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SD22

Early voting is up in the special election runoffs

Make of that what you will.

Rep. Trey Martinez-Fischer

Rep. Trey Martinez-Fischer

If three days of early voting are any indication, the tense runoff fight for the state Senate 26 seat between Trey Martinez-Fischer and José Menéndez is attracting more voters than cast ballots in the first round election on Jan. 6, the result of record spending in the campaign that has pitted two Bexar County Democratic members of the House against one another in the fight to succeed departing Sen. Leticia Van de Putte, who is running for mayor.

The Jan. 6 state Senate ballot included two Republicans, Alma Perez Jackson and Joan Pedrotti, and a third Democrat, Al Suarez. Voter turnout was a miserable 5%. The five candidates in the first round drew only 19,158 voters, including 8,215 early voters. Martinez-Fischer finished well ahead of Menéndez and the others with 8,231 votes, or 43.28%. Menéndez finished a distant second with 4,824 votes, or 25.37%.

Special elections seldom draw many voters, and in most cases, a runoff would draw even fewer voters with one party knocked off the ballot. This time it’s different. A total of 6,977 people voted in the first three days of early voting this week, which continues today and Friday. At the current pace, that would add up to more than 11,000 early votes, or a 35% increase in the early turnout. If the same increased turnout occurs on Election Day the race will draw more than 25,000 voters, still a low percentage of registered voters, but enough of an increase to suggest a tight race.

You know I can’t turn down an opportunity like that to do some number-crunching. I looked at all the special legislative elections that included runoffs since 2010. Here are their respective vote totals:

Election Total Runoff Pct ===================================== SD22 5/10 29,851 24,557 82.3 HD14 11/11 13,519 6,736 49.8 SD06 1/13 16,369 18,141 110.8 HD50 11/13 14,936 10,520 70.4 SD04 5/14 30,348 22,605 74.5

“Pct” is the ratio of runoff turnout to total Round One turnout. Note that two of these special elections coincided with regular November elections, so it’s not terribly surprising that those runoffs lagged the most. Note also that the special election in SD06 in 2013 to succeed the late Mario Gallegos had higher turnout in the runoff than it did in the first round. That’s also the only race among these that was between two prominent Democrats, and as is the case this year it featured a nasty, negative overtime period. Not enough data to draw a firm conclusion, but the parallels are easy enough to see.

Having said all that, I kind of buried the lede a bit.

The increased turnout appears to be driven by negative campaigning and the role of outside money that aims to rally Republicans to cross party lines and vote for Menéndez. What’s different about this race is the role the powerful Texans for Lawsuit Reform (TLR), an ultra-conservative lobby, is playing, contributing more than $550,000 to finance broadcast ads and direct mail pieces attacking Martinez Fischer and supporting Menéndez. The Express-News reported Tuesday that more than $2.3 million has been spent on the race, including the TLR money that actually exceeds the $513,000 that Menéndez has spent to date.

[…]

Martinez-Fischer is a plaintiff’s lawyer and a vocal, at times coarsely spoken Mexican-American. He looks and sounds like a boxer. Menéndez, also a lawyer, is softer spoken and less combative. People who watch Austin politics more closely than I say newly elected Lt. Gov. Dan Patrick would prefer to keep Martinez-Fischer out of the Senate, which is now a bastion of ultra-conservative Republicans, who now outnumber Democrats 20-11. Regardless of the runoff outcome, the winner will be the least senior of the minority party, but Martinez-Fischer would be a thorn in Patrick’s side, while Menéndez has said he would cross party lines to try to be effective.

I’ve said all along that TMF was my preferred candidate in this race. I had and continue to have nothing against Menendez, and I seriously doubt he’d be any more supportive of the evil trolls that make up TLR if he wins than he was in the House. But maybe he’ll be a little more supportive of them than TMF would be, and a couple hundred thousand bucks isn’t even pocket change to these guys, so all in they go. (They were a presence in the SD06 race as well, much as head lice is a presence in most elementary schools.) The point I’m making here is that even though this runoff is to them a choice between two candidates with whom they have little in common, they didn’t sit it out. They picked their lesser evil and did what they do to support him, in the hope that if it pays off, they’ll have an ever-so-slightly better Senate from their perspective. Say what you want about these guys – and believe me, I think they’re a greedy, rapacious, destructive force, too – it’s hard to argue that their approach had been anything but a big success. There may be a lesson in there for us somewhere, I dunno.

