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At Home in the Senate

In the wake of a court ruling keeping state Sen. Brian Birdwell, R-Granbury, on the ballot, lawyers for his Democratic opponent and the state party are deciding whether to appeal to the Texas Supreme Court. But time is short: Under state election law, Friday, August 20, is the last day a candidate who is removed from the ballot can be replaced.

In the wake of a court ruling keeping state Sen. Brian Birdwell, R-Granbury, on the ballot, lawyers for his Democratic opponent and the state party are deciding whether to appeal to the Texas Supreme Court. But time is short: Under state election law, Friday, August 20, is the last day a candidate who is removed from the ballot can be replaced.

On Thursday, the state's 5th Court of Appeals decided Birdwell can stay on the November ballot, throwing out the Democratic challenge that he hasn't been a resident of the state long enough to satisfy constitutional requirements.

Birdwell voted in Virginia in November 2006, and the Democrats argued that the vote established him as a resident of that state. The Texas constitution requires senators to be Texas residents for the five years before they're seated. Plaintiffs asked the court to rule whether Birdwell is eligible to serve before November 2011 — five years after his Virginia vote — or whether he was always a resident of Texas under state law even though he was voting in another state. But the court denied the petition on technical grounds, saying Democratic plaintiffs hadn't properly contested the 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 office in a special election earlier this summer, was nominated for a full term by state party officials when the incumbent senator, Kip Averitt of McGregor, resigned from office. Democrats appointed John Cullar to run against him. Cullar and the Texas Democratic Party filed suit against Birdwell the next morning, asking the courts to take the Republican off the ballot.

Because of the tight timeframe, 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, the Democrats were not in a position to ask the courts to do what the Republicans wouldn't do. The Republicans, the court ruled, were never given an opportunity to refuse to fix the problem.

In addition, the judges said in their ruling, they were being asked to rely on photocopies of the Virginia voting documents instead of documents 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," the judges wrote. Instead, they ruled, "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 Republican judges 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," said party spokeswoman Kirsten Gray late Thursday afternoon. "Make no mistake: John Cullar is the only candidate whose eligibility is not in question."

Friday is the last day 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 then have to be replaced by Tuesday, August 24, unless the courts also moved the deadlines.

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. Short of running on a ballot with no Republican at all, Cullar, the Democrat, will have to hope voters will turn away a career military officer and victim of the 9/11 attack on the Pentagon because of a dispute over whether he voted in Virginia in 2006.

The Price of Justice

Texas ranks fifth nationwide in Supreme Court candidate fundraising, according to a recently released study that tracked campaign spending in state judicial races between 2000 and 2009. The report, commissioned by three legal reform groups — the Brennan Center for Justice, Justice at Stake, and the Institute on Money in State Politics — found that contributions surged nationally and by state, what it calls "a grave and growing challenge to the impartiality of our nation's courts."

The report comes as states are still struggling to define the contours of their campaign finance laws in the wake of two recent U.S. Supreme Court decisions. In Caperton v. Massey, the court held for the first time that campaign contributions threaten judicial neutrality and could serve as grounds for recusal, and in Citizens United, it paved the way for corporations to spend money in elections. In a conference call with reporters, Charles Hall, Justice at Stake’s communications director, said an "arms race between corporations, nation business groups and unions, attorneys party leaders" has exponentially increased judicial campaign spending throughout the past decade. According to the study, nationwide spending in judicial races rose to a total of $206 million between 2000 and 2009 —compared with $83 million from the previous decade. Those donors are overwhelmingly what Hall calls “super spenders” — special interest groups that have reason to pay attention to who’s on the court.

In Texas, the biggest donors during that period included three of the state's white-shoe law firms, Vinson & Elkins, Haynes and Boone, and Fulbright & Jaworski; tort reform powerhouse Texans for Lawsuit Reform; and, surprisingly, for an all-Republican court, the Texas Democratic Party. During the 2007-2008 cycle, the state Democratic Party spent an estimated $904,000 on TV ads for three candidates— Sam Houston, who challenged Dale Wainwright; Jim Jordan, who challenged Chief Justice Wallace Jefferson; and Linda Reyna Yañez, who challenged Phil Johnson. That sum was enough for the group to trump spending by all others on the list during the whole ten-year period.

