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Ramon Romero

Court throws out State House map

Once more, with feeling.

Parts of the Texas House map must be redrawn ahead of the 2018 elections because lawmakers intentionally discriminated against minorities in crafting several legislative districts, federal judges ruled on Thursday.

A three-judge panel in San Antonio unanimously ruled that Texas must address violations that could affect the configuration of House districts in four counties, where lawmakers diluted the strength of voters of color. In some cases, the court found mapdrawers intentionally undercut minority voting power “to ensure Anglo control” of legislative districts.

These are the nine districts the court flagged:

  • Dallas County’s HD 103, represented by Democrat Rafael Anchia, HD 104, represented by Democrat Roberto Alonzo and HD 105, represented by Republican Rodney Anderson
  • Nueces County’s HD 32, represented by Republican Todd Hunter, and HD 34, represented by Democrat Abel Herrero
  • Bell County’s HD 54, represented by Republican Scott Cosper, and HD 55, represented by Republican Hugh Shine
  • Tarrant County’s HD 90, represented by Democrat Ramon Romero, and HD 93 represented by Matt Krause.

Adjusting those boundaries could have a ripple effect on other races.

[…]

In both the congressional and state House rulings, the court ordered Attorney General Ken Paxton to signal whether the Legislature would take up redistricting to fix violations in the maps.

But so far, state leaders have signaled they have no appetite to call lawmakers back to Austin over mapmaking. Instead, Texas is looking to the U.S. Supreme Court to keep its political boundaries intact.

“The judges held that maps they themselves adopted violate the law,” Paxton said in a Thursday statement. “Needless to say, we will appeal.”

Meanwhile, the state and the parties that sued over the congressional districts are scheduled to return to court on Sept. 5 to begin redrawing the congressional map. In its Thursday ruling, the court indicated they should be prepared to also meet on Sept. 6 to consider changes to the state House map.

“Today’s ruling once again found that Texas racially gerrymandered its voting districts and used Latino voters as pawns in doing so,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, who is representing plaintiffs in the case. “With the 2018 election cycle fast approaching, it’s time for Texas to stop discriminating against Latino voters and agree to a remedy that will provide equal opportunity to all.”

It was just over a week ago that the same court invalidated the Congressional map, also calling it intentionally discriminatory. Add in the voter ID ruling and you’ve got three such judgments in a span of eight days; you can also toss in the ruling on interpreters for a four-game losing streak for the state. Don’t forget the Pasadena case, too – it’s not the state, but it is another intentional-discrimination opinion. Maybe this will all add up to enough to convince Chief Justice Roberts to change his mind about the state of voting rights and the need to protect communities of color.

Or not. I wouldn’t hold my breath. Be that as it may, this ruling could have an effect on the effort by wingnuts to oust House Speaker Joe Straus. RG Ratcliffe explains.

The court found that in Nueces County, the district maps discriminated in the placement of minority voters in a way that favored the re-election of Representative Todd Hunter, a key Straus Republican ally and chairman of the House committee that sets bills for debate on the daily calendar. To make his district safe, the court said Hispanic voters were packed into the district of Representative Abel Herrero, a Democrat. Redrawing the districts won’t automatically guarantee Hunter’s defeat, but it will make it more difficult for him to win re-election.

The court also ruled that the Legislature intentionally split a minority community in Killeen to guarantee the election of two white Republicans in Districts 54 and 55, Scott Cosper of Killeen and Hugh Shine of Temple. Both have backed Straus in the past. Putting the minority community in Killeen back together probably endangers Cosper’s re-election, and may put a Democrat in that rural district. Either way, this likely is a wash in the politics of electing the next speaker.

In Dallas and Tarrant counties, the court ruling likely would help Straus win re-election. In declaring that five districts in those two counties discriminated against minorities, the most likely losers in any redrawing of the district maps will be Republican Representatives Rodney Anderson of Irving and Matt Krause of Fort Worth. Anderson was among nineteen House members who voted against Straus in one election for speaker, and Krause is a member of the Freedom Caucus, which has been trying to force a speaker vote in the caucus instead of on the House floor, where Democrats also have a say.

Anderson barely squeaked by in 2016, in a district that was ever so slightly bluer than HD107, which flipped to the Dems. He was going to be a target no matter what. The ripple effect in Dallas could be very interesting. And of course, anything that puts jerks like Krause in jeopardy is a good thing. We’ll know if and when SCOTUS intervenes if a second special session will be forthcoming. A statement from MALC is here, and Michael Li, the Chron, the DMN, Rick Hasen, the HuffPost, and the Lone Star Project have more.

Harris County Attorney files amicus brief in SB4 lawsuit

Good.

Last week, Harris County Commissioners Court opted not to join a lawsuit challenging the state’s controversial “sanctuary cities” law as unconstitutional.

Harris County Attorney Vince Ryan, however, has filed a brief asking a federal court to halt its implementation on Sept. 1.

“S.B. 4 will do irreparable damage to this State’s child welfare process, place county attorneys charged with representing DFPS in an irreconcilable conflict, and do further trauma to children who have been placed in the State’s care. Further, there is no legitimate state purpose in treating children who have an unauthorized immigrant parent or other potential care giver differently in child welfare cases,” states Ryan’s brief, which was filed this month in federal court.

[…]

Special Assistant County Attorney Terry O’Rourke said that come Sept 1., with no injunction stopping SB4’s implementation, the county attorney’s office does not know how it will handle certain child welfare cases.

“That’s an ethical hell that we do not want to experience, and that’s why Vince Ryan has asked the federal court for guidance,” O’ Rourke said.

