OPINION
Opinion By
This is a petition for writ of mandamus concerning the November 2, 2010 general election ballot. Relator, Albert Cercone, is the Republican Party nominee for the office of Dallas County Justice of the Peace, Precinct 3, Place 1. Respondent Darlene Ewing is Chair of the Dallas County Democratic Party. Respondent Bruce Sherbet, Elections Administrator for Dallas County, is responsible for printing and mailing the general election ballots. Tex. ElegCode Ann. §§ 31.043, 52.002 (West 2010). 1
Cercone asserts that Real Party in Interest Joseph Ramirez Miller has or is going to be certified as the Democratic Party’s nominee for that office. He requests this Court issue a writ of mandamus: (1) ordering Ewing to not certify Miller as the Democratic Party’s nominee for that office; and (2) ordering Sherbet to not place Miller’s name on the ballot fоr that office.
This Court has jurisdiction to consider relator’s petition for writ of mandamus and to “compel the performance of
Per the record, the following is undisputed. Sabeeha Kazmi, who is not a party to this action, filed an application for a place on the March 2, 2010 Democratic Party primary ballot for the office of Dallas County Justice of the Peace, Precinct 3, Place 1. Ewing’s notation on Kazmi’s application indicates that it was accompanied by a petition in lieu of the required filing fee, consisting of 89 pages. By law, the petition must contain 750 valid signatures. See Tex. Elec.Code Ann. §§ 172.021(e), 172.025(2).
An application for a place on the ballot cannot be challenged “as to form, content, and procedure after the day before the beginning of early voting by personal appearance .... ” Tex. Elec.Code Ann. § 141.034. For the March 2, 2010 Democratic primary election, that deadline was February 12, 2010. See Tex. Elec.Code Ann. § 85.001. Prior to that date, on January 17, 2010, Cercone wrote Ewing, challenging the number of valid signatures on Kazmi’s petition. Ewing responded by lеtter the next day, stating, “I have reviewed your challenge to Ms. Sabeeha Kazmi based on insufficient signatures. Based upon the review, I do not believe Kazmi has the requisite 750 signatures. Accordingly, I have declared Kazmi ineligible for the Democratic primary ballot.” Kazmi’s nаme remained on the primary election ballot.
On August 26, 2010, Cercone filed this petition for writ of mandamus. He asserts Ewing has or is going to certify Miller as the Democratic nominee for the office of Dallas County Justice of the Peace, Precinct 3, Place 1, in replаcement of Kazmi. Attached to Cercone’s petition is his sworn affidavit. He states that at various times after the primary election, Kazmi’s name appeared on the Dallas County Democratic Party website as a candidate for the office. On July 7, 2010, Cercone noticed that Miller’s name appeared on the website as the Democratic Party nominee for the office. On July 15, 2010, Cercone sent a letter to Ewing under the open records act asking for documents that would show the process by which Miller becamе the nominee. Cercone states that Ewing has not responded to his letter.
In addition, Cercone attaches .what he swears to be true and correct copies of: Kazmi’s application, including the petition attached thereto; his letter to Ewing, and Ewing’s letter to him in response. He also attaches a copy of a printout of the Dallas County Democratic Party website showing Miller as the party’s candidate for the office and a copy of his July 15 letter to Ewing.
We requested responses from real parties in interest and respondents. See Tex. R.App. P. 52.
Ewing’s response states that: (1) the party’s district executive committee for Justice of the Peace Precinct 3 met on May 17, 2010 and nominated Miller as the replacement candidate for that office; and (2) on May 18, 2010, Miller was certified to thе election authority as the Democratic Party’s replacement nominee for the office. Sherbet’s amended response includes his
Cercone asserts that although Kazmi’s application was deficient for lack of the necessary number of signatures on her petition, there is nothing to indicate she wаs “ineligible” for the position under the election code. His petition states his position: “There is no authority under the Texas Election Code for a political party to select and certify a replacement nominee for a candidate who was removed for filing an invalid application for a place on the ballot.” Ewing argues Cercone is not entitled to mandamus relief because he failed to make a demand for performance of a ministerial duty or non-discretionary act.
