Election Laws

By: O. Douglas Weeks

Type: General Entry

Published: 1976

Updated: July 19, 2016

The election statutes of Texas during most of the nineteenth century, like those of most other states, applied exclusively to general elections and were not voluminous. In 1895 and 1903 the first attempts were made to regulate the nominating procedure of political parties. With the enactment in 1903 of the Terrell Election Law, which was amended in 1905-1906, a statewide direct-primary system for all state, district, and county elective offices was established and made mandatory for all parties that had received as many as 100,000 votes in the previous election; the requirement was later altered to 200,000 votes and afterward to 20 percent of the vote in the last gubernatorial election. Though for decades, normally, only the Democratic party was affected, the Terrell law and its numerous amendments since 1905 constitute a large part of the extensive body of statutes governing Texas elections. When Texas was a one-party state and primaries of the Democratic party determined election to statewide, district, and county offices, the primary statutes were of prime importance and were subjected to frequent legislative alteration.

The party convention system, which grew up and operated under party rules before 1905, has been perpetuated under the primary laws. Small parties are free to use it for nomination purposes as the Democrats and Republicans do. The selection of the number of delegates for each candidate at national party conventions is now based on the number of votes candidates receive in the presidential primary of each party. The nomination of presidential electors of all parties still takes place in state party conventions held in presidential election years. In June (previously September) of each even-numbered year, following the runoff primary, a state convention is required by law to canvass the returns of the primary, enact party rules, adopt a platform, and select a state executive committee. In presidential election years, the convention also selects delegates to the national presidential nominating convention, elects members from Texas to serve on the party's national committee, and elects potential presidential electors to serve if the party's presidential candidate wins. The delegates to all state party conventions are chosen from county conventions made up of delegates previously elected in precinct conventions.

From 1905 to 1907 the state convention of the Democratic party was required to apportion votes received by primary candidates for statewide offices. This rule was abandoned in the later year, and a simple plurality rule for all primary nominations prevailed until 1913, when a second or runoff primary between the two most successful candidates for the United States Senate was required in case no candidate received an absolute majority in the first primary. The runoff became compulsory for all state and district offices in 1918 and for all county offices in 1947. After the latter year a first primary was held in July and the runoff in August of even-numbered years. In 1986 the legislature approved, beginning in 1988, primary elections to be held the second Tuesday ("Super Tuesday") in March to conform with primary elections in other Southern states. The intent was to give more weight in presidential election years to Southern primaries. The strategy has seemingly worked, as presidential candidates now spend more time campaigning in Texas and the rest of the South. Runoff elections are held the second Tuesday in April. The second primary had been generally adopted in the one-party states of the South in order to ensure majority elections, since final election in most cases was really determined in the primary and the general election in November amounted to little more than a formality. It should be added that, except for a short-lived presidential-preference primary adopted in 1913 (invalidated in 1916), the primaries in Texas were required by law to be administered and paid for by the party; most of the money came from filing fees. Candidates for statewide office, including the legislature, paid $1,000. Candidates filing for local office paid varying fees, usually $3,000 to $5,000 in heavily populated counties. In 1970 a federal court decided that the method used for filing fees was a violation of the Fourteenth Amendment. The legislature responded with a law modifying fees. The same court rejected this, and in Carter v. Dies (1972) the ruling was upheld by the United States Supreme Court. In 1973 the legislature passed a law calling for a combination of state and private funding. Filing fees in 1995 were $4,000 for the office of United States senator, $3,000 for other statewide elective offices, $2,500 for United States representative, $2,000 for certain members of the judiciary, and $1,200 for others. State senators paid $1,000 and state representatives $600. Fees for county offices ranged from $2,000 to $300. In 1995 the state paid up to 60 percent of costs of primary elections, and the rest came from filing fees.

