Texas Senator's Voting, Residency Questioned

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.

Birdwell didn't respond to numerous requests for an interview, though his former campaign aide and now Senate chief of staff, Casey Kelley, requested and received a copy of the documents to brief his boss. Instead, Birdwell issued this statement via e-mail: "These questions have been asked and answered by the voters of SD-22. My candidacy was certified by the Secretary of State. My case was upheld by an appellate judge. I was elected overwhelmingly by the people. I was sworn into office by both the Governor and Lt. Governor of Texas, and I just received a unanimous vote to be the Republican nominee for November. I think it's time to move on now and get down to the business of serving the people of SD-22."

[Editor's note: After this story was published, Birdwell expanded on his comments. That's posted here.]

Birdwell bested a field of four other candidates who sought to succeed state Sen. Kip Averitt, R-Waco, in a spring special election. Averitt filed for re-election last year but changed his mind after it was too late to get off the ballot. He didn't campaign but easily won the GOP nomination in March anyway. He then resigned, forcing a special election for the remaining months of his term. In that race, Birdwell faced Burleson businessman Darren Yancy, former state Sen. David Sibley and Gayle Avant, a Baylor University political science professor. He finished second in the first round but prevailed in last month's runoff against Sibley. Averitt withdrew his name from the nomination for the next term, and a majority of the district's county Republican chairs voted last week to replace him on the November ballot with Birdwell.

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.

Two years ago, Birdwell was encouraged to run for the Texas House against state Rep. Jim Keffer, R-Eastland. He opened a campaign account with the Texas Ethics Commission but withdrew before filing for office. House members have to live in the state for at least two years; the issue then was whether Birdwell, who returned to Texas from Virginia in May 2007, had been around long enough to qualify. If that date were the standard now — it's not, necessarily — he would be too new to the state to qualify for the Senate with its five-year residency requirement. 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."

Political residency isn't purely a matter of where a candidate sleeps every night. Soldiers stationed all over the world, for instance, vote in American elections here all the time, even if they've been out of Texas for years. But voting in a place generally establishes residency in that place — Dallasites don't get to vote in San Antonio's mayoral elections, and Hawaiians don't get to choose whether Rick Perry or Bill White will govern Texas. Birdwell's problem isn't that he was sleeping in Virginia for all those years — especially when he was on active duty in the U.S. Army — but that he was voting in local elections there, just like all the other Virginians.

Birdwell was working in the Pentagon on the day of the 9/11 attacks in 2001. He was critically burned when terrorists flew a passenger jet into that building and spent years in Virginia receiving the medical care he needed — first to stay alive and then to be nursed back to health. He remained in the Army until June 30, 2004 (he's now a retired lieutenant colonel). He and his wife, Mel, bought land on Lake Granbury, southwest of Fort Worth, in October 2005, built a house and moved back to Texas from Virginia in May 2007. In January 2003, according to the Texas Secretary of State's office, he incorporated Face the Fire Ministries — a nonprofit set up to help burn victims and their families. He's an accomplished motivational speaker, too; many Texas Republicans heard him for the first time at their state convention two years ago and came away thinking they'd just seen a strong future candidate. He bore that out in his first run at elected office in the special election earlier this year, beating Sibley, a seasoned, well-financed and well-known establishment Republican endorsed by former President George W. Bush.

But the double-voting and residency questions remain unresolved. Birdwell was registered to vote as a resident at his parents' address in Fort Worth, and Tarrant County records show him voting in general elections in 1998, 2000, 2002 and 2004. He also voted, according to the county, in the Republican primary and primary runoff in 2000 and in a city election that same year. That list includes two elections after 9/11, when Birdwell was living and being medically treated in Virginia while continuing to vote in Texas.

Voting records in Virginia, unlike those in Texas, aren't available to the public. But Birdwell's records — released to the candidate himself, according to Virginia election officials — somehow turned up in a filing with the secretary of state designed to thwart his candidacy earlier this year. That office, as is its custom in cases that involve findings of fact, simply filed the papers away and allowed Birdwell to remain on the ballot. His opponents never took the issue to a court to settle the facts and to determine, once and for all, whether he's eligible to serve.

According to those voting records, Birdwell lived in Manassas, Va., and registered to vote there in February 2004. According to Prince William County records, he voted in the general elections there in 2004, 2005 and 2006, and in the Republican primary in 2005 (Texas state elections are held in even-numbered years; Virginia's are in odd-numbered years). Birdwell canceled his Virginia registration in June 2008. He registered to vote in his current location — Hood County — in June 2007 and has voted there ever since. It's not illegal to register to vote somewhere without canceling the old registration. But both counties, the one in Texas and the one in Virginia, show Birdwell voting in the November 2004 election. That's against the law, but it has apparently never drawn official attention. Election officials in Texas and in Virginia said they weren't aware of the records indicating Birdwell cast two ballots in the same election.

Tarrant County Elections Administrator Steve Raborn says his county's records show Birdwell voted in person on Election Day in 2004. He also says Birdwell's brother — Douglas Todd Birdwell — was registered at the same address and didn't vote that day, though he voted in 2003 and in 2006. That raised some questions from Birdwell's folks about whether the vote was mistakenly recorded as coming from Brian Douglas instead of from Douglas Todd, but there's no evidence to that effect. The actual signature sheets have long since been destroyed — counties only have to keep those for 22 months. In Tarrant County's official records, it went down as Brian's vote. Virginia's records say he voted there as well.

Residency issues are generally left to the courts, which means they are generally left to a candidate's opponents, who weigh the wisdom of a challenge on the facts and of the political risks. In his application for a spot on the ballot, signed by Birdwell at the end of March of this year, there's a spot where the candidate is asked how long he's lived in the state, in the county and in the district. Birdwell listed 36 years, seven months in the state and two years, 10 months for the county and district. That would satisfy the requirements of five years in Texas and a year in the district.

In Birdwell's case, none of his special election opponents took it to the courthouse, though some of them aired questions on the subject when talking to reporters and others. 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 stored those away, all that remained was talk and news reports along the way. But the state filing supplied the factual underpinning — the Virginia voting record — for the argument against Birdwell's Texas residency.

That package also includes Birdwell's "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 legit.

Birdwell attempted to address the residency questions himself, filing in Hood County District Court for a declaratory judgment earlier this year to settle the controversy. His filing included his military records and records of his property interests in Texas. It didn't include his Virginia or Texas voting records, though his pleading makes reference to his voting, paying property taxes, the recreational licenses and so on. And it asserts, "Just because Col. Birdwell owned a home and voted in Virginia does not conclusively establish anything regarding the elements proving Texas residency under Texas law." He got the judgment he sought, though no other parties testified or brought evidence.

Most importantly, he won the special election. Now he's elected to a term that ends in January, and he's the Republican nominee for the two-year term that begins that month (2011 is a redistricting year, and the entire Senate, usually elected in staggered four-year terms, will stand for election in 2012). Republicans could replace him if he were to withdraw or be disqualified before Aug. 20, but candidates can't be removed from the ballot after that date. Likewise, the Democrats have until that date to name their own nominee if they choose to do so. Those deadlines, combined with questions of whether Birdwell is eligible, potentially give ambitious candidates from either party another chance at winning a seat in the Senate, but also limit the time for challenging his status in court. Lawyers from all sides have been examining the case and the dates, and political folk — some working in Birdwell's defense, some against him — are surveying the field for possible candidates, either to replace or run against him. 

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