Texas Writ of Mandamus Form

PLAINTIFF’S ORIGINAL PETITION AND EMERGENCY APPLICATION FOR WRIT OF MANDAMUS AND INJUNCTIVE RELIEF

Cause No.

PLAINTIFF’S ORIGINAL PETITION, EMERGENCY APPLICATION FOR WRIT OF MANDAMUS AND INJUNCTIVE RELIEF

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW Plaintiff Candace Taylor (“Ms. Taylor”) and files this Original Petition and Emergency Application for Writ of Mandamus and Injunctive Relief against Defendants, Hope Andrade, Secretary of State of Texas (the “Secretary”) and Steve Raborn, Tarrant County Elections Administrator (“Raborn”) (the Secretary and Raborn may be referred to collectively as “Defendants”), and for same show the Court as follows:

I. JURISDICTION AND VENUE; SERVICE OF PROCESS

This Court has jurisdiction pursuant to TEXAS ELECTION CODE §§ 273.061 and 273.081. The Secretary of State of Texas may be served with process at . Steve Raborn, Tarrant County Elections Administrator, may be served with process at .

II. REQUEST FOR EXPEDITED HEARING

Because of the upcoming deadlines relating to candidacy for the upcoming general election, scheduled for , the necessity of resolving the issues that are the subject of this Petition is urgent, and Plaintiff requests that the Court set this matter for hearing on an expedited basis. The deadline for submitting a candidate’s name for inclusion on the ballot is , which Plaintiff Candace Taylor has already done, as evidenced by the letter from the Secretary of State, rejecting Ms. Taylor’s application, which is attached to this Petition as Exhibit A. The deadline for certifying the ballot is on or about , a date after which Defendant's will argue adding a candidate to the ballot for the 432nd District Court will be moot.

III. FACTUAL BACKGROUND

1. Plaintiff Candace Taylor is an attorney licensed to practice law in the State of Texas, having been granted her law license in . Ms. Taylor meets all of the qualifications for a candidate for public office pursuant to Section 141.001 of the TEXAS ELECTION CODE.

2. In 2009, a new criminal district court was created in Tarrant County, Texas. This was the 432nd District Court, and the initial Judge of the court was , who was appointed by Governor Rick Perry in accordance with Texas law governing the filling of judicial posts in newly created courts between elections. Judge Gonzalez’s term is set to expire, and the position will be filled by the winning candidate in the general election this coming November.

3. In March 2010, the Republican and Democratic Parties each held primary elections to determine the parties’ respective choices for candidates to be placed on the ballot for the general election scheduled for (hereinafter, the “General Election”). Ms. Taylor was aware that the Republican nominee for the 432nd District Court was , whom Ms. Taylor believed was a highly qualified candidate, and that Mr. Zachry would win the primary election against Judge Gonzalez.

4. Mr. Zachry did, in fact, defeat Judge Gonzalez in the primary, and was to have been the Republican candidate for the judgeship for the 432nd Court in the General Election. The Democrats and Ms. Taylor, not wanting to run a candidate against Mr. Zachry, were content for Mr. Zachry to run unopposed in the general election.

5. Unfortunately, Mr. Zachry was killed in a tragic boating accident shortly after the primary election. On , Mr. Zachry’s boat capsized on Aquilla Lake, and Mr. Zachry was subsequently pronounced dead. Mr. Zachry’s death created a vacancy in the nominees for judge of the 432nd District Court in the November General Election. As Mr. Zachry was to have been unopposed, his passing left no candidate for the position.

6. As a further result of Mr. Zachry’s untimely death, Plaintiff Candace Taylor (and Democratic Party officials of Tarrant County) now faces the prospect of having the Republican Party offer a replacement for Mr. Zachry. In fact, the Republican Party has named Judge – the very candidate whom Mr. Zachry defeated in the March primary - as the replacement for Mr. Zachry. Neither Ms. Taylor nor Democratic Party officials finds Judge Gonzalez to be a satisfactory replacement nominee, and do not believe Judge Gonzalez is the best candidate to hold the position of Judge of the 432nd District Court.

7. On , the Tarrant County Democratic Party Executive Committee, a quorum being present, nominated Candace Taylor as the Democratic Party for the office of 432nd District Court. Tarrant County Democratic Party Chairman immediately certified the nomination and forwarded Candace Taylor's nomination to the Texas Secretary of State.

Ms. Taylor’s name was submitted to the Texas Secretary of State in accordance with Texas law and procedure. See Tex. Elec. Code §143.037. A copy of a letter from Mr. Stephen C. Maxwell, Tarrant County Democratic Party Chair, to the Secretary is attached hereto as Exhibit A. The Secretary, however, has rejected Ms. Taylor as a candidate, stating that she is not qualified to run in the General Election against Judge Gonzalez for the sole reason that Ms. Taylor was not selected as a candidate by the Democratic Party in its March primary elections. A copy of an August 3, 2010 letter from the Secretary to Mr. Maxwell, denying certification of Ms. Taylor as a nominee, is attached hereto as Exhibit B.

