January 16, 2008
No ballot challenge over Chuck's withdrawal

Fans of unadulterated political theater will likely be disappointed by this, but I think it's for the best.

A court challenge to the procedure that allowed embattled Harris County District Attorney Chuck Rosenthal to withdraw from the Republican primary now appears unlikely.

The remaining candidates from both parties apparently will refrain from taking action for political, rather than legal, reasons.

Just minutes before the withdrawal deadline on Jan. 2, Harris County Republican Party officials received a letter in which Rosenthal asked to be taken off the March 4 ballot. The only other contenders at the time were Republican Jim Leitner and Democrat C.O. Bradford.

Under state law, the incumbent's departure from the campaign triggered a two-day extension for others to sign up to run as Republicans. Police Capt. Doug Perry, former judge Pat Lykos and prosecutor Kelly Siegler did so.

Local Democratic Party chairman and attorney Gerald Birnberg and others said, however, that Rosenthal's letter was void because it lacked notarization and asked that his "nomination" rather than his "name" be removed.

The primary determines who gets the nomination.

But now Leitner says he has decided against filing a lawsuit aimed at rewinding the process so that he and Rosenthal would be the only contenders. Bradford, after meeting with advisers about the issue, has taken no action and won't comment on the issue, according to a spokeswoman.

It's impossible to separate out the politics of this from the merits, so let's just go down the political path. Leitner had a pretty strong case for pursuing this. He seems to be an underdog in the current four-way GOP matchup, with Pat Lykos and Kelly Siegler (even with her own baggage) being favored over him. If he wanted to position himself as a candidate of change, he could justify the challenge to Rosenthal's withdrawal as an insistence on doing things right even when there's a cost. Candidates often face a backlash for trying to knock rivals off the ballot, but the objective argument for doing so is pretty straightforward - either "acknowledged" has a specific meaning or it doesn't - and given the GOP's desire to hold this office, I think bygones would have been bygones. I'd probably have advised him to file the suit if I were in a position to do so. Having said that, I respect his decision not to:

Leitner said he realized that filing and winning a lawsuit would make him the sole Republican challenger to Rosenthal, who has been politically wounded by the disclosure of sensational e-mails he sent and received on government computer equipment.

"Even though much of me wants to do just that, I cannot take that step," Leitner wrote to the news media. "I feel that the last thing voters need right now is to have the court decide who their candidate will be.

"This may be the way to turn a sure win into a possible loss, but I feel it is the right thing to do," he added.

I can't argue with that. It may not be a winning decision, but it's an honorable one.

As for Bradford, I think the case for not intervening is equally clear. A Leitner candidacy, which I think we'd have wound up with had Bradford pursued this, would make it harder for him to be tha candidate of change. The self-interest of wanting to run against Rosenthal enough to force him back on the ballot after he tried to drop out undercuts the message of wanting to clean up the office by getting rid of Rosenthal. You might still get the matchup you want, but now you look cynical. I think the downside is too high, and I think the decision to let sleeping dogs lie was the right one.

One last thing:

Birnberg said political strategy prevents Bradford or any other Democrat from going to court against the Republicans' acceptance of Rosenthal's letter as a legally binding document.

"We will (probably) let the Republicans disobey the law," Birnberg said. "We will explain to the public they are not following the law, they want to put in a DA who does not want to follow the law -- and let the voters decide."

GOP officials said, however, that before they accepted Rosenthal's withdrawal they were assured it was legal by the Texas Secretary of State's office and the Harris County Attorney's Office.

While the decision whether or not to pursue a legal remedy to Rosenthal's faulty withdrawal was political, so too was the ruling by the Republican Secretary of State and County Attorney that that withdrawal was just fine as it was. Things might be very different today if the paperwork had been handed to an impartial authority for processing.

Posted by Charles Kuffner on January 16, 2008 to Election 2008

The text of the Election Code is pretty clear that a ballot withdrawal must be acknowledged. I don't know how the lawyers could advise Rosenthal and the GOP otherwise. If I were the judge asked to decide if Rosenthal's letter was a sufficient withdrawal, I would have to hear some awfully convincing arguments why I should not follow the statute's plain language and negate the withdrawal.

That said, I understand the decision not to pursue a legal remedy. Like you, I disagree with it, but I can accept Leitner's decision.

Posted by: Kenneth Fair on January 16, 2008 10:18 AM

There's a bad El Paso Court of Appeals case that says that a withdrawal from the primary does not have to be acknowledged. (In that case, the candidate who had tried to withdraw sought to withdraw his withdrawal.)

Posted by: Mark Bennett on January 17, 2008 4:19 PM
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