In the wake of a court ruling keeping state Sen. Brian Birdwell, R-Granbury, on the ballot, lawyers for his Democratic opponent and the Texas Democratic Party are deciding whether to appeal to the Texas Supreme Court. But time is short: Under state election law, today is the last day a candidate who is removed can be replaced.
The appeal would seek to overturn Thursday's decision by the state's 5th Court of Appeals that Birdwell can stay on the November ballot, throwing out the Democratic challenge that he hasn't been a resident of Texas long enough to satisfy constitutional requirements.
Birdwell voted in Virginia in November 2006 — a fact, the Democrats argued, that established him as a resident of that state. Because the Texas Constitution requires senators to be Texas residents for the five years before they're seated, they asked the court to rule whether Birdwell is eligible to serve before November 2011 or whether he was always a resident of Texas under state law even though he was voting elsewhere. But the court denied the petition on technical grounds, saying the plaintiffs hadn't properly contested his residency and failed to submit authenticated records to the court as evidence. It never addressed whether Birdwell is, in fact, a legal resident for political purposes; it ruled instead that the court had "no authority" to make the call.
Birdwell, who won the Senate District 22 seat in a special election earlier this summer, was nominated for a full term by state party officials when the incumbent senator, Kip Averitt, R-Waco, resigned from office. Democrats appointed attorney John Cullar, the chair of the McLennan County Democratic Party, to run against him. Cullar and the Texas Democratic Party filed suit against Birdwell the next morning, asking the courts to take him off the ballot.
Because of the tight time frame, the Democrats went directly to the appellate courts with their lawsuit. A three-judge panel from the Dallas court ruled against them and said it won't consider rehearing the case because of those pending election deadlines.
"We find no applicable section of the election code that empowers us to simply declare Birdwell ineligible and order respondents to do whatever is necessary to take Birdwell off the ballot," the judges ruled. They said the Democrats failed to go to the Republicans in the first place to demand Birdwell be taken off the ballot, and that because they hadn't tried that remedy and been denied, they were not in a position to ask the courts to do what the Republicans wouldn't do. The Republicans, the judges ruled, were never given an opportunity to refuse to fix the problem.
In addition, the judges said were being asked to rely on photocopies of the Virginia voting documents instead of records that were properly vetted. "None of the documents relied upon by relators contains any verification as to authenticity," they wrote.
The judges never actually got to the question of whether Birdwell has been a resident of Texas long enough to serve in the Senate. "Relators seek a determination from this Court as to whether Birdwell is, in fact, ineligible as a candidate. We have no authority to make such a factual determination," they wrote. "We conclude the 'records' relied upon by relators, i.e., the documents attached to their petition and in the condition described above, do not conclusively establish Birdwell is an ineligible candidate for the Texas Senate."
That met with the reactions you might expect from the partisans. Birdwell and the Republicans were exultant and said the ruling proves what they've contended all along. The Democrats blamed the result on a partisan judicial panel — all three judges are Republicans — and immediately began huddling over whether to appeal to the Texas Supreme Court, which is made up of nine Republican justices.
“I’m thrilled with today’s win, and pleased that the court clearly saw through this desperate attempt by the Democrats to thwart the will of the voters and win a senate seat through judicial activism," Birdwell said in a news release. "Two things should be obvious to everyone by now. First, I live here and am legally qualified to represent the good people of Senate District 22. And second, a majority of voters want me to represent them."
The Democrats can appeal, but they don't have much time to work with. "We’re reviewing the options with our attorneys," party spokeswoman Kirsten Gray said late Thursday afternoon. "Make no mistake: John Cullar is the only candidate whose eligibility is not in question."
Friday is the last day that a candidate who's been removed from the ballot — for reasons ranging from ineligibility to second thoughts to death — can be replaced with another candidate for the November elections. If the state's high court were to decide to reverse Thursday's ruling and remove Birdwell, today is the latest that he could come off the ballot and be replaced by another Republican. A candidate removed today would have to be replaced by Tuesday, August 24, unless the courts moved that deadline.
Here's another twist: A candidate removed from the ballot after today can't be replaced on the ballot without a court order. That offers an unlikely sliver of hope to Democrats who'd like to knock Birdwell off the ballot and to leave the GOP without a way to replace him.
The politics of the district overwhelmingly favor the GOP. Republican John McCain clobbered Democrat Barack Obama in SD-22 in 2008, 68 percent to 31 percent; statewide, McCain won by a slimmer margin of 55 percent to 44 percent.
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- Birdwell Ruling from 5th Court of Appeals (1.4 MB) DOWNLOAD