8. Plaintiff Candace Taylor believes the Secretary of State’s position on this issue is unfounded, and therefore brings this action seeking an order from this Court that Candace Taylor be placed on the ballot as a judicial candidate for the 432nd District Court in the General Election scheduled to be held in the State of Texas on

IV. ARGUMENT AND LEGAL AUTHORITIES

9. The Secretary relies on Sections 145.035 and 145.036 of the Texas Election Code (the “Code”) as the basis for denying Ms. Taylor a place on the General Election ballot.

10. The Secretary contends that, because Ms Taylor was not a candidate for the 432nd judicial post in the Democratic Party’s primary election, Ms. Taylor may not now be listed as a candidate for the position on the General Election ballot.

The Secretary’s Position Violates the Texas Constitution

11. Article 5, Section 28 of the Texas Constitution states that, in the event of a vacancy in the office of judge of a district court, any such vacancy will be filled by the Governor of Texas, and the appointee shall serve until “the next succeeding General Election….”

12. Under the circumstances of this case, the “vacancy” occurred only because a new court was created, and the Governor properly appointed a judge – Judge Gonzalez – to serve until the next General Election.

13. The Texas Constitution, however, requires that at the next General Election, it is the voters who decide who will serve as judge. The voters are not even being given that opportunity in this case, and, in fact, if the Secretary’s position were to be sustained, the voters would be allowed to select only one major party candidate whom voters have already rejected as a candidate.

14. Furthermore, the Texas Election Code, as applied by the Texas Secretary of State, violates Candace Taylor’s right to Equal Protection, Candace Taylor’s First Amendment Right to be a candidate, and the voters of Tarrant County's rights to vote, as protected by the Texas Constitution.

Statutes Must Be Strictly Construed in Favor of Ballot Access

15. Any constitutional or statutory provision which restricts the right to hold office must be strictly construed against ineligibility.

Strict Adherence to Code Deadlines Inapplicable in Unusual Situations

16. Moreover, the Texas Supreme Court has explicitly held that “withdrawal and replacement deadlines in the Election Code are not intended to apply to unusual situations when there is not a reasonable opportunity to comply with a statutorily set deadline.”

17. The Secretary nevertheless has opted for a construction of Code §145.036 that would prevent access to the ballot by Ms. Taylor, despite the lack of any concrete basis for such an interpretation.

18. The Secretary, however, ignores the unusual circumstances of this case.

19. Obviously, circumstances changed with Mr. Zachry’s tragic death.

20. This is precisely the type of “unusual situation” to which the Texas Supreme Court referred in holding that Election Code withdrawal and replacement deadlines must not be construed in such a way as to prevent access to the ballot.

21. The Secretary’s position that Ms. Taylor is ineligible because she did not run in the Democratic Party’s primary election as a nominee for the 432nd District Court is untenable.

22. The Texas Supreme Court has consistently held that statutes must be strictly construed in favor of allowing candidates access to the ballot, and against a construction that prevents such access.

23. In this situation, it was obviously through no fault of Ms. Taylor – nor the Democratic Party – that no Democratic nominee appeared in the March primary for the 432nd judicial position.

24. With respect to Defendant Steve Raborn, Plaintiff requests the Court to issue a temporary restraining order, prohibiting Raborn from printing ballots or early vote ballots that do not include the name of Candace Taylor.

25. In addition, Plaintiff requests that in the event that the Court has not rendered a decision in this matter on or before , that the Court issue a temporary restraining order or temporary injunction against the Secretary.

V. PRAYER

26. Upon hearing of this cause, Plaintiff requests this Court to issue a writ of mandamus to the Secretary of State of Texas, ordering the Secretary of State to certify Candace Taylor as the Democratic Party’s nominee for the position of Judge, 432nd District Court of the State of Texas, that the Court issue a temporary restraining order against Steve Raborn in his capacity as Tarrant County Elections Administrator restraining Raborn from printing or causing to be printed any ballots or early vote ballots that do not include the name of Candace Taylor as a candidate for judge of the 432nd District Court, and that the Court conditionally issue an injunction against the Secretary of State of Texas, if the Court has not rendered a decision in this proceeding on or before , enjoining the Secretary of State from certifying the candidates for the General Election ballot until such time as this Court renders a decision in this case, and for such other and further relief, both general and special, at law and equity, to which Plaintiff may show herself to be justly entitled.

Respectfully submitted,

VERIFICATION

STATE OF TEXAS

COUNTY OF TARRANT

BEFORE ME, the undersigned authority on this day of , 2010, personally appeared Candace Taylor, being by me duly sworn on her oath, deposed and said that she is the Plaintiff in the above-entitled and numbered cause; that she has read the above and foregoing Plaintiff’s Original Petition and Application for Writ of Mandamus, and that facts set forth therein are within her personal knowledge and true and correct.