The full 4th Circuit Court of Appeals has overturned its preliminary ruling and declared Henry Cuellar the winner of the 28th CD Democratic primary over Rep. Ciro Rodriguez.
The 5-2 ruling ends Rodriguez's bid in state court to overturn the 58-vote lead held by Laredo lawyer Henry Cuellar in Congressional District 28."This is the moment our campaign has been waiting for," Cuellar said in a statement. "We have won at the polls and we have won in the courtroom. Now it's on to November and victory."
Rodriguez, reached by phone in Washington, said he and his campaign team will examine other legal avenues open to challenge Monday's ruling. He would not rule out the possibility that he will try to get his case heard in federal court.
"There's no doubt that I'm not going to let this one go," he said.
But no matter how it shakes out this year, Rodriguez says, expect to see him back on the campaign trail in 2006.
"If I'm the congressman, I'm running for re-election," he said. "And if I'm not the congressman, I'm still running for re-election."
In late June, a three-judge panel of the 4th Court sided with Rodriguez by a 2-1 vote that overturned a lower judge's ruling that the incumbent could not challenge eligibility of hundreds of voters in Webb and Zapata counties because the issue was not raised properly.
Cuellar, a longtime Democratic legislator who served as secretary of state under Republican Gov. Rick Perry, appealed and persuaded the full seven-member court to hear the issue.
On Monday, the 4th Court vote broke along party lines, with the five GOP justices in the majority and the two Democrats dissenting.
The two Democrats comprised the majority in the original ruling that was reversed.
"This send a very unfortunate message," Rodriguez said of the party-line decision.
"From the very beginning all we have asked is to have our day in court," he continued, "and over one little ruling or another or one technicality or another, we have not had our opportunity to be able to do that."
Rodriguez, from San Antonio, led by 145 votes on primary election night, but Cuellar swung into the lead during a districtwide recount.
Most of Cuellar's recount support came when more than 200 previously untallied ballots were discovered in Webb County, where he lives, and neighboring Zapata County.
Rodriguez filed suit in early April, alleging irregularities in the "casting, counting and recounting" of ballots in the two counties.
Later that month, he amended his lawsuit by adding details of the alleged irregularities involving "more than 100" voters. He claimed some of the voters didn't live in the district, while others gave false information to election officials in order to cast ballots.
Cuellar challenged the amended lawsuit, saying it raised new claims after the filing deadline, and that it also amounted to a legal ambush too close to the trial date.
State District Judge Joseph Hart agreed with Cuellar on both counts. He ruled that Rodriguez could only challenge the outcome of the election recount at trial, not the eligibility of individual voters.
Chief Justice Alma Lopez and Justice Catherine Stone, the 4th Court's two Democrats, wrote that Rodriguez has a right to question the legality of the votes and that Cuellar had sufficient notice to defend himself.
But Justice Paul Green, who issued a scathing dissent in the first appeals ruling and wrote Monday's majority decision, said that Rodriguez was trying to bring a completely different allegation to trial.
"Because Rodriguez's original petition did not have a single page, paragraph, sentence or word referring to anyone as having voted illegally," Green wrote, "any reasonable person ... would be led to conclude that the sole basis for his election (lawsuit) was the vote count."
As it stands now, Cuellar will oppose Republican nominee Jim Hopson of Seguin in the November general election in the heavily Democratic district.
"We will take nothing for granted," Cuellar said. "We will continue to aggressively campaign throughout all 11 counties (in the district) until the last vote is counted."