      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-15-00595-CV



                                        In re Keith Judd


                     ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                            MEMORANDUM OPINION


               Relator Keith Judd, pro se, has filed a petition for writ of mandamus to compel

various actions of the Chairman of the Texas Democratic Party and the Secretary of State of Texas

in connection with the 2016 elections.1 On the present record, we will deny that relief.

               A veteran of several past campaigns for President of the United States,2 Judd advises

that he is again “a Declared Candidate” for that office in 2016, more specifically “as a Democratic

Candidate for the 2016 Primary Elections and Caucuses.” In furtherance of that effort in Texas, Judd




       1
          Tex. Elec. Code § 273.061 (Texas Supreme Court or court of appeals may issue
mandamus to “compel the performance of any duty imposed by law in connection with the holding
of an election . . . regardless of whether the person responsible for performing the duty is a
public officer”).
       2
          Not to mention multiple proceedings in the Judicial branches of our state and
federal governments. See In re Judd, No. 03-13-00073-CV, 2013 Tex. App. LEXIS 1890
(Tex. App.—Austin Feb. 27, 2013, orig. proceeding) (mem. op.); In re Judd, No. 03-12-00617-CV,
2012 Tex. App. LEXIS 10204 (Tex. App.—Austin Dec. 7, 2012, orig. proceeding) (mem. op.);
In re Judd, No. 03-11-00690-CV, 2011 Tex. App. LEXIS 9172 (Tex. App.—Austin Nov. 16, 2011,
orig. proceeding) (mem. op.); see also Judd v. Furgeson, No. 01-4217, 2012 U.S. Dist. LEXIS
162095, at *12 (D.N.J. Nov. 5, 2012) (noting that Judd has filed “hundreds of frivolous or meritless
complaints” in courts nationwide).
explains, he obtained a form from the Texas Democratic Party titled “Application for President of

the United States on the Democratic Party General Primary Ballot.”3 Among the information this

form requires of an applicant is a sworn statement that, inter alia, “I have not been convicted of a

felony for which I have not been pardoned or had my full rights of citizenship restored by other

official action.”4 Judd, who candidly acknowledges having a felony conviction for which he served

time in federal prison,5 complains that this feature of the form improperly incorporates eligibility

requirements beyond those which the United States Constitution prescribes for the Presidency

and that are the exclusive requirements for that office. He seeks mandamus relief to compel the

Secretary of State “to prescribe a proper form” for the Texas Democratic Party’s use. In turn, Judd

seeks mandamus against the Chairman of the Texas Democratic Party “to provide that form to [him]

and thereafter file and certify Keith Judd as legally qualified for placement on the [Texas] 2016

Primary Election [ballot] as a Democratic Candidate for President of the United States.”

                As his primary support, Judd refers us to the Texas Supreme Court’s decision

in LaRouche v. Hannah.6 That case arose from the efforts of another presidential candidate,

Lyndon LaRouche, to have his name placed on the Texas Democratic Party’s 1992 primary ballot.

To that end, LaRouche had timely submitted a completed application for a place on the ballot,


       3
           Judd attached a copy of this form to his handwritten petition.
       4
         At the top of the form is the instruction, “All information is required to be provided
unless indicated as optional.”
       5
          Judd is quick to add, however, that he has achieved some past electoral successes as a
presidential candidate despite being incarcerated at the time, most notably winning 13 counties and
43% of the statewide vote in the 2012 West Virginia Democratic primary.
       6
           822 S.W.2d 632 (Tex. 1992) (per curiam).

                                                  2
accompanied by the required filing fee, to the then-chairman of the Texas Democratic Party,

Bob Slagle. Although accepting this filing, Slagle thereafter refused to certify LaRouche’s name for

placement on the primary ballot, reportedly on the ground that LaRouche was ineligible for such

placement because he was a convicted felon.7 Complaining that Slagle’s refusal to certify his name

violated his constitutional and statutory rights to appear as a candidate on the primary ballot,

