IN-DEPTH: Texas Supreme Court Rejects Bid to Remove Justice John Devine From March Ballot

(L–R) Justice Rebeca Aizpuru Huddle, Justice Brett Busby, Justice Debra Lehrmann, Chief Justice Nathan L. Hecht, Justice Jeff Boyd, Justice Jimmy Blacklock, Justice Jane Bland, and Justice Evan A. Young, of the Texas Supreme Court, arrive to hear litigators make their arguments in Zurowski v. State of Texas, at the Texas Supreme Court in Austin, Texas, on Nov. 28, 2023. Suzanne Cordeiro/AFP via Getty Images

The Supreme Court of Texas has denied a bid to remove incumbent Justice John Devine from the Republican primary ballot.

Earlier this month, a lawyer for Texas Supreme Court candidate Brian Walker filed an emergency petition requesting Justice Devine be removed from the ballot over allegations that he failed to secure the required number of valid petition signatures for his candidate application.

“The facts here fit within the scope of this longstanding cure remedy that Devine can cure the defects Walker identifies,” read the court opinion on Jan. 11. “Thus, if Walker had filed his mandamus petition promptly, the proper initial remedy would have been abatement for an opportunity to cure, not withdrawal of the chairman’s certification of Devine as a candidate. Because Walker failed to seek mandamus relief promptly and would not be entitled to the relief sought if he had, we deny the petition.”

Justice Devine, who was first elected to the Texas Supreme Court in 2012, is one of three Republicans seeking re-election this year, but the Place 4 candidate is the only incumbent facing competition in the upcoming primary. Justices Jimmy Blalock of Austin and Jane Bland of Houston also seek re-election for Places 2 and 6, respectively, in November.

Justice Devine did not respond to The Epoch Times’ request for comment.

His challenger, Justice Walker, 46, currently serves on the Texas Second District Court of Appeals. He took office in January 2021. In July 2020, Justice Walker defeated Elizabeth Beach in the Republican primary runoff with more than 64 percent of the vote. Later that year, he ran unopposed in the general election.

Justice Walker told The Epoch Times that he “respectfully disagrees” with the Texas Supreme Court’s recent decision.

“I respectfully disagree and do not believe the Court got this right,” he said in an email. “As far as delay, how could a candidate challenge based on a deficiency they did not know was present or get relief from a [Republican Party of Texas] Chair who was non-responsive?”

Court documents state that Justice Devine filed his primary ballot application for re-election on Nov. 14, 2023, and Republican Party Chair Matt Rinaldi accepted his application on Dec. 1.

Justice Walker’s application was filed on Dec. 4 and accepted by Mr. Rinaldi 10 days later.

The deadline to certify the applications to the Secretary of State to appear on the ballot was Dec. 19.

Candidates for the office of Justice of the Supreme Court must submit a petition with at least 50 signatures from each court of appeals district, along with their application, according to Texas Election Code § 172.021(g).

According to Justice Walker, Republican Party Chair Matt Rinaldi’s team did not provide him with copies of Justice Devine’s petitions until after the candidates were certified, adding that Mr. Rinaldi’s office closed for the holidays the following day until after the new year.

“Rinaldi’s subordinates did not give us copies of Devine’s petitions until Dec 21st, and the next day, they closed their doors until January 3rd—12 days that they were virtually impossible to reach,” Justice Walker wrote. “It would have been near impossible for us to move any faster than we did in an attempt to hold the party and Devine accountable to what the law clearly required before their sweeping decision.”

Invalid Signatures

Justice Walker sent a letter to Mr. Rinaldi on Dec. 27, challenging Justice Devine’s petition, which he said contained more than two dozen invalid signatures from the Eighth Court of Appeals District.

“[E]ighteen because the signers had previously signed Walker’s petition, two because they were duplicates, and eight because the signers had previously signed Walker’s petition and signed Devine’s more than once,” Justice Walker explained to Mr. Rinaldi in his letter, according to the court document. “A person may only sign a petition for one candidate for each office; subsequent signatures are void.”

The document stated that Justice Devine’s petition was five short after omitting the invalid signatures while leaving Justice Walker’s petition with more than the required number.

After receiving no response from Mr. Rinaldi, Justice Walker sent a second letter on Jan. 5, asking the party chair to respond “within an hour.”

“That same day, Walker filed an original petition for writ of mandamus in this Court, asserting an emergency and asking the Court to compel Chairman Rinaldi to reject Devine’s application and remove him from the March primary ballot,” the opinion read.

The Supreme Court’s opinion said that Justice Devine’s right to amend his application was “precisely what obligated Walker to bring such a challenge as early as possible.

“In their January 11th opinion, the Court says we were too slow, but the law passed by the Legislature says that candidates can challenge up until 50 days before the election, which wasn’t until the following Monday, January 15,” Justice Walker said. 

Justice Devine responded to his opponent’s challenge by providing 23 additional non-duplicative signatures from the Eighth Court of Appeals District, which he reportedly gathered prior to the filing deadline.

“And, as far as Devine’s extra petition sheets, I find it very odd that he just so happened to have four extra sheets in the specific district, El Paso, where, after the filing deadline, he and I both discovered that he was deficient.” Justice Walker continued.

However, even without Justice Devine’s response, the Supreme Court said it would still not be able to provide the relief sought by Justice Walker.

“...withdrawing certification of the challenged candidate—would still be unavailable because our precedent requires that candidates who themselves have promptly filed be given an opportunity to cure defects in petition signatures,” the justices wrote.

“The Election Code is silent regarding ‘what happens when the state chair erroneously approves a petition containing invalid signatures,’” they continued. “We have construed that silence ‘in favor of an opportunity to cure,’ thereby avoid[ing] potential constitutional problems that might be implicated of access to the ballot was unnecessarily restricted.’”

Republican Party of Texas’ Response

Mr. Rinaldi’s office told The Epoch Times that neither he nor anyone else from his office was available for an interview, but they did provide a comment supporting the high court’s decision.

“We are pleased to see the Texas Supreme Court recognize that the Republican Party of Texas handled Justice Devine’s ballot application properly,” Republican Party of Texas General Counsel Rachel Hooper said in an emailed statement to  The Epoch Times. “As the statewide filing authority for the Republican primary elections, the Republican Party of Texas staff works diligently to fairly and legally process all election filings submitted to the party. We are grateful to Judd Stone and Christ Hilton for their excellent representation of the Republican Party of Texas and Chairman Matt Rinaldi.”

On March 5, Republican voters will decide whether Justice Devine or his opponent, Justice Walker, will be placed on the general election ballot in November.