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Parsing Votes

When they say it's all over but the shoutin', that's another way of saying it's not over. Voters have done their part, and a handful of Texas House contests are now in the hands of lawyers and election officials. Several close elections involving incumbents still fall short of final outcomes.

When they say it's all over but the shoutin', that's another way of saying it's not over. Voters have done their part, and a handful of Texas House contests are now in the hands of lawyers and election officials. Several close elections involving incumbents still fall short of final outcomes.

The loudest unresolved election is the one in Harris County, where House Appropriations Chairman Talmadge Heflin, R-Houston, appears to have lost to Democrat Hubert Vo. That loss was first thought to be 52 votes, then 38 votes. After mail-ins were counted, it was 26 votes, and after provisional votes were tallied, Vo's lead increased to 31 votes, where it now stands.

While the numbers could change again, the question is whether they could change enough to avoid a recount and/or an election contest in the House of Representatives. Probably not. Given Heflin's importance to the Republicans running the Texas House and, for other reasons, to the Democrats who oppose them – not to mention the swarm of lawyers hired by both sides – we'd bet against a final result from the county clerk's office. Even without all that, if an election result is within a couple of dozen votes, only a chump would go home without a recount.

The House Republican leadership has a tough decision to make: Heflin is by far their best budget mechanic and losing him would be a true blow. Budgets are hard to write in any environment; this time, school finance, the possibility of new taxes, and the cost of troublesome holes in the health and human services safety net overshadow the process. If they don't fight, they'll lose their best hand. But if they do fight, they risk looking like election thieves, providing fodder for opponents and taking a chance that voters won't like being overruled by their public servants.

The decision on how to proceed will come after votes are officially canvassed, late next week. If the canvass doesn't produce a winning result, Heflin's crew can seek a recount. If the recount doesn't produce a win, they can challenge the results in an election contest. For most offices, that means they'd go to court; in legislative races, that means the full House would decide whether the election was clean. If they decide it's copacetic, Vo becomes a full member and Heflin stays home. If they decide the election was bogus, they send the contestants back to Houston for a special election to determine the winner. And Houston officials get to answer questions about why, if that election is bogus, the other elections in the county – including those that overlap HD-149 – produced legitimate results.

While there is no obvious successor to Heflin in the House, the names of five state representatives come up most often in conversations about what's ahead: Jim Pitts, R-Waxahachie, Peggy Hamric, R-Houston, Vilma Luna, D-Corpus Christi, Carl Isett, R-Lubbock, and Dianne White Delisi, R-Temple. That list might have been led by Rep. Arlene Wohlgemuth, R-Burleson, but she had no idea Heflin was in peril – who did? – and passed on an easy reelection bid on her way to losing a congressional race to U.S. Rep. Chet Edwards, D-Waco. It's a short walk from the top to the bottom.

Luna is Heflin's number two, and went to Houston to help his reelection bid (and got her trial lawyer firm to contribute, a move that kept most politically active trial lawyers from contributing to Vo). But she's a Democrat, and House Speaker Tom Craddick was watching when former Lt. Gov. Bill Ratliff got skewered by fellow Republicans for putting Sen. Rodney Ellis, D-Houston, in charge of Senate Finance. Everyone else on the list has Appropriations experience; Pitts is the early frontrunner, but not a lock. Their counterpart, Sen. Steve Ogden, R-Bryan, is also experienced in state finance, but is also a rookie at chairing the committee that writes the budget.

Counting on Change

When candidates are within a certain range of winning – when the differences between first and second places are microscopic or at least teensy – the candidates have an obligation to ask election officials if they're sure about the result. The argument is about whether the difference is minute or the loser is obstinate, but even candidates have the right to ask for (and pay for) a recount.

Not counting the Vo-Heflin thunderclap, two House races are on the way to a recount and two more are on the list of "probably not, but..." To wit:

• In Travis County, the margin narrowed to 147 votes in favor of Rep. Todd Baxter, R-Austin, over Democrat Kelly White when the mail-in and provisional ballots were counted in HD-48. That's out of 68,663 votes cast. The Election Night number, if you're an insomniac and/or just can't get enough of this trivia, was 171 votes, also in Baxter's favor. That same count in Travis County widened the margin in HD-50, where Rep. Jack Stick, R-Austin, lost to Democrat Mark Strama. What had been a difference of 556 turned into a difference of 570 votes. Neither White nor Stick has officially asked for a recount. Travis County voting is electronic, which means you can tell the machines to recalculate, but there are no ballots for election officials to look at (other than mail-in votes). The Stick-Strama contest is probably out of the range of possibility; White has indicated she wants the votes re-tallied.