You can see the specific objections in the story. This is not as good as if Commissioners Court had voted to join the litigation, but it’s something. In the meantime, Cameron County and the city of Laredo have joined the plaintiffs, and there are a couple of bills to repeal SB4 that have been filed for the special session, though of course neither of them will get anywhere. It’s still important to make the stand, and in the better-late-than-never department, business interests are weighing in as well. It’s hard to overstate how much damage the Republicans in charge have done to Texas’ reputation this year, and there’s still more to come. Stace has more.

Fifth Circuit to hear AALDEF lawsuit appeal

This happens today.

Amid last-minute efforts to overhaul the state’s voter identification law in light of an ongoing legal fight, the Texas Legislature gaveled out without addressing another embattled election law that’s now moving forward in federal court.

The U.S. 5th Circuit Court of Appeals on Thursday will take up a legal challenge to an obscure provision in the Texas Election Code that requires interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help.

That state law has been on hold since last year after a federal district judge ruled it violated the federal Voting Rights Act under which any voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.

“There’s nothing that’s being imposed. The state just needs to get out of the way,” said Jerry Vattamala, director of the Asian American Legal Defense and Education Fund’s democracy program.

[…]

“I don’t see how we could in legislative action place a criteria that would limit it more than a constitutional standard,” said state Sen. Sylvia Garcia, D-Houston, who filed one of the measures during this year’s regular legislative session that would’ve only left in place the assistor provision. “I just don’t think the state is serious about the right to vote or access to the election box. We just seem to bend over backwards to place barriers instead of working to increase voter turnout.”

Her legislation to bring the state in line with federal law languished in the Senate State Affairs Committee after colleagues raised concerns that it would allow voters to obtain help at the polls from noncitizens, Garcia said. The voter registration requirement by default requires the interpreter to be a U.S. citizen and 18 years old.

But sometimes voters ask their minor children to help them cast their ballots, Democratic state Rep. Ramon Romero of Fort Worth told the House Elections Committee during an April hearing. His proposal was similar to Garcia’s and also did not advance out of committee.

Despite the intricacies between interpreters and assistors, the case could ultimately come down to a question of standing if the state has its way.

See here, here, and here for the background. There was a simple legislative fix to what really shouldn’t have been a problem in the first place – the state even admitted that the Williamson County election officials who created the fuss in the first place acted incorrectly – but nothing got done. The state is now claiming that the plaintiffs lack standing to pursue this litigation as the original voter has passed away, and I have a sinking feeling that if the Fifth Circuit doesn’t buy that argument, SCOTUS might. We’ll just have to see.

Session ends in chaos

Seems fitting.

The normally ceremonial last day of this year’s regular session of the Texas Legislature briefly descended into chaos on Monday, as proceedings in the House were disrupted by large protests and at least one Republican representative called immigration authorities on the people making the noise.

Rep. Matt Rinaldi, R-Irving, said he called U.S Immigration and Customs Enforcement while hundreds of people dressed in red T-shirts unfurled banners and chanted in opposition to the state’s new sanctuary cities law. The action enraged Hispanic legislators nearby, leading to a tussle in which each side accused the other of threats and violence.

Rinaldi said he was assaulted by a House member who he declined to name.

“I was pushed, jostled and someone threatened to kill me,” Rinaldi said. “It was basically just bullying.”

Hispanic Democratic lawmakers involved in the altercation said it wasn’t physical but indicated that Rinaldi got into people’s faces and cursed repeatedly.

“He came up to us and said, ‘I’m glad I just called ICE to have all these people deported,’” said state Rep. César Blanco, D-El Paso, whose account was echoed by state Reps. Armando Walle, D-Houston, and Ramon Romero, D-Fort Worth.

“He said, ‘I called ICE — fuck them,'” Romero added. Rinaldi also turned to the Democratic lawmakers and yelled, “Fuck you,” to the “point where spit was hitting” their faces, Romero said.

[…]

“Matt Rinaldi gave the perfect example of why there’s a problem with SB 4,” said state Rep. Ramon Romero, D-Fort Worth. “Matt Rinaldi looked into the gallery and saw Hispanic people and automatically assumed they were undocumented. He racial profiled every single person that was in the gallery today. He created the scenario that so many of us fear.”

And in a press conference, following the altercation, state Rep. Justin Rodriguez, D-San Antonio, said Rinaldi in a second scuffle had threatened to “put a bullet in one of my colleagues’ heads.”

But Rinaldi defended the decision to called immigration authorities.

“We didn’t know what to do,” he said. “A lot of people had signs that said ‘We are illegal and here to stay.’”

He said he called law enforcement “to incentivize them to leave the House.”

“They were disrupting,” he said. “They were breaking the law.”

Asked if the protest was too little, too late since the measure has already been signed into law, Adrian Reyna, an organizer with United We Dream, said the movement is just getting started.

“We have to show resistance the whole summer,” he said. “We have identified key representatives that we will take out of office who voted for SB4. People are outraged, people are tired of the Legislature walking all over people.”

First of all, good Lord Rinaldi is a weenie. What a pathetic display of phony bravado. And as Rep. Romero suggests, his words will only help the plaintiffs in the anti-SB4 litigation. Words matter, and judges in the travel ban litigation have made it clear they will take what politicians say about these actions as seriously as they take what the lawyers say.

You can see video of what happened here, Democratic response to what happened here, and a statement from the AFL-CIO here. If there’s going to be an injunction in one or more of the court cases, we ought to know fairly soon, but the bigger fight, both in the courtroom and at the ballot box, will play out over a much longer period. We’re going to need to see a lot more of the kind of action that makes people like Matt Rinaldi cry. The Chron, the Observer, and RG Ratcliffe have more.

Bill to fix voting interpreters considered

This needs to happen, and it really shouldn’t be a big deal.

