brimer loses another appeal

State Sen. Kim Brimer, R-Ft. Worth, lost yet another appeal today against his Democratic opponent, former Ft. Worth City Council member Wendy Davis.

The 5th Court of Appeals in Dallas has rejected the lawsuit by state Sen. Kim Brimer, R-Fort Worth, who was appealing a lower court ruling that former Fort Worth City Councilwoman Wendy Davis is eligible to challenge him on the November ballot.

A panel of three justices hinted during oral arguments last week that they were reluctant to overturn the ruling by state District Judge Tom Lowe in Fort Worth, who ruled in July that Davis is an eligible candidate. Brimer appealed Lowe's ruling.

But the appeals court in Dallas today upheld Lowe's ruling, saying in its opinion that "Brimer's only legally recognized interest in pursuing this appeal is to avoid being opposed by an ineligible candidate."

"Even if Davis is ineligible to hold office -- an issue we do not reach in this appeal -- her name will be included on the November 4, 2008 general election ballot in opposition to Brimer. We cannot, at this point, change that outcome and, therefore, this appeal is moot," the justices wrote.

Here's a quick history of the case for those that haven't been following along:

May 2007: Wendy Davis is re-elected to the Ft. Worth City Council.
August 2007: Davis officially declares her candidacy for the Democratic nomination in Texas State Senate District 10, which covers about half of Tarrant County and is represented by Republican Kim Brimer. She also resigns from her post on the city council, though local law required her to officially keep her seat until her successor is sworn in.
November 2007: Election is held to choose Davis' successor on the city council. It goes to a runoff.
December 2007: Joel Burns wins the runoff.
Early January 2008: Three Ft. Worth firefighters ask Tarrant County Democratic Party Chairman Art Brender to disqualify Davis from running for state senate because she is technically still on the council and state law prohibits sitting council members to run for the state legislature. The same day, Burns is sworn in on the council. The Secretary of State's office would not issue a ruling on Davis' eligibility, saying that Brender is the filing authority in the primary election. Brener issued a statement declaring Davis eligible to run.
Mid-January 2008: The Ft. Worth firefighters issued a court challenge that was dismissed by the Texas Supreme Court. The high court recommended the firefighters take their issue up with the regional appellate court.
Late January 2008: The firefighters lose in appeals court. The court rules that only a political opponent, such as Brimer, has the standing to bring such an eligibility suit.
March 2008: Uncontested in the Democratic primary, Davis officially becomes the nominee.
Early July 2008: Brimer himself challenges Davis' eligibility by filing a suit to have her removed from the November ballot.
Late July 2008: State District Court Judge Tom Lowe rules in favor of Davis, determining that she is eligible to remain on the ballot. Brimer appeals.
August 2008: The deadline to remove a candidate from the ballot passes.
September 2008: A Ft. Worth appellate judge asks that the case be moved to Dallas. The Texas Supreme Court moves the case to the 5th Court of Appeals there.
October 2008: The Dallas appeals court rules in favor of Davis, rejecting Brimer's suit.

Davis welcomed the news of the win for her campaign: "I am very pleased with the Court's decision today, and I look forward to continuing my conversation with Tarrant County families about the issues they are facing. What I'm offering voters is a representative who will bring real change to the way Austin does business."

Contribute to the Wendy Davis campaign today. Every little bit counts, and she could certainly use your help in her campaign against yet another Republican up to the same old dirty tricks. Kim Brimer has got to go, and with your help and your vote Davis will replace him.

Chairman Brender Concludes Davis Eligible for Senate Dist. 10 Run

Art Brender, Chairman of the Tarrant County Democratic Party, has issued a statement clarifying the eligibility of Wendy Davis' candidacy for State Senate District 10.

At about 2:30 p.m., on December 31, 2007, I received a challenge from three Fort Worth Firefighters, pursuant to the Texas Election Code, claiming that Wendy Davis who had filed as a candidate in the 2008 Democratic Primary for State Senate District 10 was ineligible for the office pursuant to Art. III, § 19, of the Texas Constitution, which provides as follows:

No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.

