July 01, 2004
Cuellar gets en banc hearing

And the next round in the Rodriguez-Cuellar recount fight goes to Cuellar.

SAN ANTONIO - A state appeals court on Wednesday agreed to a new hearing to reconsider last week's ruling in a voter fraud lawsuit brought by U.S. Rep. Ciro Rodriguez.

The entire seven-judge 4th Court of Appeals will hear arguments on whether Rodriguez should be allowed to challenge the eligibility of hundreds of voters in Webb and Zapata counties who cast ballots in the March 9 Democratic primary.

Rodriguez, a seven-term incumbent from San Antonio, trails Laredo lawyer Henry Cuellar by 58 votes in the race for the Democratic nomination in Congressional District 28, which runs along Interstate 35 from San Marcos to the Mexican border.

Last week, by a 2-1 majority, a 4th Court panel overturned a lower-court judge who had ruled that Rodriguez could not use the voter eligibility issue in court because it had not been raised before a legal deadline.

Rodriguez contends that the issue was raised in a timely fashion. His legal team says it has found several hundred cases of improper voting in Webb and Zapata counties, where Cuellar received more than 80 percent of the vote.

The dissenting judge wrote a harshly worded opinion accusing his colleagues of misapplying the law and contradicting previous rulings by the same court.

The appeals majority ordered that Rodriguez be given a new trial in Laredo, but Cuellar quickly asked for a so-called "en banc" hearing that would include the entire 4th Court.

This is the first time in more than a year that the appeals court has granted an en banc hearing at the request of a party involved in the case in question, according to court records.

Rodriguez has until July 6 to submit his arguments for the rehearing.

So far, this is following the script that some lawyers predicted it would after Rodriguez got his initial win in court. Stay tuned.

Posted by Charles Kuffner on July 01, 2004 to Election 2004 | TrackBack

Regardless of how anyone feels about the merits of the case (and I do have to admit Cuellar has the stronger case), this is a terrific example of why having partisan judicial races is a bad idea. It's pretty clear that Democrats prefer Rodriguez while the GOP prefers Cuellar, and so far, that's the way the appeals court judges have voted. Even if the judges have a genuine disagreement about the admissibility of Rodriguez's claim, it sure looks like they're making a political decision rather than a legal one.

Every once in a while, courts are going to have to decide a political case. How can anyone have confidence in the fairness of the decisions in such cases when the judges had to run explicitly as Democrats or Republicans? I wouldn't be surprised if Rodriguez files a Federal equal-protection claim if the appeals court rules against him. (I'm not saying he'd win such a case; only that, thanks to our partisan judicial elections, it couldn't be dismissed out-of-hand.)

Admittedly, even non-partisan judicial races wouldn't eliminate this problem completely, as judges could still run as "conservatives" or "moderates" (nobody in Texas is going to run as "liberal," of course). But making judicial races explicitly partisan makes no sense. Texas needs to change this.

Posted by: Mathwiz on July 2, 2004 4:38 PM