Brimer versus Davis in court today

Today's the day that the efforts by Sen. Kim Brimer to effectively knock Wendy Davis off the ballot in SD10 come to an end.

State Sen. Kim Brimer, R-Fort Worth, filed a lawsuit in July claiming that his opponent should not be allowed on the ballot. The legal arguments focused on whether Ms. Davis resigned from the Fort Worth City Council in time to run for the legislature.

State district Judge Tom Lowe ruled that Ms. Davis was eligible, but Mr. Brimer challenged that decision in the 2nd Court of Appeals in Fort Worth. Just days before the scheduled oral arguments last month, the chief justice of the Fort Worth court asked that the case be transferred to the Dallas appeals court. No reason was given for the change of venue, which was approved by the state Supreme Court.

It should be noted that there was also a request by Brimer to the State Supreme Court to expedite this hearing, which was denied.

State district Judge Tom Lowe ruled that Ms. Davis was eligible, but Mr. Brimer challenged that decision in the 2nd Court of Appeals in Fort Worth. Just days before the scheduled oral arguments last month, the chief justice of the Fort Worth court asked that the case be transferred to the Dallas appeals court. No reason was given for the change of venue, which was approved by the state Supreme Court.

The state Constitution says that those who hold a "lucrative office" are not "eligible to the Legislature." A seat on the Fort Worth City Council qualifies as lucrative, but each side disagrees on when Ms. Davis left the council.

Her replacement, Joel Burns, was sworn in at a private ceremony on Jan. 1, a day before the deadline to file for the primary. Mr. Burns was also publicly sworn in at a Jan. 8 council meeting. Ms. Davis filed for the state Senate seat on Jan. 2.

Mr. Brimer's attorneys argued that the Jan. 1 ceremony wasn't valid, but Judge Lowe disagreed.

The deadline for changing the November general election lineup has passed, so Ms. Davis will appear on the ballot no matter how the appeals court rules. However, if a court decides that she wasn't eligible, Ms. Davis would not be allowed to take office if she wins.

In which case there would be a special election, presumably an "emergency" one so that someone could be sworn in while the next Legislature was still in session. If Davis loses this ruling but wins anyway in November, I would expect her to win that special election easily. Which would ultimately accomplish nothing but to push her to the bottom of the seniority list. Let's hope the court spares the residents of SD10 that problem.

Assuming they before the election, anyway.

The justices on Thursday questioned what authority they have to declare a candidate ineligible now that a key deadline has passed that would have allowed them to remove a candidate's name from the Nov. 4 ballot.

Fort Worth attorney Nick Acuff, who represents Brimer, argued that voting has not yet started and that Davis is ineligible because Joel Burns was not sworn in to replace Davis until January 8, six days after she filed to run in the State Senate District 10 race.

Attorneys for Davis, the Texas Democratic Party and the chair of the Tarrant County Democratic Party argued that Burns was qualified for office on Dec. 27 when he was given a certificate of election by the Fort Worth city secretary.

Justices for the 5th Court of Appeals did not issue a ruling Thursday or indicate when they might decide the case prior to their leaving the bench.

I'd think either they issue a ruling before Early Voting starts, or they wait till after the election. I can't imagine a court wanting to affect an election while it is actually in progress. Even a ruling for Davis, which would leave everything as is, could still have an impact on the vote if it came down after voting had begun. So figure that if we don't get a ruling by next Friday, we're not getting one till much later.

Posted by Charles Kuffner on October 02, 2008 to Election 2008