OPINION ON MOTION FOR REHEARING
Our original opinion is withdrawn and the following substituted.
In this original proceeding relator seeks writ of mandamus directing the court of appeals to withdraw the writ of mandamus it issued in an original proceeding. Because the resolution of the issues presented to the court of appeals required factual determinations that could not properly be made by an appellate court in an original proceeding, we hold the court of appeals abused its discretion and conditionally grant the writ.
Relator Elaine A. Brady is the sole candidate in the Democratic primary for Place One on the First Court of Appeals. Appropriate Democratic Party officials certified her after she had submitted her application with the $2,000 filing fee and accompanying documentation to satisfy the applicable sections of the Texas Election Code.
The incumbent justice and sole candidate in the Republican primary for Place One on the First Court of Appeals is the Honorable D. Camille Dunn. On January 24, 1990, Dunn filed an original mandamus action in the Fourteenth Court of Appeals to compel Robert Slagle in his capacity as Chairman of the Texas Democratic Executive Committee and local Democratic Party officials to remove Brady's name from the Democratic primary ballot. Dunn alleged Brady's petitions did not comply with the Election Code's sections 141.062
Brady, the real party in interest, responded with an affidavit also from the Harris County Tax Assessor showing 10 of the 58 challenged signers were in fact registered. Brady also included certified copies of voter registration records from the assessor's office to show that an additional 21 of the 58 were registered. Both Slagle and Brady contended that there were factual disputes that precluded mandamus relief in an original appellate court proceeding. Slagle urged that a literal and over-strict construction of the Election Code provisions that even failed to allow for correction of clerical mistakes would, as applied to Brady's situation, violate the First and Fourteenth Amendments to the United States Constitution. For the constitutional claim, Slagle cited Pilcher v. Rains, 853 F.2d 334 (5th Cir.1988), which cited Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and related cases.
The court of appeals issued the writ of mandamus to remove Brady's name from the primary ballot because the court concluded Brady only had 247 valid signatures, three short of the required 250. Dunn v. Slagle, 783 S.W.2d 953 (Tex.App.-Houston [14th Dist.] 1990, orig. proceeding). The court of appeals concluded it was "undisputed" that 27 signers were unregistered. It further concluded the number of valid signatures was reduced below 250 because of omissions and incorrect registration numbers for several of the remaining signatures. Fifteen signatures were held invalid for incorrect registration numbers. Although the briefs of Slagle and Dunn addressed the federal constitutional issue, there is no mention of it in either the court's opinion or concurring opinion.
It is well established Texas law that an appellate court may not deal with disputed areas of fact in an original mandamus proceeding. West v. Solito, 563 S.W.2d 240, 245 (Tex.1978); Dikeman v. Snell, 490 S.W.2d 183, 186-87 (Tex.1973). To adjudicate the controversy the court of appeals decided factual questions on inconsistent and conflicting affidavits and documents. The construction and application of the Election Code provisions Dunn asserts were violated, by the nature of the statutes involved, require a fully-developed factual record. It is impossible to construe the statutes as to factors such as the type and extent of clerical error that is permissible, without factual determinations of how many signers were in fact registered but gave incorrect voter registration numbers through clerical error. The number of registered voters who signed is a fact question that may not be determined by comparing registration names with signatures, because some signers may have used variants of their names (such as a middle name or omission of a maiden name) that would not be disclosed by simple comparison. The factual problems mentioned are not all-inclusive; the record in this case calls for factual determinations too numerous and varied to detail in this opinion.
The Supreme Court has stated that the federal constitutional rights involved in a political party's process of selecting its nominee for an elective office include the fundamental rights of freedom of association and the right to cast an effective vote. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214, 107 S.Ct. 544, 548, 93 L.Ed.2d 514 (1986); Anderson v. Celebrezze, 460 U.S. 780, 787-88, 103 S.Ct. 1564, 1569-70, 75 L.Ed.2d 547 (1983); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979). In particular, the freedom of association guaranteed by the First and Fourteenth Amendments includes the right to select a candidate who best represents the party's ideologies as decided by its members. Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 1021, 103 L.Ed.2d 271 (1989).
When a political party questions the constitutionality of state statutes regulating the party's method of selecting a candidate, as applied to a particular office or candidate, the courts must employ a balancing test. The balancing test weighs the burden on the candidate or party against the compelling state interest the state must advance to justify the regulation. Eu v. San Francisco County Democratic Central Committee, 109 S.Ct. at 1019; Tashjian v. Republican Party of Connecticut, 479 U.S. at 213-15, 107 S.Ct. at 548-49; Anderson v. Celebrezze, 460 U.S. at 788-90, 103 S.Ct. at 1569-71; Illinois State Bd. v. Socialist Workers Party, 440 U.S. at 184, 99 S.Ct. at 990; American Party of Texas v. White, 415 U.S. 767, 780 & n. 11, 94 S.Ct. 1296, 1305 & n. 11, 39 L.Ed.2d 744 (1974). The party challenging the statute must produce evidence to establish facts to enable a court to assess the character and magnitude of the burden imposed on the party's First and Fourteenth Amendment rights by the election law's provisions. Anderson v. Celebrezze, 460 U.S. at 788-90, 103 S.Ct. at 1569-71; Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972). The party defending the statutory regulation must produce evidence that the burdens are necessary to further a compelling state interest. Eu v. San Francisco County Democratic Central Committee, 109 S.Ct. at 1021 & n. 15; Tashjian v. Republican Party of Connecticut, 479 U.S. at 217-18 & n. 8, 107 S.Ct. at 550-51 & n. 8; Anderson v. Celebrezze, 460 U.S. at 789, 103 S.Ct. at 1570. The party defending the statute must further show the statute is narrowly tailored to serve that compelling state interest. Eu v. San Francisco County Democratic Central Committee, 109 S.Ct. at 1019-20; Anderson v. Celebrezze, 460 U.S. at 806, 103 S.Ct. at 1579; Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. at 185, 99 S.Ct. at 990.
In applying the balancing test, the Supreme Court has said a "court must resolve [a constitutional challenge to a state election law] by an analytic process that parallels its work in ordinary litigation." Anderson v. Celebrezze, 460 U.S. at 789, 103 S.Ct. at 1570 (emphasis added). Application of a constitutional balancing test is particularly dependent on a fully-developed factual record. See, e.g., Socialist Labor Party v. Gilligan, 406 U.S. at 588, 92 S.Ct. at 1719; Wisconsin v. Yoder, 406 U.S. 205, 224-27, 92 S.Ct. 1526, 1537-39, 32 L.Ed.2d 15 (1972); see generally Pine, Speculation and Reality: The Role of Facts in Judicial Protection of Fundamental Rights, 136 U.Pa.L.Rev. 655, 658-68, 701-702 (1988). In Pilcher v. Rains, 853 F.2d 334 (5th Cir.1988), applying the balancing test
Because the court of appeals issued the writ of mandamus in an original proceeding in which it could not properly make the factual determinations raised in the case, we hold the court of appeals abused its discretion. We conditionally issue the writ of mandamus directing the court of appeals to withdraw its writ and any related orders. The actual writ will issue only if the court of appeals fails to comply with this opinion. We overrule the motion for rehearing, and no further motion for rehearing will be entertained.
MAUZY, J., concurs.
A signature on a petition is valid if: