To Hold Seat, Democrats Must Vote for Late Senator

State Sen. Mario Gallegos, D-Houston, passed away on Tuesday, Oct. 16, 2012.
State Sen. Mario Gallegos, D-Houston, passed away on Tuesday, Oct. 16, 2012.

State Sen. Mario Gallegos Jr. died Tuesday after a long illness, just days before voters begin filling in ballots that include the Houston Democrat's name. So starts a cringe-inducing change of power that occurs not when an officeholder loses a re-election bid, but when one dies shortly before Election Day and only days before the start of early voting.

It's too late to replace Gallegos on the ballot. If the late senator wins next month, his party has a chance to hold his seat in the state Senate. Should voters instead turn to the live Republican on the ballot — Rasuali Bray — Gallegos' death could figure into partisan control of the Texas Legislature.

Democrats, after a moment of silence, respect and prayer, will be asking voters to vote for the late Gallegos, who served more than two decades in the Legislature before he died Tuesday, five years after a liver transplant. That would force a special election to replace him, potentially by another Democrat. State Rep. Carol Alvarado and former Harris County Commissioner Sylvia Garcia are among those mentioned as potential Democratic candidates. Republicans in his strongly Democratic district will make their pitches for a candidate most voters haven't heard of. Bray is an Air Force veteran who came to Houston from New Orleans after Hurricane Katrina. His first name is on his campaign finance reports; he's on the ballot as R.W. Bray. He has raised less than $8,500, according to those reports, including $5,800 he contributed himself.

It's not a swing district. President Obama got 63.5 percent of the vote in 2008. Republican Gov. Rick Perry got 31 percent in 2010. It's not a race the Democrats were sweating.

And Gallegos has been a stalwart. He was elected to the Texas House in 1990 — the year Democrat Ann Richards beat Republican Clayton Williams, and the year Perry shocked everyone and won statewide office as a Republican candidate for Agriculture Commissioner. In 1994 — the year George W. Bush beat Richards and the last year that any Democrats won statewide office in Texas — Gallegos was a union guy, a firefighter, an unwavering vote for the Democrats. He went to Albuquerque when Democratic senators left Texas to break the quorum and thus block unprecedented mid-decade redistricting in 2003. When he got his liver transplant in 2007, there were legislative consequences. Ignoring his doctors, he took to a hospital bed placed in a room next to the Senate chamber so that he could be on hand to vote against a voter ID bill if it was brought up for consideration. It didn't pass until 2011.

His passing opens a weird section of election law, mainly because of the timing. It's too late in the election year to replace him on the ballot. So if the late senator wins the election, the governor would set a special election to replace him. If voters elect Bray, the Republican would become the senator and that would be that.

Bray would be the 20th Republican in the 31-member Senate. If Democrat Wendy Davis of Fort Worth were to lose her hotly contested re-election race, Republican Mark Shelton would become the 21st Republican. That's consequential: Under current rules, it takes consent from two-thirds of the senators to bring up legislation for consideration. With 21 senators, the Republicans would have two-thirds and, on partisan bills, enough votes to disregard the Democrats.

It's not unusual for people die in office, but they don't usually die so close to elections when their names are on the ballot.

State Rep. Ed Kuempel, R-Seguin, died two days after winning re-election in 2010. His son, John Kuempel, was elected in December of that year to replace him in the House; the younger Kuempel is on the ballot this year seeking re-election.

Rep. Ken Legler, R-Pasadena, died in June, but wasn’t running for re-election. His widow, Barbara Legler, is serving out his term (she was the only candidate who filed for a special election to serve the remainder of his term), and the election to replace him for a full term starting in January is proceeding as it would have had he lived.

State Sen. John Wilson, D-La Grange, died in September 1982 — apparently the last state senator to die close enough to an election that his name could not be replaced on the ballot. Wilson won re-election in November. On the same day, state Rep. John Sharp, D-Victoria — then a state representative and now the chancellor of the Texas A&M University System — won a special election for the remainder of Wilson's term, according to the Legislative Reference Library. He won the special election for a full term in December of that year, about five weeks later. 

Gallegos' death means there will be at least six new senators in that body next year; four others retired and one was defeated in the primary election. 

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