Sen. Sylvia Garcia

Almost three years after Mallika Das, a naturalized citizen who spoke Bengali, was unable to vote properly because she was not proficient in English, Texas lawmakers are considering a change to an obscure provision of Texas election law regarding language interpreters.

Members of the Senate State Affairs Committee on Monday took up Senate Bill 148 by Democratic state Sen. Sylvia Garcia of Houston, which would repeal a section of the state’s election code that requires interpreters to be registered voters in the same county they are providing help.

The measure will ensure that voters are able “to meaningfully and effectively exercise their vote,” Garcia told the committee. “This ensures that voters have the capacity to navigate polling stations, communicate with election officers and understand how to fill out required forms and answer questions directed at them by any election officer.”

Garcia’s proposal comes amid an ongoing legal battle over the state’s interpreter provision in a lawsuit brought by the Asian American Legal Defense and Education Fund on behalf of Das, who has since died, and the Greater Houston chapter of the Organization of Chinese Americans.

Because she had found it difficult to vote in the past, Das in 2014 brought her son, Saurabh, to help her cast her vote at a Williamson County polling place. But when her son told poll workers he was there to interpret the English ballot for his mother, they ran into the state’s interpreter requirements. Saurabh could not serve as an interpreter for his mother because he was registered to vote in neighboring Travis County.

[…]

One provision of the state election code allows for “assistors.” It says voters can receive help reading or marking a ballot and states that assistance “occurs while the person is in the presence of the voter’s ballot.”

Yet a separate provision allows voters to select an “interpreter” to help them communicate with an election officer and “accompany the voter to the voting station for the purpose of translating the ballot to the voter.” The interpreter, unlike an assistor, must be registered to vote in the same county.

In Das’ case, had her son simply told poll workers he was “assisting” his mother — and not that the assistance involved interpreting the ballot for her — he would have been able to go into the voting booth with her.

Garcia’s proposal would essentially consolidate all forms of assistance and remove any requirements related to voter registration.

While the measure has picked up support by the Texas Association of Election Administrators, representatives with the Harris County Clerk’s Office, including Ed Johnson, testified against Garcia’s proposal.

“In Harris County, we think the role of an interpreter is different to the role of an assistant,” Johnson said, adding that the issue was a currently a “moot point” because the law has been put on hold and court is “still working through that process.”

See here, here, and here for the background. The lawsuit in question is being appealed to the Fifth Circuit, but if Sen. Garcia’s bill were to pass, it would (I assume) moot the issue. I honestly don’t get the argument against this, but that doesn’t mean Stan Stanart isn’t going to do Stan Stanart things. Sen. Garcia’s bill was left pending in committee, and an identical bill by Rep. Ramon Romero was not withdrawn from the House Elections Committee schedule, so there has been no action taken yet. Contact your Senator on the State Affairs Committee if you want to see this bill get passed.

Crowler conundrum concluded

Finally.

Mike McKim held an empty aluminum can under a tap and pulled the handle, filling the can with Real Ale Brewery’s Helles beer. He fitted a pull tab lid on top, slotted the can into his “crowler” machine, and pushed a button. He told the story of the equipment’s origins, invented by Colorado-based brewery Oskar Blues.

Then the founder of Cuvée Coffee in Austin explained how the state of Texas took it away from him, fined him more than $30,000, kept it for months after judges told them to return it and sparked a lawsuit that cost him more than $40,000 in legal fees.

“[TABC charged us with] illegally manufacturing an illicit product,” McKim said. “Basically, brewing beer. We’re not brewing beer. We buy beer, put it on tap, and put it in a can. Who cares whether I’m putting it in this little Dixie cup or in a bottle or a can, what difference does it make? And that’s why we went to court.”

McKim’s battle with the Texas Alcoholic Beverage Commission officially drew to a close on Thursday, when he got his crowler machine back after more than a year of separation. The coffee bar sold its first crowler since 2015 on Friday. And McKim’s story has inspired two pieces of legislation this session.

[…]

Cuvée Coffee’s story became the impetus for HB 908, which allows draft beer to be sold for off-premise consumption in both crowlers and growlers. Its author, state Rep. Ramon Romero, Jr., D-Fort Worth, wrote a letter to TABC Executive Director Sherry Cook early March this year admonishing the agency for its failure to return Cuvée’s machine months after a judge ordered them to do so.

“TABC has so many other things to worry about,” Romero said. “We’ve been working with TABC to crack down on human trafficking, bars taking advantage of women, to some degree creating environments that are very dangerous for women. We’ve been working on all these things and if it was up to me, that would be what they’re focusing their attention on — not small businesses trying to innovate.”

On Monday morning, McKim testified in support of SB 813 and told the Senate Affairs Committee he had to spend $41,300 fighting the TABC over the crowler machine. Sen. Bryan Hughes, R-Mineola, said he filed the bill to give individuals and businesses the ability to sue regulatory agencies for unreasonable regulatory actions. He hopes it will deter agencies from pursuing potentially frivolous regulatory actions.

“If I’m an agency and I’m messing with a Texan, there is no downside, no risk from the agency’s standpoint,” Hughes said. “There’s nothing keeping the agency from pursuing a frivolous action. If they lose in court and appeal like they did with Mr. McKim, there’s nothing keeping them from pulling out all the stops and punishing a business owner. The idea behind SB 813 is to even things up a bit.”

See here and here for the background. This was always a ridiculous difference-without-a-distinction action by the TABC, and it’s good that they have admitted defeat. I support HB908, though I’d like to know more about SB813 before taking a side on it. The bottom line is that our beer laws and how we enforce them continue to be silly, though hopefully now slightly less silly. There’s a lot more room for a lot less silliness, if we want there to be.