This provision has resulted in a landmark decision here, in Tarrant County, that resulted in former State Senator and State Representative Doyle Willis being excluded from seeking election to this same Senate seat in 1964, In Willis v. Potts, the Texas Supreme Court strictly construed this section of the Texas Constitution and excluded Doyle Willis as a candidate despite his resigning from the Fort Worth City Council. In 1982, Woodie Woods, Mayor of Fort Worth, was excluding from the ballot in his attempt to run as Republican Senator in Senate District 12 by this same provision. In 1992, a decision by the Texas Supreme Court, Wentworth v. Myer, 339 S.W.2d 766 (Tex. 1992), modified the ruling in Willis v. Potts. Wentworth involved another challenge to a Texas Senate seat where the nominee, Jeff Wentworth, had resigned his position on the Board of Regents, but had not sought or been subject to the holdover provisions contained in Art. XVII, § 17, of the Texas Constitution. This provision provides that an office holder who resigns his or her office continues to serve until a successor has qualified to hold the office.

On New Year's Eve, three firefighters who vote in the Democratic primaries, made a citizen's challenge, as permitted by the Texas Election Code, to Wendy Davis as a Democratic nominee to the State Senate District 10. The firefighters claimed that Wendy Davis had not resigned as that term is defined under the Texas Constitution, since she had continued to serve on the Fort Worth City Council and received a weekly salary after she had filed as a candidate for the Texas State Senate. The effect of remaining as a holdover candidate and continuing to serve in that capacity was specifically exempted from the Supreme Court decision in the Wentworth case. I have thoroughly researched this matter and consulted, as I am required to do, with the Secretary of State's Office, for an opinion concerning whether or not any Court since 1992 has decided this issue. I am advised by the Secretary of State, as well as by my own research, that this issue has not been addressed by the Texas appellate courts since the Wentworth decision. Since decisions to determine the eligibility of the candidate must be strictly construed AGAINST INELIGIBILITY, I have followed the law strictly and to the letter and have declared this date that Wendy Davis is eligible to run as a candidate in the 2008 Democratic Primary for the position of State Senate District 10. A copy of my decision follows this announcement.

A number of inquiries have been posed by Democrats since this challenge was presented and discussed in the news media. Under the Texas Election Code, if a candidate is declared ineligible to serve in an office by order of a court prior to the 74th day before the General Election, the Executive Committee of the Party whose candidate is disqualified may replace that candidate.

At this time, there has been no lawsuit filed to determine this issue. I am hopeful that none will be. In many instances over the past twelve years I have served as your County Chair, I have represented the Party's and its candidates in challenging the eligibility of Republican candidates, such as Representative Bill Zedler. In this instance, however, I am the official actually making the decision, under the Election Code. Thus, I will not serve as an attorney in the event of any legal challenge to my decision to declare Wendy Davis an eligible candidate. That duty would be undertaken by the Secretary of State's Office and/or the Texas Attorney General's Office. My connection with this matter has officially ended with this decision. Any defense of my decision will be undertaken by the Texas Attorney General or the Secretary of State......

No Ruling on Davis' Eligibility in Senate District 10 Race

The Fort Worth Star Telegram is reporting that Wendy Davis' eligibility in the Senate District 10 race is still murky.

The secretary of state's office said today that it will not make a ruling on whether Democrat Wendy Davis is ineligible to run for state Senate, placing the issue in the hands of Tarrant County Democratic Chairman Art Brender.

"Our office has talked to Mr. Brender and let him know that since he is the filing authority for this election, that ultimately it's his decision to make," said Scott Haywood, a spokesman for the office.....

Haywood said state law appears "to be a bit unclear" on whether an elected official is eligible to run for higher office upon resignation or must wait until a successor is sworn in.

There is a bit of risk in this strategy for the Republicans. As Steve Smith at Pegasus News remarked, "never do your opponent a small wound." If Davis ends up unable to run and the Democrats field no one else, the GOP has protected a vulnerable Republican in a crucial race. But if Davis' candidacy goes forward, the Republicans will have been too clever by half.