Anyway. It’s hard to know what effect this may have on the HD123 runoff, as HD123 is almost entirely within SD26. Like SD26, most Dems won HD123 by about ten points in 2010, the main exceptions being Bill White, who won it by more than 20 points, and Barbara Radnofsky, who lost it by a half point to Greg Abbott. I expect Diego Bernal to win easily enough, but one should never take anything for granted. Get out there and vote if you didn’t already do so. As for HDs 13 and 17, other than this report on campaign finances in HD17, there’s precious little news out there. I’ll have final results when they come in.

Chron overview of SD06

The day before early voting begins in the SD06 special election (which is today), the Chron previews the race. It has a lot of stuff we already know, and it mostly focuses on the two frontrunners, Sylvia Garcia and Rep. Carol Alvarado, so I’m not going to recapitulate that. There are a couple of interesting tidbits that I want to mention.

With eight candidates in the race in an overwhelmingly Democratic district that includes Houston’s East End, the race is likely to come down to a battle between two prominent Democrats, state Rep. Carol Alvarado, whose House district overlaps much of the Senate district, and former Harris County Commissioner Sylvia Garcia.

Also running are R.W. Bray, the Republican candidate who lost to Gallegos last fall; Democrats Susan Delgado, Joaquin Martinez and Rodolfo “Rudy” Reyes; Republican Dorothy Olmos; and Green Party candidate Maria Selva.

If a runoff is needed – and with so many candidates, one is likely – it will be held between Feb. 23 and March 9, with Gov. Rick Perry scheduling the exact date.

[…]

Among the state’s 31 senate districts, this predominantly Hispanic district ranks last in the number of registered voters (284,000) and in 2012 voter turnout (138,000). [Rice poli sci prof Mark] Jones estimates that fewer than 1 in 10 registered voters and 1 in 25 district residents will cast a ballot.

While there have been a number of legislative special elections in recent years, there hasn’t been one like this, in a strongly Democratic district with two clear leaders and at least one Republican who will likely do better than the default background candidate rate. The closest match is the 2005 special election in HD143 in which Rep. Ana Hernandez was elected to succeed the late Rep. Joe Moreno. It’s not an exact match because there were no declared Republicans in the race, though one of the minor candidates was the same Dorothy Olmos who is running in this race (and has run in many others since 2005) as a Republican. Hernandez and runnerup Laura Salinas combined for 68.4% in that race, with four other candidates splitting the remaining 31.6%. PDiddie does some crunching to suggest a vote total that would win this race in the first round. I look at it this way: Assume Bray gets 15%, and the other five combine to take 10%. For either Garcia or Alvarado to win it on January 26, one would have to beat the other by at least 25 points, i.e., by at least a 50-25 margin, since 25% of the vote is already accounted for. Do you think that’s even remotely possible? I sure don’t. And if the non-Sylvia and Carol candidates combine for more of the vote, a first-round winner would need an even wider margin. Ain’t gonna happen.

As for the vote total that Jones predicts, here’s a look at the four most recent Senate special elections:

Dist Date Num Votes Top 2 ================================ 22 May 2010 4 29,851 81.47 17 Dec 2008 2 43,673 84.52 31 Jan 2004 7 69,415 66.27 01 Jan 2004 6 69,206 75.50

“Num” is the number of candidates, and “Top 2” is the combined percentage of the top two candidates. There was a runoff in each case, and I’m cheating a little with the SD17 special election – the vote total (“Votes”) is from the runoff, since the special election itself (which had 6 candidates) was on the date of the 2008 general election, and thus had the kind of turnout (223,295) one would expect for a regular Senate election. I don’t know how much you can extrapolate from all this, but you write your blog post with the data you have, not the data you wish you had. For what it’s worth, from chatting with the campaigns I’d say they’re expecting a slightly higher vote total than Jones is projecting. We’ll see.

One more thing:

If a runoff is needed – and with so many candidates, one is likely – it will be held between Feb. 23 and March 9, with Gov. Rick Perry scheduling the exact date.

[…]

Meanwhile, the district’s approximately 813,000 residents will be without representation in the state Senate until the latter half of March, when the newly elected senator will be sworn in.

I would think that if the runoff is no later than March 9 that the newly-elected Senator would be sworn in sooner than “the latter half of March”. I know there’s a canvass period for election results that can take a week or more before the result is certified, but does that hold everything up until it’s done? It’s not usually a consideration because we have elections in November and swearings-in in January, but obviously here it does matter. The statutes on elections to fill a legislative vacancy were not clear to me on this, and the last time we had a vacancy during a session (2005, when Rep. Moreno died in an auto accident), the ensuing special election was not called until November. Anyone have a good answer for this?

Cut education now, pay later?

That’s the question for Republican legislators, isn’t it?