State wants birth certificate lawsuit dropped

I don’t know about that.

Texas Attorney General Ken Paxton on Wednesday asked a federal district judge to dismiss a lawsuit that claims a state agency violated the U.S. Constitution by denying birth certificates to U.S.-citizen children of immigrant parents.

Attorneys with Paxton’s office said that the Texas Department of State Health Services, which is being sued by 17 families living in Cameron, Hidalgo and Starr counties, has sovereign immunity under the 11th Amendment and cannot be sued in federal court because it has not waived that right, according to court documents.

The immunity extends to interim DSHS Commissioner Kirk Cole and State Registrar Geraldine Harris, who are also named as defendants in the suit, Paxton’s office argues.

A spokesperson in Paxton’s office would not discuss the filing further, saying the “motion speaks for itself.” A spokesperson for the health agency was not available to comment.

See here and here for the background. This sounds specious, more like an ideological argument than a legal one, and a get-out-of-jail-free card if it’s upheld. But I’m not a lawyer, so what do I know?

[Lead plaintiffs’ attorney Jennifer] Harbury said Wednesday afternoon that her team would file a response after reading the state’s motion. The problem appears more widespread than just the families in the lawsuit, she said.

“What I know is there is a very large number of people who are afraid to come forward,” she said.

That would not surprise me. The Chron and the Observer have more.

More on the state’s refusal to issue birth certificates

The Observer follows up.

Two legislators have weighed in on the controversy over Texas’ refusal to grant birth certificates to some children of undocumented families. On Wednesday, Sen. Juan “Chuy” Hinojosa, D-McAllen, vice chair of the Senate Committee on Finance, sent a letter to Texas Department of State Health Services Commissioner Kirk Cole, referencing an Observer story published online Monday. He wrote that he was “alarmed” by the article as well as “a lawsuit that surfaced this week” over the agency’s refusal to issue birth certificates to people born in the United States.

At least 17 families have joined the lawsuit filed last month by Texas RioGrande Legal Aid attorney Jennifer Harbury and Texas Civil Rights Project attorney Jim Harrington.

In his letter to Cole, Hinojosa noted that 13 of the 17 plaintiffs are residents of Hidalgo County, in his Senate district. “By denying these birth certificates, DSHS is denying these children their U.S. citizenship. These children were born in the United States, are United States citizens, and are entitled to receive their own birth certificates.”

State Rep. Ramon Romero, Jr., D-Fort Worth, also sent a letter to Cole. “Any person born in Texas deserves all documentation and privileges concomitant with being both a United States and Texas citizen,” he wrote. “The U.S. Constitution speaks directly to the issue of birthright citizenship. It makes clear that birthright citizenship is a matter of constitutional right.”

Harbury says she’s grateful the legislators are weighing in on the matter. At the crux of the lawsuit is the state’s sudden decision not to honor the matricula consular, which is an official photo ID issued by Mexican consulates to Mexican nationals living in the U.S. In the past, Texas has deemed the matricula consular an acceptable form of ID.

In his letter to Cole, Hinojosa noted that the state’s “new policy” has never been “stated or even publicly proposed.”

See here for the background. What’s interesting is that while the Observer story from this week appears to be the catalyst for this issue getting wide attention, the lawsuit was filed in May. That happened as the Legislature was winding down and the state was getting walloped by floods, so perhaps it’s understandable that it went under the radar. Be that as it may, people are paying attention now. The DSHS claim that this has been their policy since 2008 seems awfully weak, and the evidence we have points to this being spurred on by the influx of Central American kids several months ago. Whatever the case, it’s clearly unconstitutional. The state is filing its response next week. I hope whoever the judge is will act quickly. Daily Kos, Hair Balls, and the Latin Post have more.

Burnam drops electoral challenge

A good decision, in my opinion.

Rep. Lon Burnam

After months of legal wrangling, state Rep. Lon Burnam announced Thursday that he will not continue with his challenge of his primary election loss.

Shortly after losing on March 4 by 111 votes to local businessman Ramon Romero Jr., Burnam, D-Fort Worth, sued, saying the election for state House District 90 was tainted by illegal mail-in ballots.

Now, after three courts — including the state’s top civil court — refused to order the release of the applications for those ballots, Burnam has asked his legal team to drop the case.

“I did not make this decision because I believe my opponent won fairly, or that our suspicions of illegal conduct in the election have not played out,” Burnam said in a statement.

“I made this decision because the Texas Supreme Court has denied our final appeal for a subpoena to see county vote-by-mail records, making it impossible to prove that more than 111 ballots were illegally cast.

“These records will become public after the general election in November and I plan to revisit the issue at that time.”

Romero said he’s glad Burnam is dropping the lawsuit.

“We ran a race fair and square,” he said. “We asked people to vote for us and they did.

“I’m excited to begin the work of the district.”

See here for the last update. Not the most magnanimous exit by Burnam, and I’m not sure what the point of revisiting the issue after the November election is, but whatever. I’d feel more sympathy for Burnam if he hadn’t come close to parroting Republican talking points on vote fraud during the litigation. Having said all that, Lon Burnam was a strong progressive voice in the Legislature and he served with honor. He’ll be missed, and Rep.-elect Romero will have some big shoes to fill. The Texas Election Law Blog, who thinks Burnam got a raw deal from the courts and who has some thoughts about using iPads for absentee ballot applications, has more.

