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Averitt will step down

After flirting with the idea of remaining on the ballot in SD22, former State Sen. Kip Averitt has announced he will stay retired, thus creating a new race for SD22 this November.

Averitt retired and dropped his reelection bid earlier this year, but still managed to win his primary race without lifting a finger. The Democrats didn’t run a candidate, so Averitt was essentially a shoe-in to win an undesired reelection. Before yesterday’s special runoff election to determine his replacement for the remainder of the current term, Averitt floated the possibility of staying on the ballot if Brian Birdwell won.

Birdwell won, defeating Averitt-backed former state senator David Sibley with a decisive 58 percent of the vote. Averitt fears that Birdwell may be ineligible to run because some doubt that he has been a Texas resident for five years — the constitutional requirement for a state senator. Still, he says he will withdraw his name in “the next day or two.”

“The people have spoken,” he said, “and I respect the people.”

The issue, as noted by the linked story in the quote, is that Birdwell voted in Virginia in 2006, and would thus seem to not meet the five-year state residency requirement to serve in the Senate. That will be a matter for the courts, assuming someone files suit against Birdwell. Here’s how it may go from there.

Randall “Buck” Wood said if Birdwell was a resident of Texas in 2006, as he claims, then he possibly committed voter fraud in Virginia. But if Birdwell was a resident of Virginia in 2006, then Democrats could challenge his eligibility to run for the Texas Senate for the 2011-2012 term.

Birdwell won a special election last night to fill the unexpired term of retiring state Sen. Kip Averitt, R-Waco. Birdwell’s opponent, former state Sen. David Sibley, said during the campaign that Birdwell voted in Virginia in 2006 — a fact Birdwell does not dispute.

Wood, the election attorney, said Birdwell’s Virginia voting doesn’t necessarily disqualify him, “but darn close to it.”

The law on residency requirements is clear. According to the Texas Constitution, Senate eligibility is restricted to persons who are registered to vote in Texas, have lived in the district for a year, and have established residency in Texas five years prior to the election. Virginia law is equally clear. In order to be a registered voter in that state, he would’ve had to fill out a form swearing “under felony penalty” that he was a Virginia resident.

[...]

Wood said Birdwell’s eligibility is dependent on the establishment of “intent” to reside and “presence” in the area before the five-year limit. Wood said owning property in an area is typically not enough for the courts and physically being in an area is the usual grounds for establishing presence.

My expectation is that the courts are more likely to be lenient than harsh about this, but there’s only one way to find out. Figure a suit will be filed shortly after a Democratic nominee is picked.

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