Friday, September 24, 2010


THE PEÑA CASE

If anyone knows how to get a hold of Peña, will they make sure he reads this. He will not understand it, but maybe someone he knows can explain it to him. He has this won on a mandamus. The question is, can he find someone who can explain this to him. Trust me, the Texas Supreme Court is looking for a strong case to expose the stealing of mail ballots by Democrats.  This is the case.

In preparing this I remembered a constitutional amendment from several years back. In Texas there is no formal election in uncontested races. This is important to the Peña case because in that there is no Republican running against Hernandez, there is no election. The candidate is simply deemed elected. The entire rationale used by the Court of Appeals to Dismiss Peña’s appeal is bogus. He needs to take this on an immediate mandamus, but he will not. I have zero confidence in Peña’s legal skills.

“County and Precinct Candidates

As county clerk/elections administrator, you have the authority to print your uncontested county and precinct candidates as declared elected. If you choose to print your ballot this way, you will make a declaration that those candidates are uncontested and duly-elected. Enclosed is a sample form to use. You do not need to file this with the commissioners court, but you must keep it with your other election records. At the local canvass, you will issue a certification of election to these candidates; however, the County Judge will continue to issue certificates to those candidates who won the election and were contested.
If you choose to print your ballots this way, you do not include a voting space but merely list all uncontested candidates at the end of your ballot under the heading “Unopposed Candidates Declared Elected.”

http://www.sos.state.tx.us/elections/laws/2procedures.shtml

The court of appeals held the following: “It is well-settled Texas law that, where a contest between candidates for nomination in a party primary election cannot be tried and a final decree cannot be entered in time for election officials to comply with the statutory deadlines for preparing for and conducting the general election, the election contest becomes moot and the issues no longer justiciable”

http://www.13thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=18872

Inasmuch as there is no election because Hernandez will be deemed the winner without an election, the court of appeals’ entire ruling is bogus and consistent with this court of appeals contempt for the law.

Any case involving elections must begin with Anderson v. Celebrezze

The court in summarizing its reasons for giving Anderson access to the ballot said the following:

“We began our inquiry by noting that our primary concern is not the interest of candidate Anderson, but rather, the interests of the voters who chose to associate together to express their support for Anderson's candidacy and the views he espoused. Under any realistic appraisal, the "extent and nature" of the burdens Ohio has placed on the voters' freedom of choice and freedom of association, in an election of nationwide importance, unquestionably outweigh the State's minimal interest in imposing a March deadline.

The judgment of the Court of Appeals is

Reversed. “

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=460&invol=780

You will note the entity the Supreme Court in effect protected in the Anderson case was “The People.” Elections belong to the people, and not the candidates. Not that a meaningful understanding of literary terms matter at this point, but poetic justice is not when an innocent party is punished for the acts of another. The people are the victim here, not Peña. If anything Peña aided Hernandez in his victimization of the people, by being a less than competent lawyer in this case.

I warned him at the hearing he needed to take a mandamus against the judge during the trial. There was nothing anyone could tell him or his lawyer second chair. Like most lawyers there was no reasoning out a strategy based on the case law and reality. With lawyers and judges it is always the same, “let’s wing it an hope for the best.”

On a side note, anyone interested in ballot access needs to review Anderson. It basically turns Texas’ ballot access laws on its head. But I will tell you, in each and every case wherein I have raised Anderson the appellate courts have done what they have always done - they simply pretend it was not raised. They cannot get around the clear holding in Anderson, so they simply pretend it has not been raised in the argument.

With the exception of one case, the Court of Appeals relied 100% on cases where predated what appears to be a change by the Texas Supreme Court. I will get there. But what is really clear is, the Texas Constitution has changed concerning uncontested races. This in effect makes the argument about absentee ballots etc bogus. Uncontested candidates are deemed the winner, thereby making a ballot meaningless.

“To give effect to the ruling announced by the Court of Civil Appeals in this case would be to take from the person shown on the face of the returns to have received a majority of the votes cast the valuable vested property right resulting therefrom without giving him the full and final judicial hearing provided by law. Obviously, to do that would be to take from him his property without due process of law.”

Taylor v. Nealon, 120 S.W.2d 586, 588 (1938)

This case relied upon by the Corpus Christi Court of Appeals has two important holdings. One, candidates have a property right in elections. This is important because it raises Due Process questions and access to the federal courts for violation of their Due Process Rights. Second, and this may be key to an appeal by Peña - not only is the appeal moot, the trial court ruling was moot as a violation of Taylor’s Due Process right to is property interest in the election. Restated, via mandamus the Supreme Court threw out the trial court ruling as a violation of Taylor’s rights. In effect Taylor who was thrown out by the court of appeals as having filed a moot case, won when the Texas Supreme Court via mandamus rule that to allow the trial court ruling to stand would violate Taylor’s rights.

Peña stands in the same shoes as Taylor. By traditional case law his case may be moot, but if the trial court violated his rights, its ruling is moot via mandamus. I can assure you, having met Peña and his co-counsel, this is all well beyond their critical thinking skills.

Now consistent with the Anderson case above, the Texas Supreme Court has begun to question any rule which says, time can allow for a court or person to deny someone access to the ballot. The key to these decisions is, the need to print ballots did not stop the candidates right to fight for access to the ballot. This entire notion has now been rejected by the Texas Supreme Court. This is where Peña can win via a mandamus.

“The fact that the printing of ballots has begun does not extinguish LaRouche's right to appear on those ballots. At least until absentee balloting has actually begun, this court is obligated to enforce the constitutional and statuory provisions governing access to the ballot if possible.”

LaRouche v. Hannah, 822 S.W.2d 632, 634 (Tex.1992).

“The Secretary of State maintains that we would effectively nullify the deadlines created by the Election Code by granting mandamus relief. To the contrary, by today's opinion we affirm the mandatory nature of the important duties placed upon election officials by section 145.037 of the Election Code. Moreover, the Secretary of State's concern is not unique to this case, but is equally present in the cases we have decided involving candidates for primary elections. In LaRouche, for example, we ordered the Democratic party chair to certify a candidate only forty-seven days before the primary election. 822 S.W.2d at 634. Under section 172.028 of the Election Code, certification was to have occurred no later than the fifty-seventh day before the election. We noted there that "[t]he fact that the printing of ballots has begun does not extinguish LaRouche's right to appear on those ballots." Id. (emphasis added). Instead, we gave precedence to ballot access”

Davis v. Taylor, 930 S.W.2d 581, 583 (Tex.1996)

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