Kip Averitt does not want to return to the Texas Senate — but depending on how tonight’s special-election runoff to replace him goes, the recently retired Republican Waco state senator says “it’s a remote chance.”
It’s not David Sibley, the George W. Bush-backed former state senator, who has Averitt worried. It’s his challenger, Brian Birdwell, a fellow Republican and a 9/11 survivor whose detractors have alleged doesn’t meet legal residency requirements to represent Senate District 22 in the upper chamber of the Legislature.
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 to the judge.
“Nothing against Col. Birdwell and all, but it looks to me like it’s pretty obvious that he’s not eligible to serve,” said Averitt, who resigned due to health problems.
Tuesday’s election will only determine who gets to represent SD-22 until January, the remainder of Averitt's current term. The state senator in the next legislative session will be determined by the general election in November.
After winning the March primary without campaigning, Averitt is currently the Republican nominee on the November ballot, and there's no Democratic opposition. Should he pull his name off the ballot, 10 local party chairs will choose his replacement. At that time, the Democrats would also be permitted to choose a candidate.
On the Republican side, the party chairs would presumably pick the winner of Tuesday’s special election. As Averitt said, “I hope they are paying attention to the people.”
However, should Birdwell turn out to be the people's choice, Averitt fears that the Democrats could challenge his eligibility and win.
“There are circumstances under which that could result in Republicans not having a candidate on the November ballot, and that is problematic,” he said. “I’m very concerned about that.”
Since Averitt won’t have the luxury of knowing his replacement until he has withdrawn, it’s possible that he may feel obligated to remain on the ballot straight through election day.
Averitt hopes it doesn't come to that. “I really don’t want to go back,” he said. “I’m enjoying my life as it is right now. I’m feeling very good, and my health is back. I’m doing very well.”