Davis isn't facing disqualification over incompetence, corruption or morality. She was required by law to serve in some statutory role until Joel Burns was officially sworn in. If she's allowed to run, there will be references to the eligibility question for the rest of the campaign. And what voters will remember is that Republicans tried to trip Davis up over a technicality.

The party diehards might admire this, but the average voter isn't that strongly affiliated with a political party. They will rightfully perceive this as an attempt to deny them a choice in this election. One of Brimer's vulnerabilities as a candidate is his low voter recognition. It's hard to imagine that having this issue define him throughout the campaign helps his image.

Wendy Davis' Eligibility for Senate District 10 Challenged

According to the Fort Worth Star Telegram, a challenge has been made regarding Wendy Davis' eligibility to file for Texas State Senate District 10 against Kim Brimer.

Three Fort Worth firefighters delivered a letter Monday afternoon to Art Brender, Tarrant County Democratic Party chairman, calling on the party to disqualify Davis from running because she is still a Fort Worth City Council member.

State law forbids sitting council members from running for the Legislature. Although Davis resigned in August, local law requires her to keep her seat until a successor is sworn in. Joel Burns, who won the special election runoff Dec. 18 to replace Davis, is scheduled to be sworn in Jan. 8.

The letter left Brender scrambling for legal clarification and appealing for an eleventh hour backup candidate "in an abundance of caution."

Steve at Caravan of Dreams has some speculation as to who could be behind the challenge.

According to the Startlegram, the letter was sent by Cullen Cox, Rickey Turner and Javier Cerda, three firefighters who support the Democratic Party, according to Rob Gibson, second vice president of the Fort Worth Professional Firefighters Association. If these guys truly support the Democratic Party, why would they derail a candidate who looked to have an excellent opportunity to unseat a very vulnerable and disliked Republican?

As one local Democrat told me this morning, the dots are pretty easy to connect. The political consultant for the Fort Worth Firefighters is Republican political consultant Bryan Eppstein. The political consultant for Kim Brimer is -- you guessed it -- Republican political consultant Bryan Eppstein.

If Eppstein's name is familiar, it's because his fingerprints are all over the North Texas political landscape. He made news last year when J.D. Granger, son of U. S. Rep Kay Granger (R- Fort Worth- a client of Eppstein's), hired him for a lucrative consulting gig with the Tarrant Regional Water District board. The appointment was made without an RFP.

No word on who might replace Davis if her filing is declared invalid.

UPDATE: The FWST is reporting this evening that Fort Worth City Councilman Joel Burns was sworn in today, one week earlier than scheduled.

Burns said he was told by Fort Worth city attorneys that because the runoff election results were canvassed last Thursday, making them official, he could be sworn in any time.

John Hill, a retired appellate judge, administered the oath of office Tuesday at Burns' home in front of a small group of family and friends, Burns said.

There is still some question as to whether this paves the way for Davis to run. Davis filed for office in early December.

Brender said he also notified the Texas Secretary of State's Office regarding challenge.

"It's an issue, unfortunately, that the courts have not ruled on," he said. "The actual issue regarding an officeholder resigning and staying on as a holdover candidate has not been decided by the courts. Although I don't think there would have been any issue had she filed tomorrow and Joel had been sworn in today."

why we still love wendy davis

Wendy Davis may have some skeletons in her closet, and we aren't just talking about the readers of Fort Worth Weekly voting her "Most Likely to Sell Grandma to the Highest Bidder" back in 2002.

After resigning her position on the Fort Worth City Council and declaring her intentions to run for SD-10 against unpopular and unethical Republican Kim Brimer, eager politicos have started to examine her past political contributions. Apparently, she even gave money to George W. Bush in 1999.

Caravan of Dreams notes that contributions to Republicans may help her with a suburban audience, since instead of representing downtown Fort Worth, her district would encompass Grapevine and Southlake. She looks like less of a partisan than the other name being tossed around: Art Brender. Brender is the current chairman of the Tarrant County Democratic Party. But will her nonpartisan past hurt her reputation with the Democratic base?

