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Where’s Birdwell?

The Trib re-raises the question of the newest Senator’s eligibility to serve.

The newest member of the Texas Senate, Brian Douglas Birdwell, voted in the November 2004 presidential election twice, choosing between George W. Bush and John Kerry in Tarrant County, Texas, and again in Prince William County, Va., according to election records in the two states.

Voting in the same election twice is a third-degree felony in Texas.

What’s more, Birdwell’s record of voting in Virginia from 2004 through 2006 would seem to place his residency in that state, not in Texas, which could imperil his spot in the Legislature. Birdwell voted a Virginia ballot in November 2006; if that’s enough to establish him as a Virginia resident, an issue that can only be settled in court, it means he’s not eligible to serve in the Texas Senate until at least November 2011.

The voting twice issue is new, and after initially not responding, Birdwell strongly denied that allegation. He did not, however, deny voting in Virginia in 2006.

Talk of Birdwell’s eligibility dogged his campaign all along, attracting news coverage and generating talk in political circles. State law requires senators to have lived in the state for the five years before they take office and to have lived at least the last 12 months of that time in the districts they seek to serve.

Indeed, now-retired Sen. Kip Averitt briefly contemplated not retiring if Birdwell won the special election over concerns about his eligibility.

Another, earlier date — November 2006, when Birdwell last voted in Virginia — may well hold the key to whether he’s a legal candidate or not.

“It’s a piece of evidence that’s hard to refute and usually fatal,” says Randall “Buck” Wood, an Austin lawyer and a Democrat respected across the political spectrum for his mastery of election law. The residency question, as Wood sees it, puts the courts in the position of deciding whether someone did something illegal — voting in an election in a place where they don’t reside — or simply is ineligible to run in another place because of that vote. He thinks most judges would choose the second option rather than deciding the candidate in question did something criminal. The crime, if there is one, would be voting in Virginia while residing in Texas. Wood thinks a court would most likely see no crime, saying instead that the voter was a Virginia resident and voter who is simply not eligible to run for Texas Senate.

Lawyers for the Republican Party of Texas haven’t looked into Birdwell’s case, according to Bryan Preston, a party spokesman, who said the matter was left to the campaign. Texans for Lawsuit Reform, which backed Birdwell in the special election, did research the residency question and decided he is eligible, according to Sherry Sylvester, a spokeswoman for TLR. “We have endorsed Senator Birdwell, and we have contributed to his campaign,” she says. “We have reviewed the questions surrounding his residency, and like 58 percent of the voters of Senate District 22 and the eight county chairs who nominated him over the weekend, we believe he is a Texas resident.”

Yes, and Tom DeLay’s lawyers were convinced that he could be replaced on the ballot in 2006 after declaring himself a Virginia resident and withdrawing from the CD22 race. Didn’t work out too well for him, as I recall. When and if somebody files suit – my guess is that will happen shortly after the Democrats pick their own candidate and the Republicans officially tab Birdwell – we’ll see what a judge has to say. And as the Waco Trib reports, there’s more evidence that Birdwell considered himself a Virginian pretty recently:

An attorney for Sibley filed Birdwell’s voting records and other documents with state election officials, asking them to disqualify Birdwell.

After the Secretary of State’s Office stored those away, all that was left was talk and news reports along the way. But the filing at SOS supplied the factual underpinning for the argument against Birdwell’s Texas residency.

In addition to some of Birdwell’s voting records, that package includes his “resident state fishing permit” from 2006 and another from 2008 for which he paid the Virginia resident rates — lower than those paid by out-of-staters.

Those fishing licenses include this notice: “I certify that the person named on this license meets residency requirements, is eligible to buy this license, and all information on this form is true to the best of my knowledge and belief.”

That might or might not be strong evidence in a legal residency case, but it’s spice for the political argument about whether Birdwell’s candidacy is legitimate.

Like I said, we’ll presumably see what a judge thinks. I look forward to it.

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2 Comments

  1. Brad M. says:

    Unfortunately nothing’s gonna happen. If the master of election law Buck can’t put a wrestling move on the Green Party of Texas Scandal how is he gonna put a full nelson or a pile drive on Birdwell?

  2. [...] along every day. This one may be a longshot, but when you add in the possibility of Birdwell being knocked off the ballot for failing to meet residency requirements, the odds improve considerably. First, though, you need a Democratic challenger, then you file the [...]

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