Supreme Court denies Burnam mandamus request

Rep. Lon Burnam

Late Friday I got an email from the Ramon Romero campaign touting the news that the State Supreme Court had denied a write of mandamus to Rep. Lon Burnam in his electoral challenge lawsuit. You can see the Supreme Court’s order here – scroll down to case 14-0372, the third one listed under “Miscellaneous”. See here, here, and here for the background – basically, he’s alleging that the Romero campaign’s use of iPads to process absentee ballot requests violates Texas electoral law, which only references fax machines. Burnam had asked that county election officials release all the applications turned in for mail-in ballots in this race to investigate potential illegalities such as an “illegal computerized-signature vote-by-mail operation”, with the goal being to have any absentee ballot requested via a Romero iPad thrown out. He was denied by the trial court judge on the grounds that he was fishing for information, then by the 2nd Court of Appeals, and now by the Supreme Court. State District Judge Robert McFarling had agreed to delay the trial until after the appeals court had ruled, and now Burnam has come to a dead end. Accordint to this Star-Telegram story that reported the Supreme Court ruling and recapped the story so far, Rep.-elect Romero has filed a motion to dismiss the lawsuit, which will be heard on June 16. If Burnam survives that, I presume a trial date will be next, unless he decides to drop the matter. It’s hard to see how Burnam can prove his case at this point, but I suppose one tends to keep hope alive for as long as one can. Anyway, the next update will be on or around June 16, unless Burnam gives up before then.

Burnam loses appeal in election contest

Another setback.

Rep. Lon Burnam

A local appeals court will not require Tarrant County election officials to release all applications for mail-in ballots received for this year’s race for House District 90.

State Rep. Lon Burnam, D-Fort Worth, who has represented House District 90 for nearly two decades, asked to review the paperwork because he believed it would show illegalities in this race — and that he didn’t lose his re-election bid.

In March, Burnam lost by 111 votes to local businessman Ramon Romero Jr.

“This is the first step to the end of the line,” Romero said Monday. “Now I can tell people there won’t be a cloud over our victory party.

“I’ve been waiting for this to happen. This [lawsuit] is not what our voters deserve.”

Texas’ 2nd Court of Appeals in Fort Worth issued a brief ruling late Monday saying Burnam’s appeal was denied.

Art Brender, one of Burnam’s attorneys, said he plans to appeal to the Texas Supreme Court within days.

“It’s ironic at a time when we’re having debates over whether you have to have a picture ID to vote in person at a poll, … you’ve got increasingly very shadowy procedures now being sanctioned by voting by mail,” said Brender, former chairman of the Tarrant County Democratic Party. “We’re going to keep fighting it.”

See here, here, here, and here for the background. I have to say, I’ve been a fan of Lon Burnam, I was sad when he lost, and I agree that the law as written doesn’t specifically address the use of handheld electronic devices in processing absentee ballot requests. But that’s all that we’re talking about here, a possible technical violation of the law, which a court may or may not see as invalidating some number of those ballot requests. Allegations of impropriety and adopting Republican rhetoric about voter ID are misguided and harmful, and they threaten to tarnish Burnam’s legacy. I’m fine with pursuing the technical question of the law – it’s Burnam’s right to do so – but I don’t support this. Don’t lose your soul in pursuit of keeping your job, Lon.

Burnam challenge awaiting appeal

Another update on the ongoing legal challenge by State Rep. Lon Burnam, who wants his loss in the primary to Ramon Romero thrown out on the grounds that some applications for absentee ballots by Romero voters involved the use of iPads, which are not included as permissible devices in the relevant state law.

Rep. Lon Burnam

In a hearing earlier this month, attorneys representing Burnam asked that county election officials release all the applications turned in for mail-in ballots in this race to investigate potential illegalities such as an “illegal computerized-signature vote-by-mail operation.”

State District Judge Robert McFarling of Denton, the visiting judge appointed to the case, turned down the request. Burnam’s attorney, former Tarrant County Democratic Party Chairman Art Brender, has filed an appeal, asking the Fort Worth Court of Appeals to overturn that ruling.

McFarling on Monday agreed to delay the trial until the Court of Appeals rules. The case was scheduled to go to trial Tuesday.

Brender said he was glad for the delay.

“We are continuing our investigation every day,” he said. “And we are investigating other aspects of the election — and have been the whole time.”

Romero’s staff said they believe the final ruling will go their way.

“We are confident in the legal system,” said Michael “Mikey” Valdez, Romero’s campaign manager. “We feel the right decision will be made and it will confirm our victory.”

See here, here, and here for the background. I presume that’s the Fourth Circuit Court of Appeals and not the “Fort Worth Court of Appeals” since as far as I know there is no such thing. I don’t have anything to add to this story, but on a related note both Campos and Michael Li complained about an email Burnam sent out, presumably as an update on his case and as a fundraising appeal. Burnam is litigating a technicality, and technicalities don’t have much fundraising appeal. Trying to make it more than that risks alienating supporters and handing Republicans political ammunition. Burnam may win his challenge, but I’ll say again that I see nothing wrong in what Romero’s campaign did, nor do I see any reason why the law shouldn’t be amended to specifically allow it. Don’t lose sight of who you are in your quest to stay in office, Lon.

What the Burnam case is about

I’m still not sure what to think about Rep. Lon Burnam’s electoral challenge against Ramon Romero in HD90.

Rep. Lon Burnam

In a case that election officials statewide are monitoring — because it involves the use of electronic devices such as iPads — attorneys say enough ballots are in question to make a difference in the race Burnam lost by 111 votes to local businessman Ramon Romero Jr.

“We feel like there’s basically voter fraud and illegality that went on out there,” said Art Brender, a local lawyer and former Tarrant County Democratic Party chairman who is on the legal team representing Burnam. “We’ll know pretty soon.”

Romero, a businessman who owns A-Fast Coping Tile and Stone, said he believes this case will be resolved soon — in his favor.

