Monthly Archives: January 2014

#McCutcheon opinion watch! ICYMI: Najvar and Backer op-ed on why McCutcheon must win

With each working day at the United States Supreme Court that passes, we get closer to a decision in McCutcheon. It could come tomorrow.  Here is the op-ed by myself and Dan Backer, which originally ran in October, on why a victory for Shaun McCutcheon would be an important victory for the First Amendment in all contexts.

#LopezvRivera: Lupe Rivera moves to quash 8 scheduled depositions of voters who cast mail ballots

Late Friday night, Lupe Rivera filed motions to quash the depositions of eight voters who cast ballots by mail.  The depositions were to occur Monday afternoon.  Under the Texas rules of procedure, the motions activate an automatic stay on the depositions.  While a motion to quash will not prevent these depositions, it will require them to be re-scheduled.

#LopezvRivera: Court compels deposition of homeowner where 23 people registered to vote

The New York Times recently provided the nation with a glimpse into the unfortunate political corruption that residents of Texas’s Rio Grande Valley have suffered under for far too long. In a January 12 story, the Times covered the suicide of Alfredo Lugo, President of the Donna ISD school board, which occurred days after three “politiqueras”–the familiar term for the Valley’s unique type of campaign workers–were arrested and charged in a vote-buying scheme in support of certain Donna school board candidates during the 2012 elections. As the report states, abuses by politiqueras and candidates in the Valley are widespread and extend beyond buying votes, to include various forms of voter fraud, especially with respect to mail-in ballots.  (See these additional reports by The Monitor and KRGV, including links to the federal charging documents.)

Hidalgo County DA Rene Guerra is quoted by The Times as stating that vote-buying is hard to prove and he doesn’t have the manpower to pursue illegalities in the 2012 Donna elections. However, criminal prosecution is only one enforcement tool available to right election improprieties.  Candidates themselves have tremendous power–and in fact are the only persons with legal standing under Texas law–to prosecute an election contest which can establish illegal votes and permit a court to either conduct its own recount or call a new election.

One such case is currently pending in Hidalgo County district court and moving toward a February trial.  Letty Lopez lost a campaign for Weslaco City Commission (District 5) by 16 votes to incumbent Lupe Rivera.  Lopez has never held elective office and is part of a slate of candidates who campaigned on transparency, among other things.  While Lopez and Rivera each received the same number of votes on Election Day (85), and Lopez received many more in-person early votes than Rivera, Rivera racked up a large enough margin in ballots cast by mail to make up the difference and claim a 16-vote victory.  Red flags were immediately apparent, however, including a single-family residence in District 5 that claimed 23 registered voters.  Lopez retained Najvar Law Firm and filed an election contest on November 18. (NLF is the author of this blog.)  You can find Lopez’s FIRST AMENDED PETITION here.  Lupe Rivera is represented by Gilberto Hinojosa of Brownsville, the current chair of the Texas Democratic Party.  This case presents a critical opportunity to achieve justice in a case of apparent voter fraud, including allegations of non-resident voting and various illegalities with mail-in votes handled by the Rivera campaign, and this week has been particularly instructive.

Lopez, of course, subpoenaed the homeowner of the residence boasting 23 registered voters. He failed to appear for his deposition, necessitating a motion to compel and court hearing.  Hinojosa threatened NLF with sanctions if we proceeded with the motion to compel, claiming that the process server had actually served the homeowner’s son by mistake.  We were confident our process server had served the correct person, and proceeded with the hearing on Wednesday, January 22.  The hearing proved to be very informative.

Lopez called her process server to the stand, who testified in great detail about how he went to the home in question and spoke with the homeowner, who confirmed he was the correct individual. The server testified that the homeowner and his wife both personally accepted their respective subpoenas.

Questioning the server on cross, Mr. Hinojosa pointed to a man sitting in the front row of the courtroom wearing dark sunglasses, and asked if this was the man who had actually been served.  The server answered no, the man he served was much older.  When Hinojosa was done, Najvar called the (as yet unidentified) man to the stand.  Citing no rule, Hinojosa objected that Najvar couldn’t call a witness to testify unless he knew the witness’s name. In response, Najvar turned to the man, still seated in the audience, and asked his name.  The man sat silent, looking straight ahead.  Hinojosa again objected, stating that the unidentified man was under no obligation to answer the question since he was not under oath.  To summarize, Mr. Hinojosa’s position was that the man Hinojosa had hauled to court to try and undercut Lopez’s process server’s testimony did not have to identify himself because he was not under oath, and could not be called to the stand unless Najvar was aware of his name.

The court overruled the objection and required the man to take the stand.  Upon questioning, he revealed his name, identifying himself as a son of the man who was the target of the subpoena, and claimed that he was the one who received the subpoenas for both of his parents.  He acknowledged that he was more than 30 years younger than his father.  Najvar re-called the process server, who again disputed the man’s testimony and explained in detail how he had personally served both of the individuals subpoenaed.

The court found the process server to be credible, the man proffered by Hinojosa to be not credible, and concluded that the homeowner had been personally served.  Consequently, the court granted Lopez’s motion to compel, ordering the deposition to occur Monday, January 27 at 9 am.

Monitor Editorial: New blood on Weslaco City Commission peels back layers of secrecy

Editorial here, discussing questions being raised by newly-elected Weslaco, TX Commissioners and Mayor as to practices of the city manager and the old guard.  Najvar Law Firm is representing District 5 candidate Letty Lopez in an election contest against Lupe Rivera (who made not a “peep” during the questioning).  The Rivera campaign benefited from what appears to be outright voter fraud.  If Lopez replaces Rivera, the minority becomes the majority.

*This post has been edited to correct a typo.