By a party-line, 49-44 vote, the U.S. Senate confirmed U.S. Rep. John Ratcliffe’s (R-Heath) nomination to be Director of National Intelligence. His eventual resignation will leave the CD4 seat vacant until at least January because Gov. Greg Abbott (R) is not expected to order a special election. Ratcliffe is the Republican Party’s nominee for the general election ballot. An August 8 meeting of the CD4 Congressional District Executive Committee has been scheduled to select a replacement Republican nominee for the general election ballot, if they can.

U.S. Rep. John Ratcliffe

U.S. Rep. John Ratcliffe

Jason Ross, Ratcliffe’s former district director, and Rockwall council member Trace Johannesen are actively seeking the seat. Former congressional candidates Floyd McLendon, who lost the CD32 primary to Genevieve Collins, and T.C. Manning, who unsuccessfully sought the party’s nomination to challenge U.S. Rep. Sheila Jackson Lee (D-Houston), are believed to be considering the “race.” Any replacement nominee is highly likely to serve in the next Congress. CD4 was 22 points redder than the state as a whole in 2018 and is trending redder.

Unless there is no replacement nominee, in which case Ratcliffe’s name must either remain on the ballot or, if he withdraws, no Republican would be on the ballot except as a write-in candidate, as happened in CD22 in 2006. If Ratcliffe won the general election, a special election would be needed to fill his vacant seat.

Section 145.036, Election Code provides that a political party may make a replacement nomination “only if” any of three circumstances apply:

  • A “catastrophic illness” diagnosed after the filing deadline that would “permanently and continuously incapacitate” the candidate from performing the duties of the office
  • No political party holding primary elections has a nominee for the office; or
  • “The candidate has been elected or appointed to fill a vacancy in another elective office or has become the nominee for another office.”

The first two do clearly do not apply. Ratcliffe’s withdrawal from the ballot is not because of illness, and the Democratic Party nominated Sherman IT professional Russell Foster in the March primary. That leaves the third as the only potential triggering event. Ratcliffe was not elected or appointed to fill a “vacancy in another elective office.”

The key remaining phrase is “become the nominee for another office.” The word “elective” is not expressly applied here. Whether Republicans can replace Ratcliffe on the ballot may hinge on whether the director of national intelligence is “another office” under the Election Code?

Any effort to replace Ratcliffe on the ballot is likely to be challenged in court.

In 2006, a federal judge ruled that former U.S. Rep. Tom DeLay (R-Sugar Land) could not be replaced on the ballot. He had argued that he would not be a resident of the district by Election Day and would be ineligible to serve. He withdrew anyway, leaving no nominated Republican candidate on the ballot. Local Republicans coalesced around Houston council member Shelly Sekula-Gibbs, who ran as a write-in candidate. She lost to Democrat Nick Lampson, 52%-42%, while simultaneously winning the concurrent special election for the remainder of DeLay’s unexpired term. No Democrat ran in that special election. She served in Congress for two months.

At the state level, the replacement nominee provisions were most recently used in 2016 in the aftermath of the death of then-Harris Co. Comm. El Franco Lee. Then-Sen. Rodney Ellis (D-Houston) was selected to succeed Lee on the ballot for re-election. Shortly thereafter, then-Rep. Borris Miles (D-Houston) was selected to replace Ellis. Shawn Thierry was selected to replace Miles on the general election ballot for HD146. Two years earlier, county and precinct chairs selected Dustin Burrows to replace then-Rep. Charles Perry (R-Lubbock) on the ballot after Perry won a special election for SD28.

Voters electing an ineligible person in order to keep the seat in the same party’s hands has happened before. In 2012, the late Sen. Mario Gallegos (D-Houston) won the general election with 71% of the vote even though he had passed away prior to Election Day. Democrats held onto the seat in a special election, which was won by Sylvia Garcia.

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