Category Archives: Texas election contests

Hearing Wednesday June 13: District Court to Decide City of Houston’s Attempt to Prohibit Testimony in Suit Challenging Billion Dollar Pension Bond Deal

FOR IMMEDIATE RELEASE                                                                      Contact: Jerad Najvar

Hearing Wednesday as City of Houston Seeks to Avoid Depositions of Its Employees Regarding Pension Bond Lawsuit 

HOUSTON, TEX.—On Wednesday, June 13, at 3:30 pm in the Harris County District Courthouse, the district court will hold a hearing to consider the City of Houston’s attempt to avoid producing key witnesses to answer questions regarding the billion dollar bond measure from November 2017 that has been challenged as materially misleading to the voters.

Concerned Houston taxpayer James Noteware filed a lawsuit in December challenging the City’s use of deceptive language on the November ballot with regard to Proposition A, which asked voters to approve a billion dollars in additional city debt for the Mayor’s pension plan.  The lawsuit argues that the ballot was materially misleading because, while it correctly disclosed that the City would issue the pension bonds and levy taxes to pay for them, it conveniently omitted the fact that those taxes would not be subject to the default limits in the city charter, including the limit on the annual growth of property taxes. This effectively created a massive exception to the charter limits without telling voters.  Although the bonds have been issued, Noteware’s lawsuit, if successful, will protect the property tax cap and nullify the City’s authority to tax outside of the cap or other charter limits.

Noteware has subpoenaed two witnesses from the City of Houston to discuss issues related to the lawsuit.  One is Melissa Dubowski, a high level employee of the city finance department whom the City itself actually put forward as a witness in an earlier hearing in the case, when it wanted her to testify about why the pension deal had to close without delay before the end of 2017.  Documents produced in discovery now reveal that the City actually had three more months to finish the deal under its contracts with the pensions, but the City shoveled all the money out the door and has now used that fact to argue that the case is moot. Now that Noteware wants to ask his own questions of this witness rather than relying solely on the self-serving affidavit the City drafted for her, the City suddenly claims her testimony is not relevant.

Documents also now reveal the disconcerting fact that Mayor Turner all along has planned to use city utility fees to pay a portion of the costs of the bonds.  This may explain how Mayor Turner was able to campaign on the claim that “no new taxes” would be required to pay the bonds off, which accumulate to approximately $1.8 billion with accrued interest through 2047:  if utility fees are not technically a “tax,” then perhaps the Mayor’s “no new taxes” claim was technically accurate while being materially deceptive.  The failure to tell voters that they would be hit on their utility fees as well as their property taxes is another reason why the November ballot was materially deceptive. Noteware has requested the City to produce a witness who can explain what authority the City has—if any—to use utility and other such enterprise or special fund revenues to pay the bonds.  The City’s official response to the Court claims unabashedly that they have such authority, and they did not have to tell the voters about such plans at the time of the vote.

The hearing details are as follows, and Noteware and counsel will be available for questions afterward:

Wednesday, June 13 at 3:30 p.m.

Harris County Ct. at Law No. 2  133rd District Courtroom (Fifth Eleventh Floor)

201 Caroline

Houston, TX 77002

SEE NOTEWARE’S MOTION TO COMPEL RESPONSES HERE

SEE THE CITY OF HOUSTON’S RESPONSE HERE

The case is Noteware v. Turner, No. 2017-83251, presided over by visiting judge Mark Morefield of Liberty County.

Jerad Najvar specializes in litigation and appeals in election and constitutional matters, and is founder of Najvar Law Firm, PLLC in Houston. He secured a federal-court judgment in 2014 striking down Houston’s former campaign “blackout period,” which prohibited candidates from fundraising until the last nine months before an election.

