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What happens now in HCC District 8?

As we know, after the filing-deadline shenanigans in the HCC Trustee District 8 race, brother-in-law candidate Arturo Aguilar said he was withdrawing from the ballot. As I noted at the time, that meant there were no other candidates who had filed before the deadline for that office. The question is what happens in that race?

First, are we sure that Aguilar can withdraw? If this were an even-numbered year and a partisan race, the answer would be No, as that deadline would be 74 days before the election. However, in this kind of race, Section 145.092 of the Elections Code applies:

Sec. 145.092. DEADLINE FOR WITHDRAWAL. (a) Except as otherwise provided by this section, a candidate may not withdraw from an election after 5 p.m. of the second day before the beginning of early voting by personal appearance.

(b) A candidate in an election for which the filing deadline for an application for a place on the ballot is not later than 5 p.m. of the 62nd day before election day may not withdraw from the election after 5 p.m. of the 53rd day before election day.

That makes the deadline to withdraw this Friday, September 11. Let’s assume Aguilar does so, if he hasn’t already.

Now again, if this were a general election for state or county office, and given that Aguilar’s was the only name on the ballot, there would be a prescribed procedure for replacing him; basically, the chairs of the county Republican and Democratic Parties would choose a replacement nominee by whatever internal process they have. Note that this only applies in the event of an otherwise uncontested race – had there been more than one candidate, then no replacements are chosen and whoever else was nominated from the other parties would duke it out. This was the Tom DeLay story in 2006.

But this isn’t that kind of an election. Here’s what the law says about Aguilar’s withdrawal, in Section 145.094:

Sec. 145.094. WITHDRAWN, DECEASED, OR INELIGIBLE CANDIDATE’S NAME OMITTED FROM BALLOT. (a) The name of a candidate shall be omitted from the ballot if the candidate:

(1) dies before the second day before the date of the deadline for filing the candidate’s application for a place on the ballot;

(2) withdraws or is declared ineligible before 5 p.m. of the second day before the beginning of early voting by personal appearance, in an election subject to Section 145.092(a);

(3) withdraws or is declared ineligible before 5 p.m. of the 53rd day before election day, in an election subject to Section 145.092(b); or

(4) withdraws or is declared ineligible before 5 p.m. of the 67th day before election day, in an election subject to Section 145.092(f).

145.092(b) is what applies here, so Aguilar’s name will not appear on the ballot. So far, so good, but that’s only half of the question. I do not see any statute that specifies a replacement procedure in the event that a candidate’s withdrawal leaves nobody on the ballot. So, given that Aguilar was the only candidate that filed on time, what happens if he withdraws? I can think of two possible explanations, assuming my interpretation of the law is correct up to this point:

1. There is no election for HCC Trustee in District 8, because there are no candidates on the ballot. In this case, I presume that once Abel Davila’s term expires, a vacancy will then be declared and a special election will be set, presumably for the next uniform election date in May of 2010. Which, given the possibility a special election to fill KBH’s Senate seat at the same time, could make that one of the more interesting special elections for an otherwise obscure office ever held. You know that I think that possibility is highly unlikely, but it could happen, so I mention it here.

2. The election takes place with no candidates appearing on the ballot, but with the option to write in a candidate’s name. According to Section 146.054, the deadline to file a declaration of write-in candidacy is “not later than 5 p.m. of the fifth day after the date an application for a place on the ballot is required to be filed”. I asked Hector DeLeon in the County Clerk’s office about this, and he confirmed my assumption that this means the fifth business day, and not fifth calendar day (which would have made the deadline 5 PM on Labor Day), in which case the deadline is 5 PM tomorrow, September 10. I presume Eva Loredo has filed her declaration of intent; I wonder if anyone else has.

I strongly suspect that option #2 is what will actually happen. I have a call in to the Secretary of State’s office to inquire about it. I’ll post an update when I get a response. Frankly, I don’t find either of these alternatives to be particularly appealing. The former allows for a real election, at the cost of up to six months’ vacancy of the office plus the financial cost of running the election, while the latter is basically a freak occurrence that will allow someone to be elected with a tiny minority of the total votes cast, but at least fills the seat in a timely fashion and saves the expense of a special election. Note here that since the deadline to file a declaration of intent to run as a write-in is Thursday, and the deadline to withdraw is Friday, we could theoretically wind up with a situation where there’s no candidate on the ballot and no write-in option. The only way out of that, as far as I can see, is scenario #1 above. There has to be a better way. Clearly, when Sen. Gallegos and his colleagues return to Austin in 2011, they’ll need to address this situation as well when they tweak the law to allow for an extension of the filing deadline when a to-be-unopposed candidate decides on the last day to not run.

So that’s my reading of this situation. If I’m incorrect about any of this, I hope someone will leave a comment and set me straight. As I said, when I hear back from the SOS, I’ll post an update.

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