In February, The Texas Tribune looked at the top contributors to judicial elections among law firms since 2000. Vinson & Elkins, Haynes and Boone, and Fulbright & Jaworski topped that list, too, but when broken down by employee contributions — that is, how much individuals working at each of the firms contribute — Baker Botts was at the top. Haynes and Boone partner Lynne Liberato, who oversees the firm's political action committee, said at that time it was "just crazy" to believe that “by giving $1,000 or $5,000 to a judge, that's going to change his or her opinion.” She said her firm contributes because of its “interest in a stable judiciary” and that it felt a responsibility to participate in the “system as it exists.”

Still, as James Sample, a law professor at Hofstra University who helped conduct the study, put it: "Nobody wants to look across the aisle in a courtroom knowing that their adversary has spent millions of dollars in support of the individual who's supposed to be impartially deciding their case."

By the Time They Get to Phoenix

A briefing this week for lawmakers who sit on the House State Affairs provided a crash course on how to craft immigration-related legislation — and not get sued by the U.S. Department of Justice.

Last month, a federal district judge blocked provisions of Arizona immigration legislation that criminalized failure to apply for or carry immigrant-registration papers; for immigrants to solicit, apply for or perform work; and that authorized warrantless arrests of people if there is probable cause to believe the person has committed a public offense.

But David Morales, the deputy first assistant to Attorney General Greg Abbott, told lawmakers that parts of the bill that survived could be generally referred to as “anti-sanctuary city” provisions, which is a popular party platform for some more conservative lawmakers, including Debbie Riddle, R-Tomball, and Leo Berman, R-Tyler, who have made their intentions to file similar legislation well-known. They’ve drawn the ire of some lawmakers who allege, however, that doing what Arizona did will produce the same result Arizona got — a suit filed by the DOJ. But Morales said the injunction ordered last month left several provisions of the Arizona bill intact, including a provision that prohibits Arizona agencies and political subdivisions from limiting enforcement of federal immigration laws, and another that requires state officials to work with federal officials with regard to undocumented immigrants. It could provide a roadmap for Texas lawmakers to follow.

The lay of the land could change before lawmakers in Texas go into session in January. Arizona’s brief to the 9th U.S. Circuit Court of Appeals is due soon and oral arguments are expected to begin in November.

Higher (Priced) Ed

Getting to college might get more difficult in the next biennium. Amid serious budget concerns, the state’s ability to help qualified students afford higher education may be on the chopping block.

State agencies have been asked to find ways to cut 10 percent from their current budgets, most of which were already reduced by five percent this year in anticipation of a budget shortfall estimated to be as high as $18 million. That could be painful. “The cuts will be pretty draconian for financial aid,” Arturo Alonzo, deputy commissioner for business and finance at the Texas Higher Education Coordinating Board, told lawmakers at a joint session of the House and Senate Higher Ed Committees.

Asked by Senate Higher Ed Chairman Judith Zaffirini, D-Laredo, whether it would be possible for the THECB to meet its 10 percent goal without cutting back on financial aid. Nope, Alonzo said: “It’s impossible.” Of particular concern is the fate of TEXAS Grants, a prized program among legislators that serves students with significant financial need. According to the THECB's proposed budget, ten percent cuts would mean that TEXAS Grants, the supply of which already falls well short of demand, would be available to 23,745 fewer students. The state currently provides 113,228.

Rep. Mike Villarreal, D-San Antonio, points to the potential loss of thousands of TEXAS Grants as a reason to look at ways of balancing the budget beyond cuts. "We must make sure that when we 'tighten our belt,' we don't actually tighten the belt of families struggling to put their kids through college or put a chokehold on our economic growth," he said.

As the state attempts to increase participation and success in higher education as funding falls, such concerns will probably become a theme during next year's legislative session. “We’ve got to get through a short-term trough without losing our momentum,” says House Higher Ed Chairman Dan Branch, R-Dallas. “That’s going to be the challenge of the session.”

The Week in the Rearview Mirror

Still unclear what legislators will be facing come January, state officials announced that collections of sales and business franchise taxes are well behind projections. Legislative budgeteers expect a shortfall — projected revenue less the costs of current state services — of up to $18 billion in the next budget. The business tax was originally expected to bring in almost $6 billion, but is now only expected to bring in $3.4 billion. The big revenue source, sales tax, had been in steady decline until April of this year, when receipts finally began to grow again.