LaRouche sought mandamus to compel Slagle to certify his name for placement on the ballot and

against the Secretary of State to compel him to “prescribe appropriate forms and procedures to

ensure LaRouche’s certification” and accept the eventual certification.8 The Texas Supreme Court

granted mandamus to compel Slagle to certify LaRouche.9 Of particular note here, the supreme court

emphasized—and Slagle had eventually conceded—“that the United States Constitution establishes

the exclusive requirements for the office of President, and that those requirements make no reference

to criminal convictions.”10 The court denied mandamus relief against the Secretary of State at that

juncture, however, in the view that the Secretary could not have violated any non-discretionary duty

given that LaRouche had not yet been certified by Slagle.11




        7
          Id. at 633; see Tex. Elec. Code § 172.028(a) (imposing duty on chairman to certify in
writing “for placement on the general primary election ballot the name of each candidate who files
with the chair an application that complies with Section 172.021(b)”).
        8
             LaRouche, 822 S.W.2d at 633.
        9
             Id. at 633-34.
        10
         Id. at 633 (citing U.S. Const. art. II, § 1, cl. 4; Gordon v. Sec’y of State, 460 F. Supp. 1026,
1027 (D.N.J. 1978)).
        11
             Id. at 634.

                                                   3
                The Secretary of State has aided us with a response to Judd’s petition in which he

acknowledges “the Texas Supreme Court’s on-point ruling in LaRouche,” that “the United States

Constitution sets forth the exclusive list of qualifications for the Office of the President,” and that

these requirements do not exclude felons.12 In contrast, the Secretary observes, “felony convictions

are a relevant qualification” for Texas state elective offices.13 For this reason, the Secretary adds,

he has promulgated sample application forms for a place on the ballot that treat federal offices,

including President, differently from state offices.14 While the Secretary’s sample state office form

contains the affirmation of which Judd complains, the federal office form does not.15 Consequently,

the Secretary reasons, there is no justiciable controversy between himself and Judd with regard to

the “proper form” whose promulgation Judd seeks to compel through mandamus. We agree. Nor



        12
           While we also afforded the Chairman of the Texas Democratic Party the opportunity to
file a response, he chose not to do so.
        13
           See Tex. Elec. Code § 141.001(a)(4) (“To be eligible to be a candidate for, or elected or
appointed to, a public elective office in this state, a person must . . . have not been finally convicted
of a felony from which the person has not been pardoned or otherwise released from the resulting
disabilities”); cf. id. § 141.001(c) (“Subsection (a) does not apply to an office for which the federal
or state constitution or a statute outside this code prescribes exclusive eligibility requirements.”).
        14
           These forms are available at http://www.sos.state.tx.us/elections/forms/pol-sub/2-4f.pdf
and http://www.sos.state.tx.us/elections/forms/pol-sub/2-2f.pdf, respectively.
        15
         We note also that both the Secretary of State’s sample state office form and the Texas
Democratic Party presidential form have the following imprinted in the upper right-hand corner:
                                                                                        2-2
                                                        Prescribed by the Secretary of State
                                            Sections 141.031, 172.021, Texas Election Code
                                                                                     8/2015
In contrast, the Secretary of State’s federal office form bears the same designation in the upper right-
hand corner, but is numbered “2-4” rather than “2-2.”

                                                   4
has Judd identified any other asserted failure by the Secretary at this juncture to comply with a non-

discretionary duty.16

                 As for Judd’s claims against the Chairman of the Texas Democratic Party, we

conclude those are similarly premature. The filing period for the 2016 Texas primary elections does

not begin until mid-November 2015, and Judd has not yet attempted to submit (nor could submit)

an application for a place on the Texas Democratic Party ballot, let alone been refused certification

by the Chairman, let alone for the reason of his felony conviction.17 Nor, on this limited record,

can we necessarily assume that the contents of the complained-of Texas Democratic Party form

represent a determination by that party to exclude potential presidential candidates based on felony

convictions, as opposed to, e.g., some sort of staff-level clerical error in replicating the Secretary of

State’s sample forms that may ultimately be rectified as the filing period draws near.

                 Accordingly, we deny Judd’s petition without prejudice to refiling.



                                                __________________________________________

                                                Bob Pemberton, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Filed: October 21, 2015




        16
             See LaRouche, 822 S.W.2d at 634.
        17
          Cf. id. at 633 (noting that LaRouche had submitted a completed application accompanied
by the required filing fee and been refused certification).

                                                   5