GOP legislators didn’t budge this session from their commitment to reduce Texas’ education spending even in the face of protests, negative ad campaigns and reams of criticism.

The outcry didn’t faze them because it wasn’t coming from within their party.

That might change, some Republicans say, once parents see the aftermath in their child’s school of the state’s $4 billion — or 5.6 percent — reduction in what is owed to local school districts. The fallout could include teacher layoffs, school closures and elimination of extra programs or higher property taxes.

Republican incumbents “are going to be sent home by Republican primary voters because what they’re doing in public education is not in any way conservative,” said State Board of Education member Thomas Ratliff, R-Mount Pleasant. “Our version of conservative is mainstream conservative, not extreme conservative.”

Of course, there’s more to it than just the Republican primary, which is what this story focuses on. Republicans voted as a unified bloc all session, so legislators in swing districts will be running on the same record as legislators in safe R seats. There will be a lot more voters who don’t vote in Republican primaries to persuade that this was the wrong thing to do. If it really is the case that education is seen as the most important issue, then that will help. Right now it’s anybody’s guess, and there are too many factors that can influence things to have any clear idea about what will happen. It’s just too early to say.

I will say this much: The Tea Party influence on Republican legislative primaries may be a tad bit overstated. A grand total of three Republican incumbents fell to primary challenges. Two of them – Tommy Merritt and Delwyn Jones – were longtime targets of the more radical elements. The third – well, let me ask: Can you name the third Republican incumbent to lose in a 2010 primary? Off the top of your head, without using the Internet? I’ll tell you that I had either never realized this particular legislator had lost, or I’d forgotten it because the winner of that race has been completely invisible (to me, anyway). I’ll put the answer beneath the fold. Other targeted legislators like Charlie Geren and Todd Smith survived. Some of the noisier teabaggers, like James White, Jason Isaac, and Jose Aliseda, were unopposed in their primaries. The teabaggers did do well in primaries for open seats, and Bill Birdwell’s victory in the SD22 special election against the establishment candidate David Sibley was a big deal, but the overall record isn’t deep. While it’s clear that the threat of getting teabagged worked wonders for party unity this year, what will happen in 2012 if the interests of the Republicans’ monied interests diverge from the teabaggers is unknown. EoW has more.

(more…)

Senate map is out, controversy precedes it

Before we had a State Senate map, we had a brawl brewing over one proposed district on it.

Accusing the state Senate’s Republican leaders of a “shameful partisan attack,” Sen. Wendy Davis said Tuesday that a new redistricting map for her Tarrant County senatorial district violates the federal Voting Rights Act by ripping apart a powerful minority coalition that was crucial to her election over a Republican incumbent in 2008.

After reviewing the map for the first time Tuesday, the Fort Worth Democrat fired off an angry letter to the head of the Senate Select Committee on Redistricting and said she plans legal action to challenge the plan, which revamps her 10th senatorial district.

“I’m very sure we will be in a court battle,” Davis told the Star-Telegram.

Sen. Kel Seliger, R-Amarillo, chairman of the redistricting committee, is expected to release the proposed map for the state’s 31 Senate districts today. The committee plans a hearing Thursday to take public testimony.

Davis said she was not given an opportunity to provide input for the plan or review preliminary maps, despite repeated requests. She vowed to fight the proposal “with every resource I can muster.”

“I will not allow the voting rights of hundreds of thousands of constituents in Tarrant County to be trampled to satisfy the partisan greed of the Senate leadership,” Davis said.

[…]

Davis said Seliger’s plan would shift African-American voters in southeast Fort Worth, Everman and Forest Hill into redrawn District 22, represented by Sen. Brian Birdwell, R-Granbury. Hispanic neighborhoods in north Fort Worth would become part of District 12, represented by Sen. Jane Nelson, R-Flower Mound.

Putting aside the minority voting strength issue, it’s hard to see how folks in an urban area like that can be served by a Senator from another county in a district that’s mostly rural. What communities of interest do Granbury and Flower Mound share with Fort Worth? Regardless, minority voting strength will certainly be the focus of any legal action that may be taken against the upcoming map. A press release from Sen. Davis that talks about the cracking of these communities is here, a letter from Davis to Sen. Seliger over the latter not meeting with her before the map was created is here, and a letter from four current Fort Worth City Council members to the Justice Department is here.

