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Birnberg files complaint to force Oliver off the ballot

I’m far from thrilled to have Lloyd Oliver as the Democratic nominee for District Attorney, but this seems a bit much to me.

Gerry Birnberg, the former party chair, filed a complaint earlier this month to have Oliver removed from November’s ballot because he praised the sitting district attorney, Republican Pat Lykos.

Specifically, Birnberg said in his complaint, Oliver told the Houston Chronicle in May that Lykos was such a good candidate that she “would have gotten my vote.”

[...]

Birnberg said he was not retaliating against Oliver for beating Zack Fertitta in the primary, but said he is concerned about Oliver’s loyalty and the Republican strategy.

“I believe the Republicans are planning on using his colorful past as a way to bring down the entire ticket,” Birnberg said.

He also said he expects loyalty to Democrats across the ticket, “and if a candidate is saying that ‘Republicans are still good candidates too,’ that’s not helpful for the Democratic party.”

So much to cover here, but let me start off by noting that Gary Polland was the first to report this:

This hasn’t made the local media yet, but former Democratic Chair Gerald Birnberg has made a complaint designed to remove Democratic “accidental” District Attorney candidate Lloyd Oliver from the ballot. This is an interesting development.

TCR wonders, do the D’s intend to remove and replace with a handpicked star who they think could take advantage of the nasty GOP primary battle between incumbent Pat Lykos and successful primary challenger Mike Anderson? Do the Democrats think that they can convince enough swing and Lykos loyalists to vote their way, and win a tight battle? Maybe it’s time for the Anderson group to smoke the peace pipe with District Attorney Lykos and her supporters.

Birnberg is worried that the Republicans will user Oliver as a club against the Democrats elsewhere on the ticket. Polland is worried that the residual acrimony from the Anderson-Lykos primary could let Oliver win a race he has no business winning. We live in interesting times.

I’m sure that Birnberg and Polland have both forgotten more election law than I’ll ever know, but I don’t see how the Dems can do this. For one thing, the case Birnberg is making seems exceedingly weak to me. I mean, the Democratic Speaker of the State House in 2000 (Pete Laney) endorsed George Bush for President, and he was far from the only Dem to do so back then. Compared to that, Oliver’s words barely register. I mean, they’d be grounds to remove him as a precinct chair, but to declare him ineligible as a nominee? I just don’t see it. Oliver is an idiot, but unless he chooses to withdraw I’m afraid we’re stuck with him.

Assuming that HCDP Chair Lane Lewis buys the ineligibility argument, it’s also not clear to me that Oliver can be replaced. Section 145 of the Elections Code doesn’t specifically address the question of replacing candidates who have been declared ineligible on the ballot, but Sec 145.039 says “If a candidate dies or is declared ineligible after the 74th day before election day, the candidate’s name shall be placed on the ballot”. By my calculation, that makes the deadline this Friday, the 24th. I have no idea if the machinery can be made to move swiftly enough to allow for this, again in the event that Lewis goes along with Birnberg’s complaint. It just adds to my incredulity about this.

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  1. [...] say again what I said originally. I don’t see what leg the HCDP has to stand on. I hope I’m wrong and that they really [...]

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