• After they looked at all the ballots in Bexar County, state Rep. Ken Mercer, R-San Antonio, was still behind by 492 votes. But even before they had reached that conclusion, he said he wants a formal recount. Mercer lost to Democrat David McQuade Leibowitz by 515 votes on Election Day, but after provisional ballots and the military ballots the Republican was relying on were counted, he was still far behind. On paper, that's a Democratic seat, but Mercer's campaign had most of the Smart People convinced he would hang on for a second win. It was an upset because it wasn't an upset.

• The vote difference between state Rep. Mark Homer, D-Paris, and Republican Kirby Hollingsworth of Mount Vernon in HD-3 has been trimmed to 192 in favor of the Democrat, and Hollingsworth is leaning against at recount at the moment. The margin shrunk to 187 at one point, then swelled a bit with some provisional ballots qualifying. It'll likely change some more as county election officials finish their work. The challenger was 313 behind in the first tally after the election, but some votes that were counted locally somehow didn't get reported to the Texas Secretary of State's office, he says, and those narrowed the margin. The latest official count showed Hollingsworth winning in four of the district's six counties, while Homer was winning overall. If nothing dramatic happens, he doesn't plan to seek a recount. "On the one hand, it's a small percent difference, but it's still quite a few votes," Hollingsworth said. He's waiting until each county in the district has canvassed its votes, and a big change could change his mind and prompt him to ask for a new count.

Unit Pricing, Just Like the Grocery Store

Rep. Talmadge Heflin, R-Houston, lost reelection (so far) while spending an average of at least $27.63 per vote. And he didn't even run TV commercials. Republican John Otto of Dayton was the beneficiary of one of consultant Bill Tryon's classic stealth campaigns, and upset an incumbent, spending only $1.80 per vote on the way. The numbers are even starker when you look at their opponents: Hubert Vo's per-vote cost was $8.85, less than a third of Heflin's, and Rep. Dan Ellis, D-Livingston, spent an average of $4.74 per vote while losing to Otto. We got the numbers by dividing candidate expenses (through the reports filed the week before the election) by the number of votes they got. (Our chart of money in top races is at www.texasweekly.com/documents/HouseMoney2.pdf.)

Expensive winners with their dollar-per-vote amounts include Reps. Scott Hochberg, D-Houston, $17.58; Patrick Rose, D-Dripping Springs, $17.06; and Todd Baxter, R-Austin, $15.08; and challenger Mark Strama, D-Austin, $16.22. High-priced losers and the people who beat them include Alan Askew, R-Wimberley, $14.15, who lost to Rose; Kelly White, D-Austin, $16.99 losing to Baxter; Jack Stick, R-Austin, $15.71 losing to Strama; and Ann Witt, R-Houston, $24.03 losing to Hochberg. The average cost per vote in the top two dozen House races was $7.31.

A Surprise Election Contest

Susan Delgado, whose revelations shook a remarkably nasty Democratic primary this year for Sen. Mario Gallegos Jr., D-Houston, has filed a complaint with the Texas Secretary of State contesting his eligibility to serve in the Senate. She says he doesn't live in the district he was elected to represent.

Gallegos, who is married, admitted before the primary that he'd had a long-running affair with Delgado, a former stripper. She sued him, saying he abused her during the relationship, an allegation he denied. He also publicly apologized, and then won his primary with 54 percent of the vote over former state Rep. Yolanda Navarro Flores, D-Houston. In this month's general election, Gallegos won election with 92 percent of the vote, beating Libertarian Tony Depperschmidt and Delgado, who got 119 votes as a write-in candidate.

Flores raised the residency issue during the primary, saying Gallegos was claiming to live in a house in the district owned by his mother, while also claiming a homestead exemption on a house outside the district (but also in Houston) that he and his wife own. Then and now, he said he legally resides at the house owned by his mother and said his wife is the one claiming the homestead exemption on the other house. Delgado apparently hired a private investigator to back her claim that he's living outside the district and therefore doesn't qualify for the office he won on November 2.

Doug Ray, an attorney for Gallegos, says the complaint is frivolous and ought to be thrown out. His view: Election contests are about losers chasing winners in the hope that the Senate will overturn the results and order new elections. Delgado, he says, isn't seeking to replace Gallegos as a result of a Senate ruling, and so this isn't a proper election contest. To do what she wants, he says, she should write to other senators and ask them not to allow an ineligible candidate to take their place in the Senate.