Brender has already taken some shots at Davis. After announcing that she voted in the 2006 Democratic primary, he reportedly said "I believe like Harry Truman if you run a Republican against a Republican, the Republicans will win every time."

There are two types of people that can't understand why a Democrat would vote in the Republican primary: people that live in blue states and Democratic county chairs.

In the reddest of Republican suburbs in North Texas, some Democrats have been tempted to vote in the Republican primary in order to have a say in who will actually represent them. In many areas, there weren't even Democratic candidates on the ballot. One prime example is in Flower Mound, where Tan Parker and Anne Lakusta faced off in a run-off election for Texas House District 63. The race was irresistible to even some hardcore Democrats that couldn't stand to be represented by the Bush-loving Parker. That race was decided in the primary, because no Democrat stepped up to run for the seat. (Unfortunately, Parker went on to win the election, anyway.)

The truth is that it shouldn't matter. Davis is, from most accounts, a tried and true Democrat. As a councilmember, she remained nonpartisan, which is expected. But her donations, while some need an explanation, show that she supports Democrats. She has recently given campaign cash to Hillary Clinton. She even donated money to Art Brender himself!

One commenter on Burnt Orange Report described Davis this way:

Fair taxes, economic development in the inner city, no school vouchers, pro-choice, solid on GLBT issues, inclusive of minorities, against cutting off access to the courts via tort reform, an advocate for clean air and public transportation, sounds like Wendy Davis is a fine Democrat.

Obviously, Davis' record speaks for itself.

Also consider these glowing endorsements from her fellow council members, via FWST:

Council members praised Davis' service on the council, emphasizing her work on economic development issues.

"She has been at the forefront of many economic deals that have benefited Fort Worth," Councilman Sal Espino said. "And she brings to public life that unique perspective of someone who has worked hard to get where she is at."

Mayor Mike Moncrief said Davis fights for what she believes.

"You have done a masterful job," he said. "You are not afraid to shed a tear every now and then, and you are concerned for the least of us in the city as well as the most."

Councilwoman Kathleen Hicks said Davis has worked hard on issues throughout the city.

"Not only the work you've done in your district, but the work you've done in southeast Fort Worth has challenged me," Hicks said.

Wendy Davis is our best shot at taking back SD-10 from a fund-funneling Republican that has got to go. And if calling her a "DINO" is the best that her primary opposition can do, she has a pretty good shot.

Wendy Davis Officially Declares for SD 10

The FWST reports that Wendy Davis has resigned her position as Fort Worth councilwoman and plans to run for Texas State Senate District 10.

City Councilwoman Wendy Davis resigned Thursday night, announcing that she plans to challenge veteran state lawmaker Kim Brimer for his state Senate seat in 2008.

Davis has represented District 9 since 1999.

She is chief executive of the Fort Worth division of Republic Title.

Davis will run as a Democrat. Brimer is a Republican.

In a tearful speech, Davis told her council colleagues that she feels compelled to fight special interests in Austin.

"Texas is ready for change," she said. "The partnership in Austin is badly broken."

Davis will join Art Brender, another possible challenger to the seat. And at least one of them already has a fan.

Capitol Annex , Burnt Orange Report, Job's Anger and Caravan of Dreams have more. Also, Lone Star Project deconstructs Brimer's response to their recent poll.

Art Brender Weighing SD 10 Candidacy

From bloggers blank and Todd Hill at BOR, the Texas State Senate District 10 will likely have a challenger to oppose Republican incumbent Kim Brimer.

Two possible names are being suggested as potential Democratic challengers. The first is Art Brender, currently chairman of the Tarrant County Democratic Party. A second person rumored to be interested is Wendy Davis, a Fort Worth City Councilmember in District 9.

This report from the FWST confirms Brender's interest in the seat, but leaves Wendy Davis' intentions up in the air.

Word has it that a couple of local Democrats are considering challenging Republican state Sen. Kim Brimer for the District 10 Senate seat next year.

