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.
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.
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.
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.