In the meantime, the Seliger Senate map has now been released into the wild. I know what you want, so here it comes. First, some pictures. Here’s the Metroplex, source of Sen. Davis’ consternation:

Metroplex Senate districts

SD22, Sen. Birdwell’s district, stretches all the way down to Falls County, south of McClennan. It’s closer to Austin than Fort Worth at that end. Speaking of Austin:

Travis County Senate districts

Sens. Troy Fraser and Judith Zaffirini each wind up with a piece of the Capitol county. Neither Zaffirini nor Sen. Kirk Watson are particularly happy about it. I think if the GOP could draw a map that put a piece of Travis County into every single district, they would. Finally, here’s Harris:

Harris County Senate districts

Sen. Joan Huffman’s SD17 goes south but loses the tail that had snaked east across the coast through Galveston into Jefferson County. Sen. Mike Jackson gets all of Galveston, while Sen. Tommy Williams gets all of Chambers and Jefferson. And I am once again moved into a new district, as nearly all of my part of the Heights gets separated from Sen. Mario Gallegos’ SD06 in favor of Sen. John Whitmire’s SD15.

As for electoral data, see here for 2010 and here for 2008. As the map is drawn, it’s hard to see how Sen. Davis can hold on in a district that topped out at 43.50% for Sam Houston (43.12% for Obama), though I suppose it’s not totally out of the question. Interestingly, the Democrats could have some other opportunities over the long term:

Dist Incumbent Molina Houston old Houston new =================================================== 09 Harris 39.4 47.6 43.4 10 Davis 42.3 47.4 43.5 16 Carona 41.0 46.9 43.4 17 Huffman 43.6 47.6 40.8 19 Uresti 55.1 57.0 57.2 20 Hinojosa 55.7 59.7 59.7

I threw in Sens. Carlos Uresti and Chuy Hinojosa as points of comparison, as they were the least Democratic non-Davis districts, with Obama numbers around 55%. Sam Houston wasn’t the high scorer in their districts, either – Linda Yanez got 60.5% in SD20, and both Yanez (59.0) and Susan Strawn (58.4) did better in SD19. I’m not too worried about either of these guys. I wish I had Molina numbers from 2004 for the new districts to compare, but I don’t. I still suspect these districts are bluer now than they would have been then, and will be more so in 2012, but I can’t quantify that. I also suspect there’s only so much that can be done to protect Sens. Carona and Harris, though it may be enough to get them through most if not all of the decade. As with the SBOE, the draw to determine whether they run again in 2014 or 2016 could make a difference. I am sure that there will be alternate maps filed, starting with one from Sen. Davis, so we’ll see how it goes from here.

UPDATE: Something I had not noticed before: Sen. Zaffirini, whose district stretches from Laredo to Austin, would no longer have a piece of Bexar County.

Under the proposed changes, the number of senators representing San Antonio would slip from four to three because state Sen. Judith Zaffirini, D-Laredo, would have a district that completely avoids Bexar County.

Zaffirini was upset she wouldn’t represent San Antonio if the proposal were to pass. It has her district running all the way from Laredo to East Austin’s historically black neighborhoods.

“I’ve worked hard for Bexar County,” she said. “I especially carry their higher education agenda passionately; I’ve made a difference for Bexar County over the years.”

There’s a good side-by-side comparison at the story.

UPDATE: Greg has more.

Birdwell will be on the ballot

So says the Fifth Court of Appeals.

A three-judge panel from that court ruled against the Democrats and said it won’t consider rehearing the case because of pending election deadlines:

We conclude relators have not shown they are entitled to the relief requested. Accordingly,we deny relators’ petition for writ of mandamus. See TEx. R. APP. P. 52.8(a). By separate order, we deny Birdwell’s and Munisteri’s joint emergency motion to dismiss.Because of the apparent limited time remaining as to certain deadlines identified by the relators with regard to the general election, see TEX. ELEC. CODE ANN. § 145.064.065, no motion for rehearing will be entertained.

The full ruling is attached.

I’ve read the ruling, and though I Am Not A Lawyer, I think I get the gist of it: Basically, the court said there were steps that should have been taken by the plaintiffs prior to this that weren’t; that the documents they submitted were not “sworn or certified”, which therefore lent them less credibility; and that there was at least one dispute of fact relating to the documents, which is a job for a district court to sort out, not an appeals court. I can’t say I have a beef with any of that, so there you have it. Let’s file this under “Reasons Why Some Of Us Have Been Advocating A Run Everywhere Strategy” and move on.

