Category Archives: Texas election law

#LopezvRivera update: Imporant victory against illegal voting in Weslaco election contest

Last Thursday, June 12, the district court announced in open court that Letty Lopez had met her burden and proved by clear and convincing evidence that there were more illegal votes cast in last November’s Weslaco Commission District 5 race than the margin of victory. The judge announced that a new election must be held “as soon as possible,” although no date has been set yet.  Below are two news stories covering the ruling.  Stay tuned for details, as the judgment should be signed soon and we will find out what happens next.  I will also lay out the basis for the court’s ruling in more detail after the judgment is signed.  This is an important victory against illegal campaign tactics commonly used by some candidates in the Valley.  (Disclosure: Najvar Law Firm, the sponsor of this blog, represents the successful contestant, Letty Lopez.)

Judge orders new election in Weslaco District 5” (The Monitor)

KRGV video report

Open letter to Valley View ISD employees: fight back against voter intimidation

Najvar Law Firm sent this open letter to the Valley View ISD Board of Trustees (Pharr, TX) Friday.  With municipal elections for the City of Hidalgo approaching May 10, the letter points out the criminal and civil provisions protecting public employees from attempts by their employers to coerce votes, and requests that the school distribute the letter to all its employees.

See this recent video report by KRGV discussing the type of voter intimidation that occurs in parts of the Rio Grande Valley.

Hidalgo County story: “Man reports voter intimidation”

I have learned in my short time in the Valley so far that the type of voter intimidation described in this KRGV story (video), including forcing public employees to submit to help from an “assistant” who is a partisan for the slate supported by the voter’s employer, is rampant.  State media largely ignores this problem, which I do not understand.

“Trial delayed in Lon Burnam election loss”

Fort Worth Star-Telegram here.  The election contest was filed March 24, centered on this allegation:

“I have received reports from voters in the district who say they were approached at their door by campaign workers of unclear affiliation who asked them to fill out a vote-by-mail application on an electronic tablet device such as an iPad,” Burnam said in his statement.

“Texas law clearly does not allow the practice of filling out vote-by-mail ballot applications electronically, which the Texas Secretary of State’s has confirmed. Other questionable practices about this operation aside, this renders the entire operation illegal.”

 

Potential litigation over residency in Galveston mayoral race

As soon as I posted on this brewing residency issue in Galveston, the City Secretary issued an official statement certifying Yarbrough’s name for the May 10 ballot.  That statement in substance reads in full:

James Yarbrough claimed no homestead exemption on any property in the year 2013.

He is eligible to be a candidate and his name will be on the May 2014 ballot.

He applied for a homestead exemption on property in Fayette County in March, 2012 and requested the exemption removed on September 8, 2013. The homestead exemption therefore was not applicable for the year 2013.

In my earlier post I said that, given the specific residency disqualifiers in the Galveston charter, the question as to whether or not the city secretary had authority to look beyond the application itself was perhaps more nuanced than in a regular case (in which such factual review is clearly verboten).  It appears that the secretary did examine extrinsic evidence but determined that Yarbrough still met the city requirements.

Galveston Daily News reported even before the City’s announcement that Mafrige was prepared to go to court if the Secretary certified Yarbrough for the ballot. If suit is filed, the court will have to determine whether the city charter requirements displace the Election Code default definitions (or supplement it), and if so, whether the city secretary’s application of the charter was correct.

Residency dispute surfaces in race for Galveston mayor

The Houston Chronicle reported yesterday (behind paywall) that the presumed frontrunner for Mayor of Galveston, Jim Yarbrough, is having his residency challenged by his two opponents, Councilwoman Elizabeth Beeton and businessman Don Mafrige.  The two hired an attorney to file a letter with the City Secretary alleging that Yarbrough is ineligible under the city charter’s residency requirements because he claimed a homestead outside the city within the relevant period.

At first glance, this situation appears to raise some interesting legal issues.  The general rule is that the official with authority for placing names on the ballot (be it the party official or city official) cannot resolve disputed fact issues as a matter of law.  Rather, the official is required to judge the ballot application based on information within its four corners.

The only exception to this duty, allowing an administrative declaration of ineligibility, is severely restricted.  The relevant Election Code provision states that “a candidate may be declared ineligible only if: (1) the 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.”  Tex. Elec. Code § 145.003(f) (emphasis added).  As the United States Court of Appeals for the Fifth Circuit has stated, “the governing standard, ‘conclusively established,’ bears emphasis.  Something is conclusive when…it puts an end to the debate or question….Accordingly, Texas courts have explained that public records must leave no factual dispute concerning the conclusiveness of ineligibility.”  Tex. Democratic Party v. Benkiser, 459 F.3d 582, 592 (5th Cir. 2006).  In the typical case this means that residency is not an issue that can be successfully raised with the city official, because determining residency, per the Election Code definition, is a fact-intensive question.

The caveat here appears to be the specific provision in the Galveston charter purporting to flesh out certain scenarios under which residency may not be claimed:

Each Councilmember elected at large shall have been domiciled and shall have had his or her principal physical residence in the City for a period of not less than one (1) year immediately preceding the Councilmember’s election. For the purposes of this section, a person must meet all of the following to meet the requirement for a “principal physical residence”, if applicable:

(a) The person must use the residence address for voter registration and driver’s license purposes;

(b) The person must use the residence address as the person’s home address on documents such as employment records, resumes, business cards, government forms, and loan applications;

(c) The person must not claim a homestead exemption on any property other than the residence.

Galveston, Tex., charter art. II, sec. 2.  Subsection (c) is the basis upon which the challengers assert Yarbrough cannot satisfy the city’s more-specific residency requirements. In a normal case, claiming a homestead someplace does not per se prevent the establishment of a residence elsewhere for purposes of voting or eligibility for office, but the claim is that this specific provision would have such effect for Galveston candidates.

However, there are some open questions raised by this situation.  First, home rule cities are permitted to displace the default Election Code residency requirements, but only if the city rules are clear that they are meant to be the exclusive residency requirements. That raises potentially unresolved issues of statutory construction between the Charter and the Election Code.  So the question even as to what the appropriate substantive standard is is not necessarily clear.  As to the process quesiton–whether the Galveston city secretary (as opposed to a court) may consider any evidence that Yarbrough claimed a homestead elsewhere, much less whether same constitutes “conclusive” evidence–that may also be affected by the fact that the city charter contains this specific provision.

As in any election case, time is of the essence and both sides here are likely teed up for some fun briefing on these issues, both procedural and substantive.

Shameless plug dept: Lex Politico reporting on last session’s ill-fated “disclosure” bill linked in @BreitbartTexas story

This Breitbart Texas story on the recently-filed lawsuit by Empower Texans against the TEC links to last year’s Lex Politico post explaining the ill-conceived (and ultimately vetoed) SB 346, which would have regulated nonprofits as political committees but excepted labor unions.

More on the history of “politiqueras” in Rio Grande Valley politics

One would think there would be much more statewide coverage of the very intersting, and troubling, political corruption and voter fraud issues so prevalent in South Texas elections.  Some previous coverage of the role of “politiqueras” and voter assistance fraud was pointed out to me today:

Politiqueras a fixture in Rio Grande Valley elections,” San Antonio Express-News (5/25/12)

Voter turnout efforts clash with history in South Texas,” Texas Tribune (10/10/12)

HT to Rep. Aaron Pena for pointing these out.  He’s quoted in the Express-News piece as saying that “voter assistance abuse is the voter fraud of choice.”