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.

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.)