A state district judge tossed a lawsuit on Gallegos' residence the day before the SOS got Delgado's complaint, saying the courts don't have jurisdiction, but the Senate does. Paul O'Finan, one of Delgado's lawyers, says Gallegos is "defrauding voters" by claiming to represent them when he doesn't live in their district. He says Delgado has proof Gallegos lives outside the district, and that the senator admitted as much to her in private. "It's either vote and election fraud or it's tax fraud," he says, contending Gallegos is taking a homestead exemption on a house where he says he does not live.

O'Finan is a GOP precinct chairman and president of the Cherry Tree Republican Club in Houston. He's also the lawyer who tried to sue Sen. John Whitmire, D-Houston, to try to force his return from Albuquerque when Democratic senators bolted last year's congressional redistricting fight. Though he's a Republican, he's pessimistic about Delgado's chances in the Republican-controlled Senate. "The spineless Republicans in the state Senate are probably not going to do anything... it's a go-along, get-along kind of club, and they lack moral courage," he says.

The complaint jumps from SOS to the Texas Senate, where lawyers for Lt. Gov. David Dewhurst are studying it now. If they decide it's a frivolous complaint, they can throw it out. Otherwise, the Senate becomes the judicial body that decides whether she's right. If she's not, Gallegos will take the seat he was reelected to last week. If the Senate rules in Delgado's favor, the seat would be legally vacant and a special election would have to be called to fill it. O'Finan and Nathan Gordon, another lawyer for Delgado, say they don't know whether she would run for Senate if Gallegos is displaced.

• This addendum to the Hubert Vo-Talmadge Heflin recount story came in on deadline from Bob Richter, spokesman for House Speaker Tom Craddick. Richter said it's aimed at "mischievous rumors and unfounded speculation, some of it published, some not" around that election dispute. He's referring to gossip that his boss wants to turn the tide in Heflin's favor. The official quote from Richter: "Whomever the voters want will be elected the state representative from District 149." Craddick's job in an election contest: Decide whether to proceed, then appoint House members to run it.

A Texas AG in Washington?

Texan Alberto Gonzales is President George W. Bush's pick to succeed U.S. Attorney General John Ashcroft, an appointment that requires approval from the U.S. Senate.

Gonzales is chief counsel in the White House, having followed Bush to Washington, D.C., after the 2000 elections. He's a former Texas Supreme Court Justice, and before that, was Texas Secretary of State for about 13 months. He took the SOS post after three years as general counsel to then-Gov. Bush. He. Gonzales has been mentioned off and on for several years as a potential Bush pick for the U.S. Supreme Court, but the AG job came open with Ashcroft's resignation and Bush's reelection.

He's close to Bush, as evidenced by the president's willingness to choose Gonzales for each of those jobs since 1995, and the appointment will move the Department of Justice closer to the White House than it has sometimes been under Ashcroft.

Gonzales could face questions about a legal memo to the president that said the Geneva Conventions that govern countries' conduct in war don't fully apply to terrorists who aren't associated or affiliated with a particular national government. The convention's limitations on questioning enemy prisoners wouldn't apply, according to the memo. He told the president that the interpretation could lessen the chances that Americans involved in harsh interrogations would be open to war crimes charges once they returned to the states. That came to light after the scandal at Abu Ghraib, and Gonzales' public standing suffered.

And he was the author, as a Texas Supreme Court Justice, of the parental consent opinion that became a red flag in the Senate's bust of the judicial nomination of Priscilla Owen. Owen, a colleague of Gonzales' on the Texas court, was criticized by Democrats within and without the Senate for some of her work here. In one case on parental notification, Owen wrote a dissent to Gonzales' majority opinion, and he shot back in the text of his opinion by saying adoption of her point of view "would be an unconscionable act of judicial activism."

In spite of that writing and of other differences that were brought up during the Senate's look at Owen, he defended Bush's appointment of Owen when he was White House counsel, saying the two had disagreed in that and other cases, but that she would be "a fine judge." In some pro-life organizations, that exchange of opinions flagged Gonzales as a problem. The Republican National Coalition for Life, for instance, said his opinion in the Texas case – he and majority affirmed an underage woman's right to seek a judicial bypass to parental notification before having an abortion – raised concerns that he wasn't fully with the conservatives on those issues.

