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.
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:
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.
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.
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.
According to the court’s original briefing schedule, both parties filed their opening briefs Dec. 29, and then each side was to respond by Jan. 5 to the opponent’s brief. However, last night the Court of Appeals notified Rivera that he must amend his opening brief (because it lacked the required appendix). Now he must file the amended brief by Jan. 12. Then, Lopez must file her response by Jan. 19.
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.
On June 12 the district court announced that Letty Lopez had proved by clear and convincing evidence that last November’s election for Weslaco District 5 Commissioner was tainted by more illegal votes than incumbent Lupe Rivera’s margin of victory. (NLF represents Lopez.) Rivera immediately claimed he would appeal. Lopez requested that the district court sign a judgment that includes an expedited appellate schedule, so that District 5 may finally hold a free and fair election as soon as possible. Rivera has notified the court that he objects to the proposal to expedite the appeal, but he hasn’t provided any reason why. Instead, he has requested a hearing, which he says can’t occur until his attorney is available July 28 at the earliest. This is Lopez’s response, filed today.
See this post on the blog of The Republican National Lawyers’ Association about our victory in Lopez v. Rivera.
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.
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)
Following a pretrial hearing yesterday, trial in this Weslaco election contest is slated to proceed as planned beginning next Monday, March 24.