty and outdated guidance from the Texas Secretary of State (which was linked in Rinaldi’s letter and has since been removed from the Secretary of State’s website), the Republican Party of Texas and its Chairman have ignored the law and common sense in an attempt to disenfranchise Texans who were willing to sign their name to a petition in the belief that the law would be followed and their voices would be heard.

We understood at the outset that this petition campaign would have impacts beyond the TEXIT vote itself. We made history by bypassing a well-entrenched political establishment to place an advisory referendum on Texas self-governance on a ballot. In doing so, we again made history by successfully using a law that no one had ever used to make that referendum a reality. We were the first to use existing laws to bring the political petitioning process into the 21st century.

While there are those who might not like the subject matter of the petition or the fact that it was the TNM who looked outside the box to bring it to fruition, the law is the law. They should take the advice they are all too quick to give us: “If you don’t like the law, then change it.” Until that day comes, we will fight for every Texan who believes in the rule of law, signed the petition, and wants their voice heard on our independence.

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