New Secretary of State Punts On Closed Primary Question

On August 6, U.S. District Judge Matthew Kacsmaryk gave Texas’s new secretary of state a deadline. By Monday, tell the court which way the state would go on the Republican Party’s suit to close its primaries. Robert Howden filed on time. He did not defend the open primary on the merits, and he did not concede the party’s case. He pointed at the Legislature.

Howden aimed the question at Austin. His filing calls the Legislature “the proper forum” and says the matter “can and will be resolved by the Legislature,” the Texas Tribune and Texas Scorecard reported. The lever is not in Austin, and the filing’s own case number says so.

The case is Republican Party of Texas v. State of Texas, number 2:25-cv-00200-Z, before Kacsmaryk in Amarillo. The party sued in September 2025, arguing that Texas Election Code Section 162.003, the law that lets any registered voter request either party’s primary ballot, forces it to associate with non-members and violates its First Amendment right of association. The party had written the closed-primary rule into its own bylaws in 2024 and gone to federal court after the Legislature declined to put it in statute.

Here is what the “proper forum” line steps around. Texas keeps no party registration. A voter affiliates by showing up and asking for a ballot, and that is the whole of it, so there is no roster to close a primary against and no switch for a secretary of state to flip. That is one reason the office keeps pointing at the statute books instead of the docket.

Even if the Legislature acts, it does not convene until January 12, 2027, so the earliest a closed-primary statute could govern an election is the 2028 cycle. And a statute passed in 2027 does not escape the federal courts. A Texas election law is reviewable there on federal constitutional grounds, in front of the same kind of lifetime bench hearing the case now. The subject would change. The venue would not.

The division runs inside the state itself. Attorney General Ken Paxton sided with the party against the state’s own litigating position in October 2025. The secretary of state defends the current rule. So Texas arrives in Amarillo arguing against itself, its two senior legal officers on opposite sides of the caption, and a federal judge resolves the split Texas could not resolve at home. Whichever side loses, it is entered in the book as Texas losing.

This is not the first Texas rule to make the trip to a federal courtroom. In February, a federal judge struck down Texas Senate Bill 13 and its protections for the state energy sector, and the Partisan reported the pattern then: a law passed by elected Texas representatives, overturned by a judge with a lifetime appointment and no Texas voter to answer to. Change the energy law to the primary rule and the mechanism is the same.

The tell is in who cannot be reached. A Texas judge who rules against the Texas Constitution stands for election and can lose the seat, the remedy Texans actually hold over their own bench. Kacsmaryk holds a federal appointment for life. He has never been on a Texas ballot and never will be. The Texans whose political association is on the table have no route to the person setting its terms.

None of this turns on which party filed. The Republican Party is in the caption today. The same courthouse and the same kind of federal claim are open to any party in Texas that writes a rule and wants it to hold. Swap the plaintiffs and the one fixed feature is the venue.

The party can write its rule. The Legislature can write a statute. The secretary can run the election. The one move none of them can make is the one that settles it, because that move belongs to a federal judge in Amarillo. It is the only vote in the whole dispute that no Texan gets to cast.