Tarrant County Democratic Party Chairman Art Brender, busy gearing up a slate of local candidates for next year's elections, said he is considering making that bid himself.

"I'm looking at it real hard just in light of the changing demographics in that Senate district," said Brender, a Fort Worth lawyer.

And speculation is swirling that Fort Worth City Councilwoman Wendy Davis may be debating the same thing. She declined to comment.

Brimer's district covers about half of Tarrant County, including Fort Worth, Benbrook, Mansfield and part of Arlington. Brimer won the seat in 2002 with 59 percent of the vote.

Tarrant County Democrats Interviewed on Ballot Decision

Shaun Rabb, of Fox News KDFW-TV, interviewed Tarrant County Democratic Party Chair Art Brender and State Representative District 95 Marc Veasey on the recent court decision regarding mail-in ballots. Federal Judge T. John Ward ordered Attorney General Greg Abbott to stop enforcing a provision of the election code regarding mail-in ballots. The ruling allows workers assisting the elderly or disabled to help deliver those ballots to the post office.

To view the video, click here. The following is a partial transcript:

Brender: It's a victory for every voter who needs to vote absentee - people that are elderly, that can't get out, that are bedridden, that are disabled - because for many, many years, up until this law went into effect a couple of years ago, anybody could help them.....

Veasey: It basically suppressed that partciular tradition in the coummunity of neighbor watching out for neighbor. And that's what was so really significant about this ruling.....

Rabb: In an email statement, Texas Solicitor General Ted Cruz writes: "The Office of the Attorney General will file an immediate appeal...the district court's decision is contrary to binding precedent from the U.S. Supreme Court, and we are highly confident upon appeal." Brender hopes the federal judge's ruling stands.

Brender: The Attorney General in the comments to Judge Ward said "Well, we would never prosecute anyone for just mailing somebody's ballot, handling it and putting it in the mailbox, that sort of thing." So that admission, I think, is an indication the law is overly broad.

Although a ruling from the Fifth Circuit Court of Appeals will have enormous impact in the long term, the influence on this year's elections is largely decided. An article in the Fort Worth Star-Telegram reveals that mail-in ballots for Tarrant County were down compared with 2002.

Mail-in voting for the November general election has dropped 62 percent this year in Tarrant County, although early voting in person is up 8 percent in the county and across the state.

With early voting ending today, Tarrant County Elections Administrator Steve Raborn said he could not explain the sharp drop in mail-in ballots since the comparable election in 2002, but said mail-in ballot applications generated by the major political parties appear to be down significantly this year.

Statewide, mail-in ballots have dropped 26 percent, according to the secretary of state's Web site.

All of the thirteen people Greg Abbott has prosecuted for voter fraud under the 2003 law have been Democrats, and all but one has been Hispanic or African-American.

Amber Moon, spokeswoman for the Texas Democratic Party, predicted that the post-election analysis of the mail-in ballots will show that the decrease is mostly from Democratic strongholds.

Vote by mail in our communities have suffered more because our people have the attorney general's task force following them," Moon said.

A direct comparison to the 2002 election is difficult, with both sides agreeing that strategy may have influenced results. And it's difficult to determine how many of those choosing to forgo mail-in ballots chose to vote in person. However, in the end, it appears Republicans may have accomplished their goal - suppression of minority votes.

Democrats Challenge Voting Machine Security

The controversy over the security of electronic voting machines is once again in the spotlight as the Tarrant County Democratic Party prepares to file a federal lawsuit over the right of voters to have a verifiable paper trail in the coming fall elections. As the Fort Worth Star-Telegram reports:

Local party Chairman Art Brender asked Secretary of State Roger Williams several weeks ago to overrule a decision by his deputy and allow Tarrant County election officials to provide a backup paper system to its new electronic voting machines.

"I think it is essential that we provide the people of Tarrant County assurance that their vote will be counted," Brender said.