The whole picture won’t be clear until Comptroller Susan Combs makes her new revenue estimate in January, but she 'fessed up a little bit in filings required for the state's cash-flow borrowing on Wall Street. Tidbits: The state's running a $1.3 billion deficit in the current budget; Texas' cash-flow needs have worsened, in the amount of $3 billion, over the last year; and the state will need to temporarily borrow money from other funds, possibly including the Rainy Day Fund, to cover that $3 billion difference.

• Texas school superintendents have their peepers on money in the federal jobs bill passed last week, though it had specific restrictions on funds for the state of Texas. They're hoping Gov. Rick Perry will go along with the restrictions imposed by Congress so their districts can claim their share of the booty. Districts are facing tough choices on how to allocate their money this fall, and the millions of dollars of federal funds could go a long way to alleviate layoffs or program cuts. U.S. Rep. Lloyd Doggett, D-Austin, stuck a provision in the jobs bill designed to require the state to spend the federal money on top of what it would already be spending, instead of replacing state money with federal money, as lawmakers did with federal stimulus money in the current budget.

• El Paso could be a big loser in redistricting next year based on preliminary census numbers. The early count shows the city growing more slowly than other urban areas, making it a candidate for the loss of a seat in the Legislature if the official population in December matches the projected 754,000. State and city officials are concerned that’s due to an undercount of as many as 100,000 people.

• Anchor babies brought national attention to a couple of Texas pols — state Rep. Debbie Riddle, R-Tomball, and U.S. Rep. Louie Gohmert, R-Tyler, went on CNN's Anderson Cooper 360 on different nights to broadcast their notion that anchor babies are the hottest thing in immigration scams. Each citing unnamed FBI sources, Riddle and Gohmert attempted to make the case that not only are illegal immigrants profiting from giving birth to babies who automatically become U.S. citizens, but also that there is a plot afoot to raise these babies abroad, indoctrinate them, and send them back to the U.S. as terrorists when they are grown.

• U.S. Sen. John Cornyn of Texas thinks the debate over placement of a mosque near Ground Zero qualifies as an election issue. Speaking on NBC’s Meet the Press, Cornyn expressed his belief that candidates’ opinions on the issue would affect the outcomes in their races. His statement followed remarks from the president, who defended the right of Muslims "to build a place of worship and a community center on private property in Lower Manhattan, in accordance with local laws and ordinances." Cornyn might be right. Democrats are running from the president. For instance, U.S. Rep. Chet Edwards, D-Waco, who's in a tough reelection fight, zigged when Obama zagged, telling supporters that the building idea is a bad one that he doesn't support.

• Self-style taxpayer watchdog Joe Driver, R-Garland, admitted to the Associated Press he had routinely double-billed many of his travel expenses, using campaign funds for travel and then billing the state for the same expenses. The longtime member of the House, who sits on the Appropriations Committee, told the news service that he had consulted the Ethics Committee years ago and received a thumbs-up on the practice. But he couldn't produce any evidence of that advice and says he'll pay the money back.

• Former U.S. House Majority Leader Tom DeLay, R-Sugar Land, is no longer under federal investigation for ties to a disgraced lobbyist, but is still facing state charges related to campaign finance. His attorneys announced that the Department of Justice investigation into DeLay’s ties with Jack Abramoff is being closed — with no charges filed. In Texas, though, he was indicted on charges of conspiracy and money laundering in 2005 — prosecutors contend he laundered corporate money through the national GOP so the money could be used in state campaign. Procedural hearings in the state case are set for next week.

Political People and Their Moves

Brent Leisure is the new director of Texas State Parks at Texas Parks & Wildlife. He's been at the agency for 26 years and takes over from Walt Dabney, who's retiring at the end of the month after 11 years in the post.

Natalie Foerster-Gonzalez moves from the governor's budget and planning office to be clerk and general counsel to the House State Affairs Committee. She's replacing Lesley French, who's leaving the Pink Building to start a law practice.

Joe Frank Garza, former district attorney in Jim Wells County, was indicted on charges he misused more than $200,000 in asset forfeiture funds over seven years starting in 2002, paying the money to himself and others in the DA's office.