The prospective candidacy of Senator Lyndon B. Johnson for the presidency in 1960 brought about special election laws enacted for his benefit in 1959. One law moved the dates of the primary elections from July and August to the first Saturdays in May and June. This law also dispensed with the second series of precinct and county conventions previously held in the summers of even-numbered years to choose delegates to the September state convention. Beginning in 1960 one set of precinct and county conventions elected delegates who served in both the presidential and gubernatorial state conventions, the precinct conventions to be held earlier on the moved-up day of the first primary. The earlier dates for the primaries allowed Johnson to be nominated for reelection to the United States Senate and simultaneously to have his name on the ballot as a presidential candidate. Opponents of Johnson resented these permanent changes in the primary arrangements, but the legislature has not repealed the law except for its specification of the time of the primary and runoff. The law has since been used to allow Lloyd Bentsen to run for vice president and senator (1988) and in 1996 can be used to allow Republican Phil Gramm to run for president and senator. Two other significant changes in the election law occurred in 1959. First, it was required that when a voter first voted in a party primary or attended a party convention, his poll-tax or exemption certificate (now registration certificate) be stamped with the name of the party in whose primary he was participating. During that year he could not participate in the primary or convention of any other party. The other requirement was that the county executive committee, after canvassing the votes of a primary election, had to file the results with the county clerk. Previously no official returns of primaries were required to be made except to party authorities.

The suffrage laws of Texas apply to primaries as well as to general elections and have changed over the years. Formerly all persons twenty-one years of age or above were generally qualified to vote in Texas if they met residence requirements, paid a poll tax if they were under sixty years old (adopted in 1902), and were free from certain disqualifications relating to mental condition, pauperism, conviction of crime, and connection with the armed services. Woman suffrage in primaries began in 1918 and general voting rights in 1920. In 1891 cities of 10,000 or more were permitted to set up voter registration; in 1949 a general registration law was enacted to become effective if the poll tax was repealed, but it was not. To participate in a primary the voter was supposed to subscribe to the pledge, required since 1907 to be printed at the top of the primary ballot, according to which he agreed in the following general election to support all candidates nominated in the primary. This pledge has been held by the courts to involve only a moral obligation on the part of the voter, since the law forbids his being barred from any primary for past political behavior; in some cases, however, violation of the pledge did prevent the names of bolters from going on the ballot as candidates in subsequent primary elections. In 1963 many minor changes and clarifications were made in election procedures. A voter registration system was set up to go into effect if the voters repealed the poll-tax requirement in the Constitution of 1876. A temporary registration system for voting for national officials was also established, to be applied in case the poll tax was repealed for federal elections by a pending amendment to the Constitution of the United States.

The election of 1964 was the first one in which no poll tax was required to vote in federal elections, though the tax still survived for state and local elections. The Twenty-fourth Amendment to the United States Constitution went into effect that year, abolishing the poll tax as a voting requirement for president, vice president, presidential electors, United States senators, and representatives in the United States Congress. Thus, in 1964 in Texas different ballots had to be provided for voters qualified for all elections and for those voting only in federal elections. Early in 1966 the poll tax was judicially invalidated for all elections. Senate Bill 1 of the first called session of 1966 of the Texas legislature required voters to register, in person or by mail, with the county tax assessor once each year between October 1 and the following January 31. Persons eligible to register and vote had to be twenty-one years of age, residents of the state for one year, and residents of the district or county for six months. Persons over sixty who did not live in a city of 10,000 or more, or who moved, could vote without registering, except in counties of 500,000 or more population, where the county commissioners could require all voters to register. A state constitutional amendment submitted on November 8, 1966, removed the poll tax from the state constitution and embodied a requirement for annual registration. Another proposed amendment was approved, removing the year's residence requirement for persons who qualified to vote in another state for presidential electors and who had lived in Texas at least thirty days, and allowing the legislature to provide for the reenfranchisement, under certain circumstance, of former Texas voters who had been away from the state for less than one year.