Brender said that if he does not have a response by early next week -- or if his request is rejected -- he will file a lawsuit in federal court on behalf of one or more local voters alleging that the secretary of state's office is in violation of the Help America Vote Act of 2002, which he said requires that a voting system produce a "permanent paper record."

Brender said he would also seek to have the Texas voting system declared unconstitutional as a violation of the equal protection clause. In the case stemming from the 2000 presidential election, the U.S. Supreme Court found it was unconstitutional for different jurisdictions to use different methods to recount votes.

Brender said some Texas counties use paper ballots while others use electronic machines without a verifiable paper trail, making a standardized recount impossible statewide.

Residents have cause to be concerned after a preliminary count in the March primary overstated votes by 100,000 (see previous post Tarrant County: One of the Worst Places to Vote in America.)

Tarrant County: one of the worst places to vote in America

A recent Mother Jones article lists the eleven worst places to vote in America. Guess which Texas county is number two on the list? Tarrant County! (Travis County also made number six, and Waller County number nine, tying Texas with Ohio as the worst state in which to vote.)

All of this was brought to our attention by Roger Williams, Texas Secretary of State. In his FWST letter to the editor, Mr. Williams makes the following argument:

Contrary to the perception conveyed in the Mother Jones article, technology was not responsible for the errors in the Tarrant County primary elections -- indeed, it was crucial in identifying them. As the article mentions, "Initial results in Fort Worth, Texas, showed 150,000 votes being tabulated in a county where only about 50,000 people voted." The error was caught and was corrected the next day. Tarrant County officials have been working tirelessly to ensure that a similar human error does not occur in November.

The Help America Vote Act (HAVA) created a great deal of change in elections in Texas and specifically for the counties conducting them. The lesson learned in Texas is that new systems require new training. But to suggest that Texas, or the nation, should abandon electronic voting because of minor human errors defies common sense.

Mr. Williams' defense raises more questions than it answers. First, only in Halliburton's accounting department would overstating the numbers by a factor of 300% be considered a "minor" error. And if the percentage of the error had been less, would this have simply made the error less likely to be noticed? Should we be comforted by the implication in his argument that the human error occurred because of lack of training on the new system, rather than something more malicious?

The Tarrant County Democratic Party has weighed in on behalf of voters to ensure fair elections this fall.

The Tarrant County Democratic Chair, Art Brender, announced that the Tarrant County Democratic Party has asked the Secretary of State, Roger Williams, to overrule the decision by a Deputy Secretary of State which refused to approve Voter Verifiable Paper Audit system that was to be retrofit into the Hart InterCivic Voting System 6.1. That system, without the paper audit trail was used by Tarrant County voters in the Republican and Democratic Primaries this past spring. The Voter Verifiable Paper Audit ("VVPA") consists of a continuous paper roll contained in a sealed plastic container which fits into the E-Slate electronic voting computer. The device prints a paper copy of the voter's summary ballot before the voter casts his or her ballot on the E-Slate. The voter can then compare the printed ballot with the electronic ballot displayed on the computer screen before voting. Once the voter pushes the "vote" button, the paper ballot scrolls forward displaying a blank page to the next voter.

"Programming errors which necessitated a 36-hour recount of all votes cast on lection Day in the 2002 General Election and programming errors that occurred in the Democratic and Republican Primaries this past spring have created considerable distrust among Tarrant County voters of any type of electronic voting system that does not have a Voter Verifiable Paper Audit. The scanners that are used on Election Day have such an audit trail -- the ballot itself which is marked by the voter. Those Tarrant County voters who vote early, or who use the E-Slate on Election Day have no such assurances without this verifiable paper audit trail. The Hart system, including the VVPA, has been approved and past all of the federal standards. There is no reason for the State of Texas to deny the use of this Voter Verifiable Paper Audit which is in use in California, Colorado, Ohio and many other states."

Brender said he was only informed about this matter last week and there is still time to retrofit the Tarrant County machines if the Secretary of State will move promptly to overrule the decision of the Deputy Secretary of State.....

Doesn't everyone stand to gain if elections are free and fair? The real question is why this is a partisan issue at all.