A more interesting question is the one Abby Rapoport raises, which is whether residency requirements should matter at all. To be perfectly honest, we probably ought to give some consideration to rethinking such things. Everybody knows that the requirements we have now for all kinds of offices are regularly flouted and skirted. People buy second houses, rent apartments that they never really live in, claim the domicile of a parent or sibling or even an estranged spouse as their “official” residence, and more, in order to comply with existing statutes. Off the top of my head, I can’t think of anyone who has truly run afoul of these laws in recent years, despite the often ludicrous and usually well-known efforts to appear to be obeying them. (It’s occasionally a successful campaign issue, as it was against Rick Santorum in 2006 in Pennsylvania, but he likely would have lost anyway, and I’m really referring to candidates being booted because of it.) Asking “What’s the point?” is not at all unreasonable. One could make a similar argument against residency requirements that is often made against term limits, namely that if The People want a particular person to represent them in a particular office, they should have the right to vote for that person. For a variety of reasons I expect nothing to change, but there were to be such an effort, I’d support it.

UPDATE: The Trib, which agrees with my reading of the decision, has more.

Is that really the argument you want to make?

SD22 special election winner and GOP nominee for November Bill Birdwell filed his response to the lawsuit that challenged his residency on Friday, and, well, color me puzzled.

“It has been Texas law for over 40 years that a person’s voter registration and voting history is conclusive as to that person’s residence,” the Democrats argued in their petition.

In Birdwell’s response, his attorneys at Beirne, Maynard & Parsons in Houston argued the Virginia documents instead show that the senator “lived and voted in Virginia from 2004 to 2006, and obtained a Virginia fishing license, before returning home to Texas.”

Um, how does that refute the charge that he was a resident of Virginia in 2006? Maybe I’m missing something, but if it was always his intent to return, why wouldn’t he maintain his registration in Texas and simply vote absentee? Lots of people do exactly that. When I started college, I kept my New York voter registration, and voted by mail. I didn’t know anything about San Antonio politics or elections, so it never occurred to me to vote there. It wasn’t until after I’d graduated and moved to Houston that I registered here. I don’t get this argument at all. What am I not seeing?

In theory, we should have a ruling early this week. We’ll see what the Court does with it.

Birdwell ballot challenge timeline

As you know, the Texas Democratic Party and its candidate for SD22, John Cullar, have filed a lawsuit challenging the residency of Republican candidate Bill Birdwell. Here’s the latest news regarding that:

The Dallas Court of Appeals has asked Sen. Brian Birdwell and Republican Party chairman Steve Munisteri to send in their replies to a Democratic challenge of Birdwell’s eligibility by 5 p.m. Thursday, according to an order issued by the court late Monday.

The order gives the Texas Democratic Party and Democratic senate hopeful John Cullar until 5 p.m. Friday to file a reply.

The lawsuit asking Birdwell to be declared ineligible was filed jointly by the Democratic Party and Cullar on Friday of last week in Fort Worth’s 2nd Court of Appeals. It was transferred to the Dallas court late the same day after the Fort Worth justices declared themselves “unavailable.” Under state law in such circumstances a case gets moved to the nearest appeals court, which in this instance was Dallas.

The petition asks for an expedited ruling, citing an Aug. 20 deadline to get Birdwell removed from the ballot assuming he’s determined to be ineligible.

I fully expect that expedited ruling to be made in time. After that, we’ll see if anyone appeals. On a related note, the Trib has a story about other recent residency challenges.

Candidate named, suit filed in SD22

My questions have been answered.

Democratic officials in Senate District 22 got together in a Hillsboro restaurant Thursday evening and nominated John Cullar to run for the state Senate seat now held by Brian Birdwell, R-Granbury. Cullar is a Waco attorney, former McLennan County Democratic chairman (until earlier this year) and a former member of the State Democratic Executive Committee.

And that was followed by an announcement that Cullar would file suit over Birdwell’s eligibility to run for the Senate. Here’s the TDP press release:

[Friday], Democratic SD 22 nominee John Cullar and the Texas Democratic Party filed a Petition for Writ of Mandamus in the Fort Worth Court of Appeals in to determine Republican SD 22 candidate Brian Birdwell’s eligibility to appear on the ballot. Cullar was nominated by the SD 22 Democratic County Executive Committee. Birdwell’s eligibility has been called into question over his record of voting in Virginia from 2004-2006.

“I’m going to run a comprehensive campaign, and part of that is analyzing if my opponent is eligible to represent the people of SD 22,” said SD 22 Democratic nominee John Cullar. “I look forward to seeing that question resolved by the court. In the meantime, I’ll be out talking with the voters of the district I’ve been proud to call home for 26 years.”

“We’re very pleased to offer SD 22 residents an excellent candidate and a real choice in their representation in the Texas Senate,” added Texas Democratic Party Chairman Boyd Richie. “These voters deserve a Senator who has lived in the district, knows its communities, and runs a campaign on the issues that matter to his neighbors – not on partisan rhetoric.”