“We didn’t have tablets. What he’s alleging has nothing to do with our campaign,” he said. “I don’t believe there was anything illegal that happened. It is sad that this is where we are. We should be moving forward.”

[…]

Burnam’s lawsuit alleges that some voters in the district were approached by campaign workers who asked them to fill out applications to vote by mail on an electronic device such as an iPad.

Burnam wants to review these applications, saying he believes “that these documents and other testimony will establish beyond question that the computerized-signature operation was illegal and that I won the election.”

His legal challenge claims that of the nearly 5,100 votes cast in this race, 951 were mail-in ballots — more than enough to decide the election.

But his request for copies of all applications for mail-in ballots was rejected Friday during a hearing before state District Judge Robert McFarling of Denton, who recently was appointed to oversee the case.

Ann Diamond with the Tarrant County district attorney’s office argued against releasing all the applications, saying they are not publicly available and they include private information (telephone numbers, addresses and more). About 30 of the forms have been released.

Brender maintains that the records are public information and what he has reviewed already shows that at least three people may have voted twice — once in early voting and once on election day. A review of all the applications could show even more problems and potentially invalidate enough ballots to flip the election results.

McFarling chose to not order the release of that information, saying even if there was a problem with the way a ballot was requested, the vote should still be counted.

And he said there was no proof that data requested would lead to “admissible evidence” in the case.

“You have to have a factual basis … before we start messing with the rights of individuals to vote,” he said. “I don’t think it’s sufficient to say … we think there might be something wrong … and we want to check it out.”

See here and here for the background. I have no opinion on this particular ruling, I’m more interested in the big picture.

A key issue in this case is the use of electronic devices to request mail-in ballots — and whether that’s legal in Texas.

Political observers say the state’s Election Code only addresses electronic signatures at polling places, such as when voters cast their ballot during early voting or on Election Day.

“The use of an iPad to fill out forms to request an absentee ballot would not appear to comply with the letter of state election law, but would appear to be in line with the spirit of the law,” said Mark P. Jones, a political science professor at Rice University in Houston.

“The law simply has not been updated to take account of the rising use of iPads and other mobile devices, leaving a vacuum in the state’s election law.”

Stephen Vickers, chief deputy elections administrator in Tarrant County, said he couldn’t comment on the case because of the pending litigation.

The ultimate ruling in this case may well determine how election officials statewide process mail-in ballots for at least the rest of the year.

“This case also should hopefully spur the Texas Legislature to modify the state’s election law during the 2015 legislative session to allow for the use of electronic devices to complete mail-in ballot request forms,” Jones said. “Perhaps that reform will be the first bill that Rep. Romero files.”

[…]

Officials with both major political parties say they are watching this case.

“We trust the courts will take the issue seriously … [and] determine the best manner in which to proceed,” said Manny Garcia, communications director for the Texas Democratic Party.

Said Republican Party of Texas Chairman Steve Munisteri: “We are interested observers to see what the court rules to see if we are following the law correctly.”

There’s been some trolling about voter ID on this, but of course the voter ID law is only about in person ballots, and this challenge is all about absentee ballots. Technically, it’s not about the ballots themselves, but about the process to request an absentee ballot, and whether an iPad or similar device is allowable under the law as written. By the letter of the law I’d say not, but by the spirit – the law does allow for “telephone facsimile machines” – it’s clearly a Yes. I have no idea how the courts – or the Legislature, if this eventually winds up as an election contest to be adjudicated by the Lege – will rule, but I definitely agree (and have already said) that the law should be updated to allow this usage. There’s no good reason for it not to be allowed. There is good reason to be concerned about the peripheral effects of this case:

Romero said he wasn’t surprised by the lawsuit. But he believes this isn’t something “as Democrats that we should be insinuating.”

“Lots of people came out and were excited about being part of the primary. Now they don’t understand what’s going on,” he said. “They hear words of illegality and that scares people and makes them stay away.

“He should be welcoming me in Austin, helping with the transition. Instead, he’s doing this,” Romero said. “But he has a right to do this and we’re not mad at him. We’ll be down in Austin come January.”

I agree with Romero on this, and if his magnanimity is any indication, he’ll make a fine State Rep if he prevails in this case. Whatever the outcome, let’s make sure we update that law.

Burnam election challenge update

Moving along, but no timeline as yet.

Rep. Lon Burnam

A state district judge from Denton County will oversee a case involving long-time state Rep. Lon Burnam‘s accusations that votes were cast illegally in the Democratic Party primary last month.

State District Judge Robert McFarling was appointed Friday by state District Judge David Evans, the administrative judge for the Eighth Judicial Region. McFarling will replace state District Judge R.H. Wallace.

The Texas Election Code dictates that a judge from outside the county hear a case involving an election challenge.

[…]

Burnam has also filed motions to subpoena former Elections Administrator Steve Raborn and interim Elections Administrator Stephen Vickers.

Raborn announced his resignation in December and will become president of Votec, a company based in San Diego, Calif., that focuses on voter registration and election management software.

Raborn’s motion stated that the elections administrator is neutral, but is required to protect records from unauthorized release and that the elections office is compiling records that can be released publicly.

“Because the documents sought involve the privacy rights of hundreds of people, they cannot be released to the litigants merely to satisfy their curiosity if there is no reason to believe votes were cast by persons who were not entitled to vote, or to believe that persons who were entitled to vote were denied the right to vote,” the motion stated.

His motion went on to say that no mail ballots from District 90 were denied, and that the question is whether there may be persons who voted who may not be entitled to vote.

