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Attorneys for the state and the McLennan County Democratic Party will argue before the Texas Supreme Court on Wednesday that a veteran Waco judge can’t be the Democrats’ nominee in November because he voted in the March Republican primary. At issue in State of Texas, et al. v. David L. Hodges is the constitutionality of Texas Election Code � 162.015, which prevents a person who votes in one party’s primary from being a general election candidate for a different party. The Texas Supreme Court is hearing the case on a direct appeal by the state, the McLennan County Democratic Party and Waco attorney John Cullar, the party’s county chairman. Hodges, judge of Waco’s County Court at Law No. 1 for the past 20 years, sued the party after he was declared ineligible to be on the general election ballot under � 162.015 — the so-called “sore loser” law. R. Coke Mills, an attorney representing McLennan County Democratic officials, says the party didn’t set out to kick Hodges off the ballot. The party took action after the Texas secretary of state’s office found him to be ineligible, says Mills, a partner in Waco’s Mills, Cullar & McLeod. Hodges won the first round in the legal fight. In June, 19th District Court Judge Ralph T. Strother of Waco ruled that � 162.015 of the code is unconstitutional as applied to Hodges’ situation because it restricted his right to vote. Strother’s final judgment, filed on June 5, doesn’t say whether he found the election code provision in violation of the U.S. Constitution or the Texas Constitution. “The judge found it unconstitutional, but he never said which constitution it violates,” Mills says. Hodges voted in the Republican primary to support his Sunday school teacher in a contested race for a district court bench, according to a brief filed on his behalf. Waco attorney Roy Barrett, who represents Hodges, says the judge didn’t feel a need to vote in the Democratic primary because he was unopposed. “He had no Democratic opponent. Nobody filed for his place as a Republican. He was, in effect, a shoo-in,” says Barrett, a shareholder in Waco-based Naman, Howell, Smith & Lee. The party alleged in its brief that Hodges was trying to “effect or manipulate” the outcome of the Republican race for the district judgeship by voting in the GOP primary. The brief filed for Hodges argued that there is no evidence that he organized a switch of blocs of votes from one party to the other to affect the outcome of the GOP primary. The brief also contended that � 162.015 imposes a “severe restriction” of the right to vote in primary elections of anyone seeking to be on the general election ballot, including independent candidates. “This restriction on voting in primaries by the whole class of persons seeking access to the general election ballot is a restriction on the right to vote, not just a minor limitation on the time, place or manner of voting,” Hodges’ brief said. The Texas office of the attorney general, which intervened in the case, said in a brief that the Election Code provision did not restrict Hodges from voting in the Republican primary. “It is his candidacy that is burdened as a result of that vote, and candidacy has never been deemed a fundamental right,” the brief said. But Hodges’ brief said the code doesn’t prohibit elected officials who won office as nominees for one party from voting in the other party’s primary in election years when their offices aren’t on the ballot. PREVENTING CONFUSION U.S. District Judge James Nowlin of Austin upheld the constitutionality of � 162.015 in 1996, when a third party attempted to nominate Pat Buchanan, who already had lost the Republican presidential primary to Bob Dole. Like Hodges, the plaintiffs in National Committee of the U.S. Taxpayers Party v. Garza argued that the sore loser law abridged their fundamental rights as voters. Nowlin held that the state’s interest in “preventing factionalism, intra-party feuding and voter confusion” outweighs the minimal burden the law places on the third-party voters’ rights. Douglas Laycock, a professor who teaches free speech and other constitutional issues at the University of Texas School of Law, says U.S. Taxpayers Party presents a much stronger state interest in having the sore loser statute than Hodges. The state’s interest in having Hodges declared ineligible to run as a Democrat because he voted in the Republican primary is “pretty symbolic,” he says. “Even if every candidate [on the Democrats' ballot] had voted in the Republican primary, that would have been only 20 votes,” Laycock says. But Laycock says a party has some right to insist that its candidates be party members. “There’s something to be said here that the Democratic Party has a right to say he can’t be a candidate if he voted in the Republican primary,” he says. If the Texas Supreme Court reverses the trial court’s ruling that the law is unconstitutional, the executive committee of the county Democratic Party will pick the nominee, who will run unopposed.

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