The Statesman notes that timing is an issue.

If Birdwell were to be declared ineligible before August 24, the GOP chairs in Senate District 22 could select a replacement for him — with [former Sen. David] Sibley [who lost to Birdwell in the special election runoff] a likely front-runner. If a decision were to come after August 24, Birdwell’s name would remain on the November ballot and a special election might be required to replace him if he won the general election, according to party officials.

That’s actually not a terrible scenario for the Republicans. They’d still be strong favorites to win both of those races, assuming nothing unusual happened. But you never know, and if Birdwell is declared ineligible after the 24th and wins in November anyway, the seat would be open for as long as it takes for a replacement to win the special election and almost certain runoff. In any event, I’m glad to see we have a candidate, and I can’t wait to see how the court rules on this.

Will they or won’t they field a challenger to Birdwell?

That’s the question for Democratic Part chairs in SD22.

According to several Democratic consultants and officials knowledgeable about strategic discussions, a number of factors are being considered.

These include the political makeup of the district, the cost of running a viable campaign and the impact a race could have on Democratic U. S. Rep. Chet Edwards’ re-election efforts.

[…]

Several Democrats noted there was a chance a state Senate contest could boost turnout in the conservative northern pocket of Edwards’ district, where Birdwell lives. That potentially could hurt Edwards in what’s predicted to be a close race against Bill Flores, R-Bryan.

However Jeff Rotkoff, an Austin-based Democratic consultant who has worked on a number of Central Texas campaigns, said he thought that argument was sometimes overstated.

“I understand why that’s a calculation people make, but when there have been particularly strong or weak candidates up and down the ballot, it’s never prevented Chet from being re-elected,” said Rotkoff, who works on Democratic state House races.

I’m with Jeff Rotkoff on this. Open Senate seats don’t come 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 lawsuit, and you see what happens. I see the risk of stirring up people who wouldn’t have otherwise voted by challenging Birdwell, on the ballot and in the courtroom, as being marginal. Go for it, y’all.

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.

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.

Will Averitt not withdraw from the ballot?

The story so far: Republican State Sen. Kip Averitt dropped his re-election bid in January, citing health concerns. As it happens, his announcement came after the deadline to withdraw from the ballot, and since the other guy wasn’t well-liked among the establishment, he wound up being supported for renomination on the grounds that he could later withdraw and have a suitable replacement selected. (The Dems would then also get to pick someone.) He won, and then he resigned, and there was a suitable replacement selected for the special election to fill out his term, his predecessor, David Sibley, who would be the selected replacement when he won the special election. Sibley led the field but was forced into a runoff. That runoff election was today, and we pick up the story from there.

With a commanding lead, Republican Brian Birdwell beat David Sibley, a former Republican state senator, in the special runoff election in Senate District 22.

[…]

While the election may have ended, the excitement is only beginning. Averitt is still the Republican nominee on the November ballot to determine who will represent the district in January and beyond. Averitt has indicated he might not give that slot up to Birdwell (even if it means returning to the Senate), because Averitt does not believe that Birdwell has met the constitutionally mandated five-year state residency requirement — a question that has been raised, but never legally challenged, throughout the race.

In April, a retired appeals court judge issued a declaratory judgment that Birdwell met the five-year state residency requirement. But the Waco Tribune-Herald reported that legal experts questioned the ruling, citing the fact that only one side of the case — Birdwell’s — was presented.

Got all that? So much for the best laid plans. Averitt fears that if he withdraws, Birdwell’s eligibility will be more forcefully challenged, and it’s possible he could be knocked off the ballot, leaving the seat a free pickup for the Dems, which is pretty amazing when you consider they don’t currently have a candidate in the race. The only way he can test this theory is to actually withdraw, so plan B is to run for re-election, which he will win easily as he would be unopposed; it’s only if he, the actual November nominee, withdraws that the Dems get to fill their slot. He could always resign at some point in 2011, either immediately after the election, which would mean a second shot at electing the “right” guy in a special, or after the session. In the latter scenario, barring any special sessions, even if the “wrong” guy wins he won’t get to do much of anything, since all Senate seats are up in 2012 and he could be challenged in a primary. I’ve seen a lot since I’ve been following politics closely, but this is a new one on me. Stay tuned to find out what Kip decides to do.

Election results

Congratulations to Galveston Mayor-Elect Joe Jaworski, who won a majority of the vote in a five-candidate race.

