Category Archives: Texas municipal elections

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.

First Court of Appeals denies pet for mandamus in Galveston mayoral residency dispute

I got a little sidetracked with all the excitement over McCutcheon this week, but on April 1 the First Court of Appeals in Houston issued a memorandum opinion denying Don Mafrige and Elizabeth Beeton’s petition for mandamus, which asked the court of appeals to require the Galveston City Secretary to declare Jim Yarbrough ineligible for Galveston mayor under the city charter residency requirements.  The order contains no explanation, but as I indicated earlier, residency is a fact-intensive inquiry and it’s almost always fruitless to ask a city secretary or court of appeals (via mandamus) to declare a candidate a nonresident. Beeton and Mafrige might have been able to argue the factual residency issue if they had filed for an injunction in district court, but it looks like they were hoping the Galveston charter provisions were sufficiently specific to allow the court of appeals to dispose of this via mandamus.  That didn’t happen.

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.

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.”

NLF files election contest after finding evidence of fraud and illegal votes in Weslaco Commission election

Elizabeth Findell of The Monitor covers the new lawsuit here, in which Letty Lopez, represented by Najvar Law Firm, challenges the election based on at least 24 apparent illegal votes by non-residents and at least 16 improperly rejected mail-in ballots.  (Preliminary evidence thus shows at least 41 illegal ballots or ballots improperly rejected; this is more than double the current 16-vote margin of victory for incumbent Commissioner Lupe Rivera).  The article includes this excerpt:

“Notably, of the 55 mail-in ballots rejected for all of Hidalgo County, 53 of these rejected ballots were from Weslaco,” the lawsuit says. “This improbable number, combined with the obvious illegal registration and voting by non-residents of the district, raise the specter of outright election fraud in this contest.”

Rivera could not be reached for comment immediately Tuesday afternoon, but was scheduled to be sworn in at the City Commission meeting Tuesday evening.

“Contesting an election is not a step to be taken lightly, but when I saw the evidence the decision was easy,” Lopez said in a news release sent out by her attorney, Jarad Najvar. “We have to stand up against any political machine that would try to perpetrate this fraud.”


Four Attempts at Recalling Lubbock Councilman Have Mayor Calling for Changes to Recall Rules

Without taking a position on the local political issues, the changes suggested by the Mayor (via Fox 34 Lubbock) are already part of many charters in Texas.

“My input would be that if you had a failed recall petition on a councilman, another one couldn’t be started for a minimum of six months,” Robertson said. “That would get rid of this, ‘one after another, after another, after another.’ The other thing I would like to change is that if a councilman has less than a year left on their term, you can’t file a petition.”

Cibolo City Council Rejects Recall Attempt for November Election

Another illustration of traps for the unwary in recall petitions.  While city charters provide for recall procedures, most charters are not frequently updated. The Texas Election Code provides additional requirements and sometimes trumps contrary city provisions.  In this case, the Council reportedly rejected the recall attempt of four councilmembers because the petition was submitted too late for the election to be placed on the November ballot.  The city must comply with state rules regarding how far in advance the ballot must be prepared.  However, this seems to raise a question as to whether the City has a duty to place the election on the next available uniform election date, which would be May 2014.  

Dispute Over Charter Meaning in Rio Grande City Recall

The Monitor reports on a recall petition drive in Rio Grande City, Texas:

Citing concerns over spending, a local business owner is pushing for the recall of the mayor and most of the City Commission, but City Attorney Jacqueline Salinas indicated the man will need to gather far more signatures than he thinks.