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The Republican Party of Texas (RPT) has launched a sweeping legal challenge to the state’s open primary system, arguing that allowing non-Republicans to vote in GOP primaries violates the party’s First Amendment right to free association.
Filed in September 2025 in the Northern District of Texas, the lawsuit seeks to have Texas Election Code provisions requiring open primaries declared unconstitutional as applied to the RPT. The party argues that it should have the right to limit participation to registered Republicans only, a system known as a closed primary.
Texas Attorney General Ken Paxton (R) sided with the Republican Party, as opposed to the Secretary of State’s office, filing a joint motion to strike down parts of the Election Code that authorize open primaries.
“This unconstitutional law stopping the RPT from closing its primaries is completely indefensible and a slap in the face to the Republican Party and voters,” Paxton said, calling on the Secretary of State to “follow the Constitution by swiftly implementing this consent decree”.
Freedom of Association and the GOP’s Argument
At the heart of the lawsuit lies the First Amendment freedom of association, the right of a political party to define its membership and determine who participates in selecting its nominees. The RPT’s complaint contends that Texas law forces the party “to allow voters who may fundamentally oppose the Party’s principles and candidates to choose the Party’s nominees,” violating its constitutional rights.
The RPT references California Democratic Party v. Jones (2000), in which the U.S. Supreme Court held that political parties cannot be compelled to let nonmembers vote in their primaries. Similar arguments have succeeded elsewhere, most notably in Idaho Republican Party v. Ysursa (2011), where a federal court declared Idaho’s open primary unconstitutional and prompted the legislature to enact a closed system.
Texas GOP leaders argue that “crossover voting”, Democrats or independents participating in Republican primaries, dilutes party integrity and allows outsiders to shape GOP nominations. The complaint highlights several close races, including 2024 contests involving then-House Speaker Dade Phelan (R-Beaumont) and State Rep. Gary VanDeaver (R-New Boston) in their party’s primary elections, where Democrats were accused of crossing over to support more moderate candidates.
Rule 46: The Party’s Internal Change
In 2024, delegates to the Texas Republican Convention adopted Rule 46, mandating that only registered Republicans may vote in GOP primaries. The change followed a ballot proposition in which nearly 73 percent of Republican voters supported closing the primary.
Party Chairman Abraham George said at the time, “In Texas, Republicans, and only Republicans, should select Republican nominees.”
Rule 46 directs that the Secretary of State maintain lists of registered Republicans, a system Texas does not currently have. Without legislative action to implement that process, the GOP turned to federal court for relief.
Unusual Alliances: Attorney General vs. the Secretary of State
The legal maneuvering has created an unprecedented situation in Texas government. The state’s attorney general is effectively suing another state agency, the Secretary of State, over the interpretation and enforcement of Texas election law.
On October 9, 2025, Paxton’s office filed a joint motion for entry of consent judgment with the Republican Party, asking the court to declare open primaries unconstitutional and to recognize the GOP’s right to exclude nonmembers from its nomination process.
Within hours, Secretary of State Jane Nelson (R) filed a notice of opposition, objecting that Paxton’s office gave her less than an hour’s notice before filing and vowing to contest the motion.
Normally, the attorney general represents the secretary of state in election-related litigation. In this case, the two offices are on opposite sides, a rare conflict that underscores the political and procedural stakes involved.
The Case Against Crossover Voting
The GOP’s complaint argues that Texas’s open primary “forces the Party to associate with non-Republicans,” allowing voters “who may fundamentally oppose the Party’s principles” to shape its nominations.
It also claims that crossover voting changes the character of the party’s candidates, pushing them toward more moderate positions and “changing the Party’s message.” The filing cites studies showing crossover voting rates between 10 and 30 percent in states with open systems.
While the phenomenon has been documented, the extent of its impact remains debated. Political scientists note that crossover voting often reflects pragmatic voter behavior rather than organized interference.
Operation Chaos and the History of Strategic Voting
Concerns over crossover voting are not new. In 2008, conservative radio host Rush Limbaugh famously launched “Operation Chaos”, urging Republicans to vote for Hillary Clinton in Democratic primaries to extend her contest with Barack Obama.
Though attention-grabbing, post-election analysis has shown the operation had a limited impact. That context underscores the divide in the Texas debate: while some see crossover voting as a genuine threat to party integrity, others view it as a marginal and largely theoretical concern.
How Other States Handle Primary Elections
The United States features a patchwork of primary systems. Texas is among 15 states with open primaries, allowing any registered voter to participate in either party’s primary.
By contrast, closed primary states, including Florida, Kentucky, and New York, require voters to register with a political party before participating. Semi-closed systems, used in states like North Carolina and Utah, allow unaffiliated voters to choose a party’s ballot but bar registered partisans from crossing over.
Supporters of closed primaries argue they protect parties’ constitutional rights of association. Critics counter that they disenfranchise independent voters and entrench party elites.
If Texas were to adopt a closed system, it would join the ranks of states requiring formal party registration, a process that would require substantial administrative reform and voter education.
Administrative Challenges of Closing Texas Primaries
Transitioning to closed primaries would not be simple. Texas has over 18 million registered voters, none of whom are currently affiliated by party. Implementing closed primaries would require redesigning voter registration forms, reprogramming election software, and possibly re-registering the entire electorate, a process experts warn could take years.
Given that the 2026 primaries are already on the calendar, even a favorable court ruling may not produce immediate operational changes.
How Third Parties Choose Their Candidates in Texas
Unlike the Republican and Democratic parties, third parties in Texas, such as the Libertarian and Green parties, do not hold taxpayer-funded primaries. Instead, they select nominees through a convention process, governed by their own party rules and the Texas Election Code.
Delegates at local, district, and state conventions nominate candidates, who are then certified for the general election ballot by the Secretary of State. Because these parties rarely reach the 20 percent threshold in gubernatorial elections required for state-funded primaries, they remain outside the current lawsuit’s scope.
Still, the contrast underscores how differently Texas treats party nomination processes depending on their size and ballot performance.
What Happens Next
The case is pending before a federal judge known for conservative-leaning rulings in Amarillo. Both the RPT and Attorney General Paxton have asked for a swift ruling declaring open primaries unconstitutional.
However, Secretary Nelson’s opposition ensures the issue will be litigated rather than resolved by consent decree. Even if the court sides with the RPT, the ruling could require the Texas Legislature to pass implementing legislation before closed primaries can take effect.
In the meantime, preparations for the March 2026 primary elections continue under the existing open-primary framework.
Balancing Party Rights and Voter Freedom
The fight over Texas primaries highlights a fundamental tension between party autonomy and voter accessibility. Proponents of closed primaries emphasize the right of voluntary associations to determine their membership and leadership without outside interference. Opponents warn that restricting access to primaries limits voter participation and could discourage engagement among independents, the fastest-growing segment of Texas voters.
Whether the courts, the legislature, or the political process ultimately decides the question, Texas’s debate over open versus closed primaries represents more than a procedural dispute. It cuts to the heart of how Texans define participation, party identity, and political competition in the state’s democratic system.
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