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NLF moves Corpus Christi Court of Appeals to publish important 2015 illegal-voting decision

In May 2015, the Thirteenth Court of Appeals in Corpus Christi, TX affirmed a judgment in a Hidalgo County election contest which found by “clear and convincing evidence” that thirty illegal votes had been cast in a race with a 16-vote margin of victory, and ordering a new election.  In full disclosure, NLF represented the prevailing party, Letty Lopez, and Lopez won the ensuring court-ordered election in November 2015.  This week, NLF filed a motion with the court of appeals requesting that the opinion be officially published.  This is somewhat inside baseball, but the opinion was designated a “memorandum opinion” upon release, meaning that, while it is still binding precedent and available in online legal databases, it would not appear in the Southwestern Reporter volumes.  We believe it is important that this opinion is accorded the weight it deserves, as it was the first time the Thirteenth Court of Appeals has addressed several critical issues regarding residency and mail-in ballot fraud and illegal voting.  The opinion shows that the voter residency requirement does have teeth and can be enforced.  Also, critically, it affirms that failure to disclose required information on a carrier envelope where someone takes the envelope from the voter to mail will render the ballot uncountable.

Reported #voterfraud investigation in Nueces County, Texas

I just noticed this story from the Corpus Christi Caller-Times, reporting on an apparent investigation by state authorities into allegations that campaign workers filled out a voter’s mail-in ballot without his direction:

“He said he had a mail in ballot, but it had already been filled out,” Franklin said. “I asked if (Gonzalez) had helped him, and he said, ‘No, she took it from me and she filled it out the way she wanted to.’

“There’s so much fraud there it’s unbelievable,” she added.

Franklin, who has been working Nueces County elections for about 15 years, said a relative of Flores “brought in people every day that she didn’t seem to know.”

This type of fraud is commonplace in the Rio Grande Valley, and was part of the reason Letty Lopez prevailed in her election contest and the court ordered a new election.

Election Manipulation Dies Hard in Weslaco, Texas

capture-berrones-1

The testimony above is from the Feb. 4, 2014 deposition of Maria Berrones, a proud Weslaco voter who has some experience with current candidate for Wesalco Commission District 5, Lupe Rivera, Jr.

Recently, Rivera, Jr. announced that he would challenge Letty Lopez for the District 5 Commissioner seat, providing another chapter in this ongoing struggle against illegal voting practices in South Texas.

After a four-day trial in March 2014, Letty Lopez, represented by Najvar Law Firm, won a landmark election contest.  She proved 30 illegal votes were cast in the November 2013 election between Lopez and Lupe Rivera, Sr, nearly twice the margin of victory. Ten of those votes were cast by friends and relatives of Lupe Rivera, Sr., who registered to vote in District 5 but did not live in District 5. Twenty votes were illegal because the Rivera campaign had violated one or more Election Code statutes specifically passed to protect against coercion or fraud in mail-in balloting. The district court ordered a new election. Najvar Law Firm successsfully defended the case on appeal, and that opinion–from Texas’s Thirteenth Court of Appeals in Corpus Christi–provides a valuable precedent enforcing the residency requirement in the Election Code, and the anti-fraud provisions regarding mail-in ballots.

Back to Maria Berrones.  Her testimony proved devastating to Rivera’s defense, because here-for once-was a rare example of someone willing and able to testify to exactly the type of coercion and abuse of elderly mail-ballot voters that is commonplace in South Texas elections. She said she requested a mail-in ballot because Lupe Rivera, Sr. had come by her house and suggested that she vote by mail. He told her to call him when the ballot arrived, and not to give it to anyone else. He showed up at Berrones’ house after it arrived, even before she called. She handed it to him and he filled it out. He didn’t ask how she wanted to vote. He handed it to her to sign, then left in a hurry because he had to visit other people.

Berrones’s family was incensed when they heard what happened, and tried to take her to vote in person with them, hoping they could cancel the mail ballot. Berrones testified that she wanted to vote for Lopez. But the poll workers told her that the mail ballot had already been counted, so she could not vote:

capture-berrones-3

After trial, the district court found the evidence sufficient to conclude that the ballot was illegal, and that since Rivera had completed the ballot, he had “voted for himself,” and the court deducted the vote from Rivera’s total.