In 1971 the legislature eliminated the annual registration requirement and provided, instead, a continuing registration system, whereby voters were automatically registered after participating in primaries or elections. Passage of a statute effective August 27, 1973, by the Sixty-third Texas Legislature granted persons eighteen years of age all the privileges hitherto granted those twenty-one years of age. Neither the change in registration laws nor the vote for eighteen-year-olds came voluntarily. All changes in the election laws were fought bitterly by the Texas legislature and came only after United States Supreme Court decisions against the Texas position and amendments to the United States Constitution. In 1995, once a person was registered, he remained registered unless he moved and failed to notify the voting registrar. Registration in person or by mail is usually with the county tax assessor-collector. Once a family member is registered, that member can register for other family members. Registration is allowed anytime, but one must be registered thirty days before an election. For many years the Democratic party of Texas was successful in barring African Americans from its primaries. At first this was done by party rule of the county organizations. Between 1923 and 1944, statutory provisions, followed by rules of the Democratic state executive committee and finally of the Democratic state convention, were applied to accomplish this purpose. Each provision was attacked in turn in the United States Supreme Court. Except for sustaining the convention rule from 1935 to 1944, each successive device for keeping black citizens out of the Democratic primaries was struck down. Since Smith v. Allwright (1944) no white primary rule has functioned, and African Americans have been admitted to the Democratic primaries.

Absentee voting in Texas was provided for by Article 2956 of the Revised Civil Statutes of 1925, as amended by the Forty-third Legislature. Between three and twenty days before the date of an election a qualified voter could make application by affidavit for an absentee ballot. The application to the county clerk was accompanied by a statement why the voter could not appear on election day, his poll-tax receipt, and a fee for postage. The ballot had to be marked in the presence of a notary public or qualified official and returned to the county clerk at least three days before the election. Since 1987, however, early voting (no longer called "absentee") has been allowed beginning twenty days before a first primary or general election and ten days before a runoff primary election and ending four days before any election. There are no restrictions on cause, the voter may vote at the county clerk's office or any of several designated places in the county or by mail, and the notary public is no longer required. Since early voting began, the number of early voters has increased to as much as 40 percent of the total.

Additional past features of the Texas election laws are the Australian ballot adopted early in the present century and rendered more secret by the adoption of the detachable stub in 1949, the presidential short ballot, the extensive corrupt and illegal practices provisions particularly applying to the primary elections, and the acts of 1941 and 1949 which bar Fascists, Nazis, Communists, and other subversives from the ballot and exact loyalty oaths from all elected officials and other officeholders. The requirement of a loyalty oath was found to be unconstitutional, and the other provisions are no longer part of the election code. Texas long permitted aliens to vote but deprived them of the privilege in 1918. As of 1995 Texas had no standard ballot. Ballots varied by party in the primaries and by county in the general election. Forms included paper ballots to be marked with an X, punch cards in which the voter uses a metal punch to punch a hole beside the name of the person for whom he is voting, an optical-scanner system, and automatic voting machines. All have the option to vote a straight party slate at the top of the ballot. A new election code enacted in 1951 made few important changes in the law. It did, however, provide for listing of the candidates of one party by another in general elections. The election of 1952 saw its first and only use. In that year the Republican party cross-filed all but one of the Democratic party's candidates for statewide office to make it easier for Democrats to vote for Dwight D. Eisenhower, the Republican candidate for president. This action no doubt helped the general to carry the state and caused the Democrats to demand the repeal of the cross-filing privilege and to refuse in 1954 to allow their candidates to be cross-filed. The device was repealed in 1955. In that year a new provision for reports of campaign expenditures reduced the number required to one before and one after an election. A campaign-reporting law was passed in 1973 with the primary purpose of publicizing the names of large donors. The legislature subsequently refused to make any significant changes in campaign-finance laws, and there are still no limits on the amount any individual or political-action committee may give any candidate except for someone running for a federal office, covered by federal laws. In 1957 runoffs were provided for in special elections for United States senator and congressman-at-large between the two leaders in the initial election if no candidate received a majority. Special-election runoffs were later instituted for district congressmen.

Richard H. Kraemer and Charldean Newell, Texas Politics, 5th ed. (Minneapolis: West, 1993). Practicing Texas Politics (Boston: Houghton Mifflin, 1971-).

  • Peoples
  • African Americans
  • Activism and Social Reform
  • Civil Rights, Segregation, and Slavery
Time Periods:
  • Texas Post World War II

The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this entry.

O. Douglas Weeks, “Election Laws,” Handbook of Texas Online, accessed July 06, 2022, https://www.tshaonline.org/handbook/entries/election-laws.

Published by the Texas State Historical Association.

July 19, 2016

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