“I think our message was one of energy and it was one of progress in Galveston,” Jaworski said. “I think people are tired of thinking of Galveston as a wounded city, and I think, in our campaign, they saw something that showed a clean, powerful, connected Galveston for the future.”

Jaworski beat four challengers, including one who dropped out midrace, according to complete but unofficial results.

Jaworski’s closest competitor, Betty Massey, earned just less than 25 percent. Massey on Saturday night congratulated Jaworski and promised to remain involved in shaping the island’s policy and recovery.

Mayor Pro Tem Danny Weber earned 20 percent; Bill Quiroga earned 2 percent, and Greg Roof, who stopped campaigning in March, had 1 percent.

Jaworski said his first acts as mayor would be to clamp down on the pettiness and hostility that bubbled up among sitting city council members.

“I expect a first meeting that puts away the rancor, a first meeting that follows an agenda, and a first meeting that prioritizes our city’s appearance and infrastructure and economic well-being … before any personality contests, before any petty disputes,” he said. “And, every minute of every city meeting, we’re going to be spreading hope and optimism.”

I’m delighted by this. Jaworski’s an ace, and I think he’s exactly what Galveston needs now. My best wishes to Mayor-Elect Joe Jaworski. Other Galveston County results are here; there will be several runoffs for City Council there. In the other race I was following, Chula Ross-Sanchez fell short in her race for City Council in District 6, losing to Diana Puccetti by a 51-49 margin. The Chron and Martha have more, while Stace reports on results in his area.

There will be a runoff for the open SD22 seat.

Republicans David Sibley and Brian Birdwell will meet in a runoff — date to be set by Gov. Rick Perry — for the open state Senate seat in Central Texas.

Sibley led in the special election voting with 45 percent of the vote, followed by Birdwell, with 36.5 percent, Democrat Gayle Avant, with 13.3 percent, and Republican Darren Yancy, with 5.2 percent.

[…]

The election pitted Sibley, a former Waco mayor and state senator who’s been lobbying in Austin for the last decade, against Birdwell, a survivor of the 9/11 attack on the Pentagon who is now a conservative Christian motivational speaker living in Granbury. Avant will retire after the end of the current school year after a career as a political science professor at Baylor. And Yancy, a salesman who lives in Burleson, has now lost two shots at the seat. He was on the ballot against Averitt in the March primary, coming up far behind even though Averitt didn’t campaign.

The winner of the special election runoff will serve until January. The winner of the general election — Averitt or a person to be named later — will run for the chance to serve starting then.

Sibley won in all but three of the district’s ten counties, but two of those — Hood and Johnson — turned out relatively big votes. The former senator got walloped in Hood, where Birdwell got 3,625 votes to Sibley’s 819 (in percentages, that’s 68 to 15, in Birdwell’s favor, with the rest of the votes going to the other two candidates).

Here was Burka’s preview of that race. It’s highly likely that Averitt will withdraw from the ballot after the runoff, and that the winner of that runoff will be selected as his replacement for the November election. The Democrats will then get to pick someone as well, as they had no one file for the March primary.

BOR has some Austin-area results, including the good news that Tom Musselman, father of BOR’s Karl-Thomas Musselman, was elected Mayor of Fredericksburg.

Finally, on a personal note, congratulations to my cousin-in-law Bill Metzger for his election as Dallas County Community College District trustee. Way to go, Bill!

Elections today

Just a reminder that for some of you, there are elections today, including a special election to replace State Sen. Kip Averitt in Waco, school board elections in Austin and Dallas, and of course elections for Mayor and City Council in Galveston and Farmers Branch, among others. Polls will be open till 7 PM – check your County Clerk webpage for voting locations. As you can imagine, these tend to be very low-turnout affairs, so your vote counts a lot. If you’ve got an election in your neighborhood, please go vote. Thanks very much.

Sibley in for SD22 special election

With the official resignation of State Sen. Kip Averitt, his predecessor in SD22, David Sibley, has announced that he will be a candidate for the May special election to fill the remainder of Averitt’s term.

The winner of the expected special election isn’t guaranteed a shot at the general election to serve during the 2011 legislative session.

That will be decided by the county party chairs in the district. The chairs from the Democratic and Republican parties each will meet to select replacement candidates on the general election ballot.

But Sibley made it clear in his statement that he’s running to position himself as his party’s choice in November.

“I believe I have a proven conservative track record at getting results, the understanding of the legislative process and the familiarity with issues of importance to Senate District 22 that will benefit all 10 counties in the district during this tough upcoming session,” he said.

