Abbott and Nelson Side with RINOS and Democrats Against Texas Republicans, Part 1

Grassroots Republicans Want a Closed Primary; Abbott and Nelson Move to Stop Them

Political parties rose in the United States as soon as our nation did. As the U.S. Supreme Court has opined, “Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views (Jones, 574).

It should be no surprise to anyone that politicians constantly meddle with the ability of political parties to choose who represents them. In Texas today, those politicians are being led by Texas Secretary of State Jane Nelson and Gov. Greg Abbott. Both are exerting all the power (including taxpayer money) available to them to stop the Republican Party of Texas (RPT) from preventing Democrats from voting in Republican primaries.

In May 2024, delegates to the RPT’s state convention voted overwhelmingly to keep Democrats out of Republican primaries by “closing” the primary. In this case, a closed primary means that only voters who are registered as Republicans could vote in the GOP primary. In taking this action, Texas joined 19 other states that have closed (10) or partially closed (9) primaries.

Because Texas law does not allow closed primaries (and because the Texas Legislature did not close them during multiple legislative sessions this year despite the RPT’s new rule), on September 4 the RPT filed suit in federal court against Texas Secretary of State Jane Nelson, alleging that Texas’ open primary structure violates the party’s First Amendment right of association.

Despite clear legal precedents supporting the First Amendment right of Texas Republicans “to peaceably assemble” by holding a closed primary, Nelson decided to go around Texas Attorney General Ken Paxton—who usually defends the state in court—and hire expensive, out of state attorneys to oppose the RPT. The law firm she hired, Clement & Murphy, has also represented clients opposing President Donald Trump’s executive orders.

It is not uncommon for state attorneys general, including Paxton, to refuse to represent the state in cases where they believe the law in question is unconstitutional or illegal. In Texas, this has happened a number of times, including earlier this year when Paxton (and the state) acknowledged the illegality of a Texas law that provided in-state college tuition to illegal aliens living in Texas.

Paxton did this again in early October when he filed in court a joint motion with the RPT requesting “that this court enter a declaratory judgment that their First Amendment freedom of association is incompatible with the legal structure of Texas’ primary elections.” Apparently, Nelson disagreed and hired her own attorneys.

Why would Nelson, a Republican, oppose the First Amendment rights of her fellow Republicans? The most obvious answer is because her boss, Greg Abbott—the man who appointed her, wants her to.

Despite his opposition to a number of establishment Republicans in the 2024 GOP primary over the school choice issue, Abbott has traditionally been very much at home with and supportive of the liberal Republicans in the Texas Legislature. He is certainly doing that again during the current primary season. These same “RINOs” (Republicans-In-Name-Only) are doing all they can to reduce the influence of conservatives in the Texas Legislature.

A closed primary would jeopardize the ability of many of these legislators to win their primary races against conservative opposition. One example of this would be Rep. Dade Phelan. After coming in second in the March primary, he won by 366 votes in the runoff where “at least 1,442 Democrats’ cast early ballots.”

A closed primary might also limit the runaway spending, DEI initiatives, massive debt, high property taxes, and other big government initiatives favored by these Republicans.

Nelson and Abbott have not shared with us their actual reasons for opposing closed primaries. But we can see, in a recent statement made by Nelson, that they are likely trying to hide those reasons from the public:

“As Secretary of State, it is my responsibility to present a defense of Texas’ election laws to the court. Contrary to several recent public postings, I have never expressed opposition to closed primaries, and I would gladly implement any statutory changes that the Texas Legislature sees fit to enact in the future. But the existing statutes were duly enacted by our Legislature. I put my hand on Sam Houston’s Bible and swore an oath to uphold the laws and Constitution of this state, and I am bound to do that.”

The statement is very carefully worded. Nelson does not take a position on closed primaries; she just notes she has never expressed opposition.

She then makes the pious proclamation that “I put my hand on Sam Houston’s Bible and swore an oath to uphold the laws and Constitution of this state, and I am bound to do that.” It is almost enough to bring one to tears. Except for the fact that Nelson leaves out the most important part of her oath when it comes to the RPT’s effort to adopt a closed primary.

Yes, it is true that Texas law does not allow closed primaries. But Nelson—and Abbott—both know that the right of Republicans to exclude Democrats from their primaries rests primarily in federal law, specifically the First Amendment. Yet her statement—no doubt drafted by the cadre of government lawyers available to Abbott and Nelson—avoids this connection by dropping this portion of her oath:

“I, Jane Nelson, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of Secretary of State of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.”

It gets worse.

Here is Section 1, Article 1 from the Texas Constitution:

Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.

Sometimes, when politicians are seeking to thwart the public will, we have to state the obvious. I will do so here: the First Amendment is part of the United States Constitution.

With that out of the way, no one can seriously doubt that not only is Nelson directly required in her oath to “preserve, protect, and defend” Texans’ First Amendment “right of the people peaceably to assemble” under the U.S. Constitution, she is also required to do so by the portion of her oath that obligates her to “preserve, protect, and defend the Constitution and laws … of this State.”

Only ignorance or neglect of her duties can shield Nelson from a charge of duplicitousness regarding this statement. The same applies to Abbott.

Tomorrow, in Part 2, we will examine the constitutional case the RPT can make for closing the GOP primaries. It is very strong; the state of Texas has little chance of winning this battle on the merits (and why would our Republican politicians want to win it?). Yet that is not stopping Abbott and Nelson from doing all they can to thwart the constitutional rights of Republican voters in Texas. Sam Houston would be ashamed.