Ashcroft said in his resignation letter that he'll stick around until his successor has been appointed and confirmed by the Senate.

Eight Down, One to Go

David Medina, a former state district judge who is Gov. Rick Perry's general counsel, will fill one of the two empty chairs at the Texas Supreme Court, following the path cut by Alberto Gonzales under the previous administration.

Medina is the second Hispanic appointed to the state's highest civil court by Perry; Xavier Rodriguez lost a Republican primary after the governor put him on the court. This will be his second job with funny clothes: former Gov. George W. Bush appointed Medina to a state district judgeship in 1996, a position he held for four years before becoming a private-sector attorney. Medina has one known blemish on his resume: a drunk driving arrest in 2000 that ended with a hung jury and his agreement to plead guilty to reckless driving, according to the Houston Chronicle.

Medina will take the seat emptied when Wallace Jefferson became chief justice of the court, which happened after Tom Phillips retired from that middle seat. Perry has another spot to fill on that court. He's got to replace Michael Schneider, who quit the court to take a Bush appointment to the federal bench. Medina's appointment will need Senate confirmation, and if he wants to run for a full term of his own, he'll be on the ballot in two years.

Ch-ch-ch-ch-changes at SOS

Texas Secretary of State Geoff Connor is sticking around for the official counting of Electoral College votes, but friends say he plans to resign his post by year-end. Assistant Secretary Luis Saenz is also leaving that office, but might not go far. Connor's likely replacement: Weatherford car dealer Roger Williams, a prolific fundraiser for President George W. Bush and other Republicans who has never held state office. He's given serious looks to a couple of contests in the last few years – state Senate and Congress – and decided against running. SOS often leads to the ballot, however, and sometimes even to electoral success: Tony Garza Jr., Ron Kirk, Bob Bullock and Mark White all served as the state's elections official before moving on to win elected office.

One possibility is that Saenz will stick around to run Gov. Rick Perry's reelection campaign, and if that sounds early, it's because you haven't looked at a calendar. The 2006 Republican primary is only 16 months away and Perry, U.S. Sen. Kay Bailey Hutchison and Comptroller Carole Keeton Strayhorn are already circling each other. And here's the beauty part, as Ross Perot might say: Saenz has worked for all three of them. Buddy Garcia, recently named the Border Coordinator for SOS – that had been part of Saenz' title – is in line for the assistant secretary's job.

Flotsam & Jetsam

State Rep. Arlene Wohlgemuth, R-Burleson, will probably be in Austin next year even though she skipped reelection to run, unsuccessfully, for Congress. She's talking about lobbying her former colleagues, probably on health care issues.

• Former Texas House Speaker Pete Laney, D-Hale Center, was on the Republican spit list at this time last year (and we have no reason to think he's off it now), and the GOP tried to put a scare in him. He drew a Republican opponent, Kent Sharp, and Gov. Rick Perry's top campaign advisor, Dave Carney, signed on to help Sharp. But that was apparently the high point. Sharp's campaign never really got traction, and Laney won the race with 59 percent of the vote. Two years ago – the last time Laney was on the GOP's target budget – he beat Judy Strickland with 65 percent.

• Wohlgemuth loyalists say two of the mailers that were intended to help her beat U.S. Rep. Chet Edwards, D-Waco, landed after the voters had been spoken. Americans for Job Security, a third-party group that has played in that race and others in Texas over the last year-and-a-half, dropped two mailers at the end. One landed in some mailboxes on Election Day; the other, on the Friday after the votes were counted and the Republican had conceded and started making new plans. Dave Carney, who is headquartered in New Hampshire, is the executive director of AJS.

• One more item, while we're on this subject. There's been some speculation that Wohlgemuth might run for state Senate in two years against Sen. Kip Averitt, R-Waco. We're not saying this is connected, but it's interesting: Averitt filed legislation this week that would restore cuts made to the Children's Health Insurance Program, or CHIP, during the last legislative session. Wohlgemuth was one of the authors of those cuts and Edwards used the issue to great effect against her this year.

• Political speculators have spent the last two years yammering about who might replace House Speaker Tom Craddick if, for whatever reason, he leaves the high chair. Rep. Warren Chisum, R-Pampa, has been one of the regular names on that list. He's a Republican who gets along with House Democrats. His first legislation of the year might have pinched that gossip: He's seeking a constitutional ban – one of the strongest ever proposed – on gay marriage and civil unions. Some Democrats say that could cost him his bipartisan reputation.

