The state party plans to limit primaries to registered Republicans and keep elected officials it censured off the ballot. It’s unclear if it can without legislative approval.

By James Barragán, The Texas Tribune

Republican voters in Texas sent a strong message this primary season about their expectations for ideological purity, casting out 15 state House GOP incumbents who bucked the grassroots on issues like school vouchers or the impeachment of Attorney General Ken Paxton.

At the same time this spring, the party itself has been making moves beyond the ballot box to keep its elected officials in line.

At its biennial convention last month, the Texas GOP tried to increase its party purity by approving two major rules changes: One would close the Republican primary elections so that only voters the party identifies as Republicans can participate. The other would bar candidates from the primary ballot for two years after they had been censured by the state party.

Jon Taylor, a political science professor at the University of Texas at San Antonio, said the moves are clear political shots by the increasingly dominant right wing of the party to root out dissenters and shape the party in its image.

“It says something about this battle, this civil war that’s broken out in the Republican Party of Texas that one side has gotten so concerned that they haven't been able to solidify their control of the party that they want to close their primary,” he said.

But the ideas have drawn pushback from inside and outside the party, with many questioning whether the GOP has the power to enact them without action from the state Legislature.

James Wesolek, a spokesperson for the Republican Party of Texas, said the party will be pursuing the policies regardless. He added that “an overwhelming majority” of Republican voters supported the ideas when they were included as propositions in the GOP primary this year.

“We hope the legislature takes action, but we will move forward as our rules dictate,” Wesolek said in an email last week.

Questions remain about how that would work.

Eric Opiela, a longtime Republican who previously served as the state party’s executive director and was part of the rules committee at this year’s convention, said moving forward on closing the primary without legislative action would lead to legal challenges.

Because party primaries are publicly financed and perform the public service of selecting candidates for elected office, they must adhere to the state’s election law, said Opiela, who has also served as a lawyer for the state party.

Currently, any voter can participate in a Democrat or Republican primary without having to register an affiliation. Without a change to state law, the Texas GOP could open itself to liability if it barred voters from participating in its primary elections, Opiela said.

Under the rules approved by the GOP, a voter would be eligible to cast a ballot in a primary if they voted in a GOP primary in the past two years or submitted a “certificate of affiliation with the Republican Party of Texas” prior to the candidate filing period for that election. They also could register with the state party, though the party hasn’t yet unveiled a process to do so.

A voter under 21 could also vote in the primary if it were their first primary election.

But critics are concerned that the party is underestimating the amount of work required to vet a person’s voting history. And Opiela also said that there are concerns about how to provide proper notification to new voters, especially military voters, who might have recently moved into the state and are not covered under the proposal as written. He said such concerns are why these changes should be left to the Legislature, where lawmakers can consider obstacles to implementation and come up with solutions.

“I don’t know that the process was given much thought,” said Opiela. “Those of us who have run an election know that this isn’t easy to pull off.”

Texas is among 15 states that currently have open primaries, according to the National Conference of State Legislatures. Ten states currently have closed primaries.

Closed primaries are a particularly hot topic in the GOP due to frustration among some in the conservative grassroots over House Speaker Dade Phelan’s primary runoff victory.

Phelan oversaw the passage of major conservative victories including restricting abortion and loosening gun laws in recent years. But he has become a target of the hard right for failing to pass school voucher legislation, appointing some Democrats to chair legislative committees and presiding over the impeachment of Paxton, who is a darling of the hard right.

He finished second in his March primary, but won his primary runoff against right wing candidate David Covey by fewer than 400 votes. Covey and his supporters blamed Phelan’s victory on Democratic voters who crossed over into the GOP primary runoff to vote for Phelan.

It’s difficult to say whether that’s true; Texas doesn’t track party registration. About 4% of the people who voted in the GOP primary this year had most recently voted in the Democratic primary, according to data compiled by elections data expert Derek Ryan, a Republican. But party leaders, such as recently departed party Chair Matt Rinaldi, have pointed to the Phelan race as a reason for a need for change.

“The time is now for Republicans to choose our own nominees without Democrat interference,” Rinaldi said in May.

Taylor, the UTSA professor, said the push to close the primaries was in line with the right wing’s push to force GOP candidates to follow the party line.

“You’re engaging in a form of ideological conformity, you’re demanding 100% fealty to the party,” he said.

But Daron Shaw, a political science professor at the University of Texas, pushed back against those crying foul.

“It is completely unclear to me how it is the ‘right’ of a voter in Texas, particularly one that does not identify as a Republican, to vote in the selection of Republican candidates,” he said. “Ultimately, a party is a private association and if it chooses to select extreme candidates, then presumably the general electorate will react accordingly.”

The rule to bar candidates who had been censured by the state party has also been met with skepticism.

Opiela said that if a candidate turned in an application that otherwise met the requirements for running for office, a court would likely order the party to allow the candidate on the ballot. He also said the provision could open up precinct and county chairs to criminal liability for rejecting applications that met the requirements.

The state party rule tries to cover for that potential liability by stating it would provide legal representation for any party official who is sued for complying with the rule.

Asked by The Texas Tribune to assess the legality of the idea, Rick Hasen, a UCLA professor and election law expert, called it “dicey.”

Taylor, from UTSA, said the move was also a pretty transparent message to elected officials like Phelan and U.S. Rep. Tony Gonzales to fall in line. Phelan was censured in February for overseeing Paxton’s impeachment and appointing Democrats as committee chairs. Gonzales was censured for supporting a bipartisan gun law in the wake of the 2022 Uvalde shooting, which occurred in his district, and his vote for a bill that codified protections for same-sex marriage.

The censure rule in particular has been denounced as undemocratic, an increasingly common criticism from the GOP’s loudest critics. At the same party convention, the state party changed its platform to call for a new requirement that candidates for statewide office must also win a majority of votes in a majority of Texas’ 254 counties to win office, a model similar to that of the U.S. Electoral College.

That proposal, which represents the official position of the party but does not have any power of law, has been panned as unconstitutional.

“There’s a very good argument that such a system would violate the Constitution as interpreted by the Supreme Court,” Hasen said.

Under the proposal, the 4.7 million residents of Harris County would have the same voting power as the 64 residents of Loving County.

“It’s basically a tyranny of the minority,” Taylor said. “This is designed to potentially go a step further in nullifying the concept of one person-one vote.”

The proposals come even as the GOP has dominated Texas politics for decades, and the hardline conservative movement continues to grow its influence. Brian W. Smith, a political science professor at St. Edward’s University in Austin, questioned the moves on a political level.

“Texas is already gerrymandered to elect ideologically pure candidates. We’re not seeing a lot of Republicans or Democrats moving to the middle to attract a broad swath of voters,” he said. “The Dade Phelans of the world are not winning because of independents or Democrats, they’re winning because they’re more popular among Republicans than their opponents.”