See here for the background. As I said before, the question Burnam is raising is pretty straightforward – does the elections code as it exists allow for mobile computers to process vote by mail applications? – though obviously open to interpretation. I’ll be surprised if this one doesn’t wind up before the Supreme Court eventually, however it gets decided initially. Again, I think the law should allow what Ramon Romero’s campaign team did, and I think someone should write a bill to clarify the laws in question regardless of how this case is decided. It would be fitting if whoever wins this lawsuit is the one that files the bill.

Burnam files challenge in HD90

This ought to be interesting.

Rep. Lon Burnam

State Rep. Lon Burnam filed a lawsuit Monday challenging his 111-vote re-election loss earlier this month.

Burnam, D-Fort Worth, said the goal of the lawsuit is to review data from the Texas House District 90 election “to determine if there were hundreds of illegally cast ballots.”

“I believe I have no choice after receiving multiple reports of an illegal computerized-signature vote-by-mail operation run to benefit my opponent,” Burnam said in a statement. “This operation appears to have clearly violated state law.”

Local businessman Ramon Romero Jr. won the race for this House seat, besting Burnam — dean of the Tarrant County delegation — earlier this month, local election records show.

[…]

In a lawsuit styled Lon Burnam v. Ramon Romero, Burnam noted that nearly 1,000 of the 5,078 votes cast in this race were absentee mail-in ballots — which could have been a deciding factor.

On Election Night, the race for this seat was close, sometimes only separated by a handful of votes. When the final count was released, Romero pulled ahead by 111 votes to claim victory.

“I have received reports from voters in the district who say they were approached at their door by campaign workers of unclear affiliation who asked them to fill out a vote-by-mail application on an electronic tablet device such as an iPad,” Burnam said in his statement.

“Texas law clearly does not allow the practice of filling out vote-by-mail ballot applications electronically, which the Texas Secretary of State’s has confirmed. Other questionable practices about this operation aside, this renders the entire operation illegal.”

Quorum Report was first with the story, and they have a copy of Burnam’s lawsuit, which was filed in district court in Tarrant County. Here’s the relevant bit from the lawsuit:

6. The Contestee (Romero) canvassed neighborhoods seeking persons to apply to vote by mail. His representatives used an iPad with an application on it that that was an application for a ballot by mail. The canvassers would simply ask the voter to sign the iPad. These signatures would be downloaded as a printed application and sent to the election officials so that a ballot could be mailed to the voter. Such assistance provided to a voter requires the signature of the assistant on the application for ballot by mail. Texas Election Code, S 84.003.

7. On information and belief there are in excess of 180 such applications obtained in this manner. This exceeds the margin of votes between Contestant and Contestee.

CAUSE OF ACTION

8. Obtaining ballots by using this device invalidates the votes. The only time that the code allows electronic signatures is at the polling place. See Section 63.002′ Electronic devices used in the voting process must be approved by the Secretary of State, which in this case, has not been done. The Secretary of State says that the only authority for using electronic signatures is code Section 63.002 which limits such signatures to use at the polling place. There is no other authority for using electronic signatures in an uncontrolled environment as was done here. See the attached communication from the Secretary of. State on this issue which is attached hereto as Exhibit ” A” and incorporated by reference herein in this petition.

The attached email correspondence is pretty clear. On the one hand, if Burnam is correct in his interpretation, which basically comes down to claiming that an iPad is not a “telephonic facsimile machine” and that an electronic signature is not acceptable in this scenario, then depending on how many votes really were affected it could swing the race. On the other hand, if this is the way Texas law currently is then it ought to be updated. There may be a good policy rationale for not allowing handheld devices to handle these applications, but I can’t see it off the top of my head. Barring the revelation of any such rationale, I’d support changing the law to allow what Romero’s team did – honestly, it strikes me as a good way to increase turnout. But if this is how the law is, then however sensible this use of technology may have been it would not be legal. Burnam is represented by Buck Wood and Art Brender, former Chair of the Tarrant County Democratic Party, so I presume they know what they’re doing. I’ll be very interested to see Romero’s response. No idea as yet what the timetable is for this. If any lawyers want to weigh in on this, as always please do. Thanks to Texas Redistricting for the heads up, and BOR has more.

Ramon Romero

The Fort Worth Business Press profiles Rep.-elect Ramon Romero and his winning race against longtime incumbent Rep. Lon Burnam in HD90.

Rep. Ramon Romero

Ramon Romero Jr. describes himself as “that poor boy from Poly,” one of eight children of immigrant parents who grew up in working-class southeast Fort Worth, started his first business when he was 20 and ultimately became an up-by-the-bootstraps success story.

Now, at 40, Romero is poised to become the first Latino state representative from Tarrant County after carving out an 111-vote Democratic primary victory over the dean of Tarrant County’s legislative delegation, Rep. Lon Burnam, a 17-year House member who is known as one of the chamber’s liberal firebrands.

The victory was widely seen as a triumph for Texas Hispanics, who have propelled much of the state’s population growth over the past 15 years, as well as perhaps an inevitable transition in House District 90, an inner-city Fort Worth district where Latinos constitute nearly 76 percent of the population and almost 72 percent of the registered voters.

Burnam took office in 1997, succeeding legendary State Rep. Doyle Willis, who served in both the House and the Senate for a total 42 years to become the second longest serving member in the Legislature.

During his time in the House, Burnam developed a reputation for passionately defending the interests of his district but acknowledges that as an Anglo lawmaker, he was becoming increasingly vulnerable to the rapid-fire expansion of the Hispanic electorate.

Burnam survived his first serious challenge in 2012 against school board trustee Carlos Vasquez. But he was unable to withstand the assault from Romero, a well-known member of the community who was fresh from a runoff bid for the Fort Worth City Council in 2012 and had the backing of prominent Tarrant County Hispanic leaders, including Councilman Sal Espino and Justice of the Peace Sergio De Leon.