Apparently Lupe Rivera, Jr., who had helped his father collect the mail ballots, had an idea that Berrones’ testimony would be devastating. So after she had been subpoenaed by Lopez for a pre-trial deposition, Rivera, Jr. went to her house and tried to convince her not to show up.

capture-berrones-2

Thankfully, to her great credit, Ms. Berrones showed up and testified courageously.  Her testimony was critical to the case and provides a window into the tactics used in coercing and taking advantage of ballot by mail voters. There were 29 other votes the court also threw out.  Weslaco got a new election, and Letty Lopez defeated Rivera Sr. in the rematch in November 2015.

Weslaco residents filed a criminal complaint with the Texas Secretary of State based on evidence from the election contest, and the Attorney General’s office filed 16 misdemeanor charges against Lupe Rivera, Sr. and two against Lupe Rivera, Jr.  Senior pled guilty to unlawful assistance of a voter, i.e., “while assisting Maria Berrones…knowingly prepar[ing] the voter’s ballot in a way other than the way the voter directed or without direction from the voter,” and got a year in jail (suspended during community supervision) and $500 fine. The state prosecutor testified in a legislative hearing in Austin in September that the Weslaco case illustrated an example of how elections are tained by manipulation of voters through false pretenses. Apparently the prosecutors dropped charges against Junior on account of Senior’s guilty plea.

So, naturally, Lupe Rivera, Jr., who desperately tried to convince an elderly woman to disobey a subpoena, is now running to take back the seat that his father lost after Lopez proved in court that the Rivera campaign had harvested 30 illegal votes.

rivera-jr-sign

One lesson from this is that rooting out these practices and restoring integrity to elections in South Texas–famous for Lyndon Johnson’s “ballot box 13” that miraculously put him over the top in 1948’s Senate elections–will require a sustained effort. I hope the voters of Weslaco turn out in droves in November and send a message in this election.

Opening briefs filed in Corpus Christi Court of Appeals in case raising important voter residency and ballot by mail fraud issues

After a four-day trial in March 2014 (see case timeline at bottom of story), a Hidalgo County district court found by clear and convincing evidence that 30 votes had been illegally cast in a race for Weslaco City Commission, wiping out incumbent Lupe Rivera’s 16-vote victory and requiring a new election.  Central to the case are two issues common across the Rio Grande Valley: residency requirements (voting by persons who do not reside in the electoral district) and failure to follow the strict disclosure requirements enacted to prevent ballot by mail fraud.  Once Rivera appealed the decision, Lopez filed a cross-appeal, arguing that the court should have thrown out eleven more illegal votes.

Both sides filed their opening briefs December 29.  Responses are due January 5.  Lopez’s opening brief is below.  Disclosure: NLF represents Lopez at trial and on appeal.

Letty Lopez files request to expedite any appeal of her election contest victory in Weslaco

Letty Lopez filed the below motion today requesting an expedited schedule if Lupe Rivera files an appeal.  Yesterday, Lopez filed a proposed judgment which included a proposal for an expedited appeal, should any appeal be filed, as permitted by the election code.  Rivera’s attorney immediately emailed Lopez’s attorney indicating that Rivera would object to any expedited appellate schedule.  In light of this objection, Lopez filed the motion below, providing an explanation as to why the court has the authority to expedite the appeal and why it should do so in this case, rather than permitting Rivera to delay resolution of this case.

20140619 motion for expedited briefing on appeal Lopez

#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

#LopezvRivera update: Judge will announce his decision in Weslaco election contest June 12

Judge Menton Murray, Jr. has set a hearing for June 12 at 10:00 am, at which he will announce his decision as to each challenged vote in the election contest between Leticia Lopez and Lupe Rivera for Weslaco City Commission District 5.  The hearing will be at the 139th District Court in Edinburg.

The trial in this case was held March 24-27, and after briefing by both sides, closing argument was held April 25.