• The Calendar ahead looks like this: Pre-filing of legislation is underway, in case you didn't notice the biennial headline grabbing now appearing in your local paper. Vote canvassing should be done before Thanksgiving in most counties, and the Secretary of State's office will be purging the rolls of inactive voters by the end of the month. State officeholders can't raise money while the Legislature is in session or for 30 days before it starts. That deadline is December 11, and should explain the stack of mail on the corner of your friendly neighborhood lobbyist's desk.

Political People and Their Moves

Carey Cockerell, director of Tarrant County's Juvenile Services, is moving to state government as head of the Department of Family and Protective Services. He'll replace Thomas Chapmond, who's retiring, at the top of an agency in trouble. It's the state agency set up to prevent child and elder abuse, and recent problems have put it in the headlines and in the center of attention of state officials. Gov. Rick Perry has ordered investigations and overhauls of adult and child protective service programs, and it'll be a hot topic in the legislative session that starts in January...

Robert McTeer resigned as president of the Federal Reserve Bank of Dallas after being named the sole finalist for chancellor of the Texas A&M University System and has officially taken over as Head Aggie. He replaces Howard Graves, who left last year while fighting cancer...

Mark McKinnon, who oscillates between working for Public Strategies Inc. and helping George W. Bush with television advertising and other video projects, is swinging back to the private sector gig. He's back in Austin, as PSI's vice chairman this time, but will spend some of his time in Washington... That Austin-based company is also hiring Travis Thomas from the Bush-Cheney campaign, where he was national finance director. He's worked for outgoing Commerce Secretary Don Evans – who's also coming back to Texas – and for then-Gov. Bush...

David Gonzales is leaving the Texas Pharmacy Association after four years to move to Washington, D.C., as director of state policy for the Healthcare Distribution Management Association, which represents drug wholesalers. He's been around Austin for almost two decades, starting in the Senate as an aide to former Sen. Carl Parker, D-Port Arthur, before moving to the lobby...

Hospitalized: Former U.S. Sen. and Ambassador Bob Krueger, after an apparent heart attack in a parking lot in New Braunfels.

Quotes of the Week

Mark Sanders, political accompanist to Comptroller Carole Keeton Strayhorn, quoted in the Fort Worth Star-Telegram on the next governor's race: "The 2006 race began the minute the president got his mandate. It may seem like a long way off for voters. But for candidates, now's the time for them to figure out what they want to run for and how they can raise the money to do it."

U.S. Sen. Kay Bailey Hutchison, asked by The Dallas Morning News whether she'll run: "I cannot tell you how much encouragement I am getting from people of all different areas of influence and interest. They are just saying, 'We need leadership,' and it is not just the school finance issue, it is in higher education. It is mayors and judges and members of the Legislature. I cannot tell you how many Republicans and Democrats. So I have a hard choice coming."

Outgoing U.S. Sen. John Breaux, D-Louisiana, a conservative who worked with President George W. Bush on several issues, passing along some advice for fellow Democrats in the Washington Post: "Running against the Republicans and God at the same time is almost an impossible task."

Al Cardenas, co-chairman of the Bush-Cheney reelection campaign in Florida, talking about the election strategies with The New York Times: "The only thing I know after all these years is [that] it's a blackboard. And after it's over, you erase it and start all over again."

Hunter S. Thompson, quoted in the Washington Post on the hyped youth vote: "Yeah, we rocked the vote all right. Those little bastards betrayed us again."

Roberto Suro of the Pew Hispanic Center, quoted in a Washington Post story on high numbers of Latinos voting for George W. Bush: "The bottom line to me is that with this result, it's no longer sensible to think of Hispanic voters on a national basis as a core constituency of the Democratic Party."

Defeated U.S. Rep. Charlie Stenholm, D-Abilene, answering The Dallas Morning News on a rumor that he might be offered a position in the Bush Administration: "This president did all he could do to beat me. I don't think he wants me on his team."

U.S. Rep. Tom DeLay, R-Sugar Land, who won reelection despite congressional ethics rebukes and the indictments of three political advisors, in the Houston Chronicle: "All of this stuff is frivolous and it has been proven to be frivolous. If there is anything else ongoing, it will also be found to be frivolous."


Texas Weekly: Volume 21, Issue 22, 15 November 2004. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2004 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (800) 611-4980 or email biz@ texasweekly.com. For news, email ramsey@ texasweekly.com, or call (512) 288-6598.


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