Romero’s biggest financial backer was wealthy Dallas lawyer Domingo Garcia, who ran unsuccessfully for the 33rd District congressional seat in 2012 and has been a vocal advocate for expanding Hispanic representation in Congress and the Legislature. He donated a total of $35,000 to Romero.

[…]

Romero grew up in the Polytechnic neighborhood, graduating from Polytechnic High School in 1992. He was barely in his 20s when he started a swimming pool construction company and later developed a stone distribution venture. Although he vaulted upward on the economic ladder, Romero says he has never wanted to leave the neighborhood where he grew up and looks forward to serving those he grew up with.

“People in District 90 related more to Ramon Romero than they did to Lon Burnam,” he said. He acknowledged that Burnam “worked for the district and definitely fought for the district” but said the lawmaker didn’t face and understand some the same challenges as those “who face them on a daily basis.”

Romero said he began eyeing a run for Burnam’s seat “almost immediately” after his unsuccessful council bid against Kelly Allen Gray, who wonthe District 8 council seat. He said he consulted Espino, who helped him analyze his chances of mounting a successful campaign.

A major element in his strategy was to develop a tri-ethnic coalition composed of whites, blacks and Hispanics, Romero said, dismissing post-election talk that the campaign was designed solely to propel an Hispanic into office.

“I could not have won this by the Hispanic vote alone,” he said. “It’s time we get past that conversation. It’s about the person that related to the community.”

Although Garcia’s financial support raised claims of outside influence and prompted talk that the Dallas attorney was trying to build a base for a future congressional run, Romero said Garcia took no role in the campaign other than to offer encouragement and to “support me financially when I needed it.”

“Domingo really had no role,” Romero said. “He didn’t come out to campaign. He simply gave me support.”

Burnam largely attributed his loss to the “demographic shift” in the district, saying “people mainly tend to vote based on their own personal identity.” He said he recognized the “obvious trend” and was even prepared to ultimately to support an Hispanic “replacement” to take over the seat.

“I would have been perfectly happy to stand aside in 2014 had we found what I consider the person who is truly representative of the value system of the district,” he said. “I don’t think Mr. Romero is.”

During the campaign, Burnam depicted Romero as a Republican-friendly “fake Democrat.” Romero flatly dismissed the assertion and said he has never voted Republican.”

First, let me again congratulate Rep.-elect Romero on his victory. I join many others in saying I’ll miss Rep. Burnam, but Romero earned his win and I wish him nothing but success. It’s fair to say, as one commenter on his Facebook page noted, that he has “giant shoes to fill” and “will be watched like a hawk by many skeptics”. One hopes the latter is true of all elected officials. I didn’t follow this race but I look forward to seeing what Rep.-elect Romero brings to the Legislature.

Primary results: Legislature and Congress

Rep. Lon Burnam

The big news on the Democratic side is the close loss by longtime Rep. Lon Burnam in HD90, who fell by 111 votes to Ramon Romero Jr. I know basically nothing about Rep.-elect Romero, but I do know that Rep. Burnam has been a progressive stalwart, and it is sad to see him go. His district is heavily Latino, and he defeated a Latino challenger in 2012, but fell short this year. Congratulations to Rep.-elect Romero. Also in Tarrant County, Annie’s List-backed Libby Willis will carry the Democratic banner in SD10 to try to hold the seat being vacated by Wendy Davis. Elsewhere in Democratic legislative primaries, Rep. Naomi Gonzalez, who earned a Ten Worst spot this past session for a DUI bust during the session, was running third for her seat. Cesar Blanco, a former staffer for Rep. Pete Gallego, was leading with over 40% and will face either Gonzalez or Norma Chavez, whom Gonzalez had defeated in a previous and very nasty primary. I’m rooting for Blanco in either matchup. All other Dem incumbents won, including Rep. Mary Gonzalez in HD75. Congressional incumbents Eddie Berniece Johnson and Marc Veasey cruised to re-election, while challengers Donald Brown (CD14), Frank Briscoe (CD22), and Marco Montoya (CD25) all won their nominations.

On the Republican side, the endorsements of Rafael Cruz and Sarah Palin were not enough for Katrina Pierson in CD32, as Rep. Pete Sessions waltzed to a 68% win. Rep. Ralph Hall, who was born sometime during the Cretaceous Era, will be in a runoff against John Ratcliffe in CD04. All other GOP Congressional incumbents won, and there will be runoffs in CDs 23 and 36, the latter being between Brian Babin and Ben Streusand. I pity the fool that has to follow Steve Stockman’s act.

Some trouble in the Senate, as Sen. Bob Deuell appears headed for a runoff, and Sen. John Carona appears to have lost. Sen. Donna Campbell defeats two challengers. Those latter results ensure the Senate will be even dumber next session than it was last session. Konni Burton and Marc Shelton, whom Wendy Davis defeated in 2012, are in a runoff for SD10.

Multiple Republican State Reps went down to defeat – George Lavender (HD01), Lance Gooden (HD04), Ralph Sheffield (HD55), Diane Patrick (HD94), Linda Harper-Brown (HD105), and Bennett Ratliff (HD115). As I said last night, overall a fairly tough night for Texas Parent PAC. Rep. Stefani Carter (HD102), who briefly abandoned her seat for an ill-fated run for Railroad Commissioner, trailed Linda Koop heading into a runoff.

I’ll have more thoughts on some of these races later. I’d say the “establishment” Republican effort to push back on the Empower Texas/teabagger contingent is at best a work in progress. May open an opportunity or two for Dems – I’d say HD115 is now on their list in a way that it wouldn’t have been against Rep. Ratliff – but barring anything strange we should expect more of the same from the Lege in 2015.