Darren Yancy, who lost to a non-campaigning Averitt in March, is also in. I feel confident that several others will jump in as well. I’ll be surprised if Sibley wins this election and does not get named the Republican nominee for November. He’s the strong favorite for each. More from the Trib, which notes that there will also be a special election in HD100 to fill out Rep. Terri Hodge’s term. No word yet if Eric Johnson will be in for that – he may as well, it’d be some added seniority for him – but he’ll be the representative from HD100 next year regardless thanks to his win in March.

Averitt resigns

After announcing his withdrawal of his re-election bid to the State Senate but getting nominated anyway because it was too late to remove his name from the primary ballot, Sen. Kip Averitt has formally resigned, which will trigger a special election for his seat in May.

Averitt said last month his abrupt and surprising decision to withdraw was out of concern for his health.

“I have diabetes and high blood pressure, and my doctor has advised me that I am a walking heart attack,” Averitt said in the statement.

“While I have tried to regulate my health with diet, exercise and medication, my doctor has unequivocally recommended that reducing stress is a key component of my treatment. My family and I thank you for your thoughts and prayers.”

[…]

Former Sen. David Sibley of Waco, whom Averitt succeeded in the State Senate, issued a statement Monday evening in which he said he had been approached about again seeking the seat.

“Many in the District have asked about my interest in the position and I am honored they would consider me,” Sibley said.

“In my discussions with supporters and Republican county chairs I have heard a lot about the need for conservative, effective, common-sense government and look forward to continuing these conversations in the coming days,” he said.

All things considered, Averitt was a decent Senator, and Sibley wouldn’t be too bad, either. The special election would be to fill out the remainder of Averitt’s term; he would still need to be replaced on the November ballot, which would be a task for the relevant county party chairs. As Averitt had been unopposed, that means the Democrats would get to pick someone as well. Anyone want to suggest a possible candidate? Leave your ideas in the comments. My best wishes for continued good health in retirement to Kip Averitt. The Trib has more.

Averitt drops re-election bid

State Se. Kip Averitt (R, Waco) has withdrawn from the ballot due to health concerns.

State Sen. Kip Averitt, R-Waco, said Wednesday afternoon that he has ended his re-election campaign, citing health problems.

The decision comes a week and a half after the closing of the filing period to run for state elected office as a Democrat or Republican and leaves Burleson insurance agent Darren Yancy as the sole candidate left to campaign in the GOP primary.

No Democrats have filed to run for Averitt’s seat, which covers McLennan, Coryell, Falls, Bosque, Hill, Navarro, Somervell, Hood, Johnson and Ellis counties.

Averitt, 55, a certified public accountant, has represented Waco since 1992, when he was elected to the state House. He issued a statement to the Tribune-Herald that said in recent years he has struggled to balance health and the interests of his family with his role as a public servant.

“I have been advised that I must now put my health above all else — for me and my family — and it is with deep regret that I announce today the cessation of my Senate campaign,” the release states.

That’s unfortunate. My best wishes to Sen. Averitt for a healthy retirement.

The lack of a Democratic candidate in this race, which would seem to hand this district from the fairly moderate Averitt to the teabagger Yancy, inspired some back and forth and back again about whether the Dems blew an opportunity or were in fact playing it smart. It turns out, however, that Averitt’s announcement comes after the deadline for withdrawing from the ballot. So, not only will he remain an option for Republicans on March 2, as the Quorum Report notes, he could give the Dems a second chance to compete:

If Averitt withdraws after winning the primary, then the Republican District Executive Committee (comprised of the County Chairmen from each of the counties SD 22, Sec 171.054) selects his replacement (not the SREC/SDEC); and the Democratic District Executive Committee also gets to nominate an opponent (Sec. 145.036). No litigation necessary.

Ross Ramsey elaborates.

If Averitt wins the primary — as incumbents generally do — and then quits, Republican Party officials can choose a candidate to replace him. But his departure opens a door for the Democrats. If he’s off the ballot and neither of the major parties has a candidate, both of them — the Republicans and the Democrats — get to add a nominee for the race. What is now on track to be a a Republican race would suddenly be competitive, at least on paper.

If Yancy wins in March, the Democrats don’t get to play. Averitt goes home, Yancy runs in November against a Libertarian, and that’s that.

So there’s that. And though it’s highly unlikely to make for a competitive race – SD22 was pretty darned red in 2008, it at least means there’s still a chance of a better outcome than Sen. Darren Yancy. Keep hope alive, and get those recruitment efforts for 2012 (*) started anyway, just in case.

(*) – Yes, 2012. All Senate seats are up in years that end in 2, which is to say the first election after redistricting. Senators then draw straws to see who has to run again in the next election, and who gets to wait four years.