See In re Cullar,
Section 145.003 controls the process for an administrative — i.e. county chair’s-— declaration of ineligibility and “[e]xcept for a judicial action in which a candidate’s eligibility is in issue, a candidate may be declared ineligible only as provided, by this section.” Tex. Elec.Code Ann. § 145.003(a) (emphasis added). The section also states:
(f) A candidate may be declared ineligible only if:
(1) thе information on the candidate’s application for a place on the ballot indicates that the candidate is ineligible for the office; or
(2) facts indicating that the candidate is ineligible are conclusively established by another public record.
Id. § 145.003(f) (emphasis added). Additionally, the only authorization for naming of a replacement nominee for placement on the general election ballot is set forth in section 172.058. In pertinent part, it provides:
(a) If a candidate who has made an application for a place on the general primary election ballot that complies with the applicable requirements dies or is declared ineligible after the 62nd day before general primary election day, the candidate’s name shall be placed on the ballot and the votes cast for the candidate shall be counted and еntered on the official election returns in the same manner as for the other candidates.
(b) If the deceased or ineligible candidate receives the vote required for nomination, the appropriate executive committee may seleсt the nominee and certify the nominee’s name of replacement on the general election ballot as provided by Subchapter B of Chapter 145, for filling a vacancy in a nomination.
Id.
§ 172.058(a), (b) (emphasis added).
2
This and other sections of the election code show a clеar distinction between the requirements for an application and the requirements for eligibility to hold a public
Ewing’s stated reason for her declaration that Kazmi was ineligible was that Kazmi’s petition lacked the required number of valid signatures. That is not a valid ground for declaring a candidatе ineligible. Tex. EleC.Code Ann. § 145.003(f). However, entitlement to mandamus relief generally requires: a legal duty to perform a non-discretionary act; a demand for performance; and a refusal.
In re Cullar,
Moreover, the duty implicated by Cer-cone’s argument is the duty of Ewing as party chair to declare a candidate ineligible only on one of the two statutory grounds stated in section 145.003(f).
See In re Tolliver,
The record does not show that Cercone ever demanded that Ewing perform her duty not to declare Kazmi ineligible for any reason other than the exclusive reasons in section 145.003(f). Absent this demand and a refusal, Cercone has not shown his entitlement to mandamus relief.
There is an exception to the demand requirement in those rare circumstances where the “request would have been futile and the refusal little more than a formality.”
In re Perritt,
With regard to Sherbet, the record indicates that Miller has been certified to Sherbet as a candidate. Cercone admits that “Sherbet has no authority to inquire into the validity of the certification of Miller.... If Sherbet believes that the certification of Miller was unlawful, there is nothing that he, acting on his own authority, can do about it.” We agree. Cercone also cites — correctly—section 52.003 as requiring Sherbet to place on the ballot the name оf each candidate “whose entitlement to placement on the ballot has been lawfully certified to the authority.” Tex. Elec. Code Ann. § 52.003(a)(2).
Section 273.061 does not grant us power to issue mandamus relief ordering performance of a duty “not precisely identified as a duty by statute.”
Cullar,
The law provides avenues for relief of any violation of the election code. See Tex. Elеc.Code Ann. § 273.081 (availability of injunctive relief for person harmed or in danger of being harmed by a violation or threatened violation of the election code); see also §§ 145.003(h), 145.005 (procedure generally for determination of ineligibility occurring after the deadline for omitting аn ineligible candidate’s name from the ballot). Under the substantive and procedural facts of this case as presented to us, however, those avenues do not include mandamus. See Tex. Elec.Code Ann. § 273.061.
We conclude relator has not shown he is entitled to mandamus relief.
See Cullar,
Because of the time remaining as to certain deadlines identified by the relator, see Tex. Elec.Code Ann. §§ 145.064-.065, no motion for rehearing will be entertainеd.
Notes
. All statutory references herein are to the Texas Election Code unless otherwise indicated.
. Subchapter B of Chapter 145 applies to "a candidate who is a political party’s nominee in the general election for state and county officer except a candidate for president or vice-president of the United States.” Tex Elec.Code Ann. § 145.031.
. And the person responsible for certifying Miller was Griggs, not Ewing. See id., § 145.037(d).