Scratch Lindy Suze, the Libertarian running for the House in HD-96. That withdrawal clears the field in what is now a two-person rematch between Rep. Chris Turner, D-Burleson, and former Rep. Bill Zedler, R-Arlington.

Gov. Rick Perry appointed:

Sherill Dean of Houston as judge of the 309th District Court in Harris County. She has her own law firm, working mainly in family law.

Michael Sinha of Hurst to the 360th District Court in Tarrant County, the post left open when Debra Lehrmann joined the Texas Supreme Court.

Laura Ryan-Heizer of Cypress to the Texas Department of Motor Vehicles Board. She's an exec with GSFS Group, an automobile finance firm based in Houston.

Ernest Aliseda of McAllen to the Texas Military Preparedness Commission. He's a former state district judge who's now managing attorney of Loya Insurance and a municipal judge for the City of McAllen.

Quotes of the Week

Rep. Joe Driver, R-Garland, on charges that he's been "double dipping" on campaign expenses, billing them both to his campaign and to the state, quoted by the Associated Press: "Now you're scaring the heck out of me. It pretty well screws my week."'

Immigration attorney Margaret Stock, on the repeal of the 14th Amendment, quoted in the Texas Tribune: “The debate is always about the theoretical … Whenever you talk about the practical aspects of it, there's silence. Because anybody who understands how citizenship is determined in the absence of the 14th Amendment quickly realizes that we have a huge mess on our hands. And it will cost billions of dollars if we change the amendment's current interpretation."

Denton County Judge Mary Horn, about lowering the standards for Texas jails in order to stretch her county's budget: "I've always stated that when our prisoners start living like our soldiers, I’ll start feeling sorry for them."

Rep. Mark Strama, D-Austin, to News 8 Austin on the only way to handle the upcoming budget crisis: "Given what we're being told for the next projections for the next 29 to 30 months, it's almost unimaginable not making more cuts."

V. Lane Rawlins, the interim president of the University of North Texas, quoted by the Texas Tribune on preparing for his first appearance before the Texas Legislature: “I’ve been doing this in various states for about 20 years, and every time I’ve had the chance to speak with the Legislature, my main point is that we need more money.”

At a legislative hearing, the first question from Rep. Dan Branch, R-Dallas, to a panel of the presidents of the seven emerging research universities competing to be the next Tier One school: "Is everyone getting along?"

Candace Taylor, a former supporter of the late Republican candidate Tom Zachry, unsatisfied with his replacement, sued (and lost) for the right to run as a Democrat. Her lawyer, Stephen Drinnon, told the Fort Worth Star-Telegram: "The Texas election code, quite frankly, just doesn't address such a situation as this."

Mexican Ambassador to the United States Arturo Sarukhan, on his keynote speech at a border security conference at the University of Texas at El Paso: "Giving is a speech is a lot like a Texas Longhorn. One point here, one point here and a lot of bull in the middle."

U.S. Customs and Border Protection Commissioner Alan Bersin, on the current state of U.S.-Mexico relations during the current immigration debate, to the Texas Tribune: "The story of the United States is the story of immigrants, of people taking risks and coming to improve the lives of their families. What’s unacceptable is that they cross in a way that violates our laws and remain here in a manner that violates our laws."

Former U.S. Rep. Tom DeLay, R-Sugar Land, in a conference call with reporters after the Justice Department dropped its investigation of his ties to disgraced lobbyist Jack Abramoff, quoted in the Houston Chronicle: “I know this is the price of leadership, but frankly it doesn't have to happen this way. I hope people will look at my case and decide the criminalization of politics and the politics of personal destruction is not beneficial to our country or our system.”

Juror Steve Wlodek, on the complexities of the case against former Illinois Gov. Rod Blagojevich trial, in The New York Times: "It was like, 'Here's a manual, go fly the space shuttle.'"

 

Contributors include Julian Aguilar, Reeve Hamilton, Ceryta Holm, and Morgan Smith

Texas Weekly: Volume 27, Issue 31, 23 August 2010. Ross Ramsey, Editor. Copyright 2010 by The Texas Tribune. 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 (512) 716-8600 or email biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 716-8611.

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