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Gerry Birnberg

The election night experience

Let me start off by saying that my heart breaks for everyone in Uvalde. I cannot begin to fathom the pain and loss they are experiencing. I don’t know when we as a society will act to protect people from gun violence, but we cannot act quickly enough. We certainly didn’t for Uvalde, or Santa Fe, or El Paso, or any of too many other places to name.

For the subject that I wanted to be thinking about yesterday, we start with this.

Harris County voters are in for a long election night, with full election results in primary runoff races not expected until well into Wednesday. The night also could be politically turbulent as a dispute plays out over one line in the state’s election code.

One reason for the expected slow count Tuesday is the Harris County Republican Party’s decision to break with the county’s ballot delivery plan, according to Harris County Elections Administrator Isabel Longoria. After closing the polls, election judges will hand off ballots to law enforcement officers and deputized county staffers, who will drive the equipment to the central counting station at NRG Arena on the judges’ behalf. The Harris County GOP argues the plan violates state law, so they are advising their party’s election judges to drive the ballots to NRG themselves. The Texas Secretary of State’s office agrees with the GOP’s assessment.

An election judge is the person in charge of running a voting location. In a primary election, each polling location has one judge from each party overseeing their own party’s voting process. In the past, the responsibility of transporting the ballots to the counting station has fallen to these election judges, the final task at the end of their 15-hour day.

Despite the GOP’s criticism, at least 40 Republican judges are choosing to participate in the county’s plan.

The dispute seems to be more about politics than the law, Martin Renteria, a Republican election judge in Harris County, said. He has no problem trusting a law enforcement officer to deliver the ballots, especially in a primary election where a Republican candidate is going to win no matter what.

“A Republican is going to win during the primary election. It’s going to be Republican versus Republican,” Renteria said. “It’s just illogical to me, and this is a part of the story that nobody talks about.”


Under state law, ballots should be delivered by either the election judge or an election clerk designated by that judge.

At a May 11 hearing with the state House Elections Committee to address delayed election results, Longoria argued the plan utilizing law enforcement officers and deputized staffers is in compliance with Texas law.

“The election code does not speak to the delivery other than the presiding judge must turn over those election records to our election office. So it doesn’t speak to who has to drive to meet the other person to do so,” Longoria said.

The Texas Secretary of State’s office has disagreed with her interpretation and urged the county to change its plan.

“Harris County’s decision to allow volunteers to transport election records — including voted ballots — to the county’s Central Count location on Election Night is incompatible with the Texas Election Code and violates well-established chain of custody protocols spelled out under Texas law,” Texas Secretary of State spokesperson Sam Taylor said in a statement on Friday.

However, Gerald Birnberg, an elections attorney and General Counsel to the Harris County Democratic Party, questioned the Secretary of State’s logic, pointing out that its own office deputizes others to perform certain duties.

“The same way that the Secretary of State is deputizing these people in his office to speak on behalf of the Secretary of State on statutory matters, to perform his statutory duties, the elections administrator is deputizing individuals to carry out duties and responsibilities and functions that are otherwise prescribed to be discharged by the elections administrator,” Birnberg said.


The Harris County Elections Administrator’s office maintains the Secretary of State’s office knew about the strategy and raised no objections when they implemented the ballot delivery plan during the May 7 election.

In a statement, Longoria said: “In April, the EA’s Office discussed the May 7 law enforcement and county driver program with the Secretary of State’s Office’s Managing Attorney of the Elections Division, specifically requesting guidance and recommendations. The SOS raised no concerns, legal or otherwise, with the program. Further, the EA’s Office discussed the plan for both May elections with both political parties as early as April 7. Both parties had the opportunity to ask questions, review the chain of custody document, and raise issues. Neither party raised concerns.

In fact, the first time any concerns were raised occurred during a public meeting May 11 at the Election Committee Hearing by the Secretary of State’s Office. One week later, just six days from election day, the Harris County Republican Party notified us that its judges would not participate in the program.”

See here for the background. Later in the day, we got this.

With voters walking into polling places and ballots set to arrive at NRG Arena in a few hours, Harris County’s Republican Party has challenged the process election officials will use to transfer ballots from locations to the central counting center, citing concerns with handing the machines over to anyone but precinct judges.

In the 18-page filing to the Texas Supreme Court around 2 p.m. on Tuesday, the local Republican party says despite assurances that election officials have it under control, state election law and past experience make them wary to hand over ballots to emissaries so they can ferry to a central location.

Cindy Siegel, chairwoman of the Harris County GOP, said officials are impeding on the democratic process.

“They are trying to make it as difficult as possible, and talking people out (of driving ballots themselves) by warning them there will be long lines,” Siegel said. “They are scaring people into creating this system that isn’t even legal.”

Lawyers for the GOP argue the county is ignoring state election laws and breaking the mandatory chain of custody for ballots.

“An essential component of the central counting station is the physical delivery of sealed ballot boxes and access to the central counting station is necessary (for) that process to take place,” the filing states.

The petition asks the high court to order Harris County to allow election judges to drive their own precinct ballots to the central counting center at NRG Park.

The request drew a fast rebuke from Democratic Party leaders and Harris County Attorney Christian D. Menefee.

“Their leadership has known about the County’s election day plans for some time, yet they waited until 6 hours before the polls close to now ask a court to throw the plans out the window and put residents’ votes at risk,” Menefee said in a statement. “And in their lawsuit, they flat out misrepresent the county’s plans to the court, making several statements that they know are demonstrably false.”


“(Longoria’s) office successfully used constables in the May 7 election, and the GOP had no problem at that time,” said Odus Evbagharu, chairman of the Harris County Democratic Party. “Now, someone wakes up on Election Day and suddenly thinks law enforcement officials and deputized election officers are an issue?”

Siegel said that is precisely why the GOP is suing.

It is the May 7 election, and widespread problems that day, that prompted the concerns in the first place. She said Republican judges only learned the day before that election that they would have to hand ballots over at polling sites, rather than drive them downtown themselves. In a handful of cases, no one came to pick up the ballots — leading the election judge to take them home — or couriers failed to drop them off in a timely manner. As a result, the county did not complete its count until Sunday morning, even though fewer than 115,000 ballots had been cast.

Again, I didn’t have a problem with the May 7 reporting. There’s clearly a difference of interpretation of the law here, and if that can’t be resolved on its own then a courtroom is the proper venue. I have a hard time believing that this couldn’t have been litigated before Tuesday afternoon, however. I started writing this post at 8 PM, and as of that time there had been no ruling from SCOTx. I don’t know when they plan on ruling, but at some point it just doesn’t matter.

UPDATE: It’s 10:30 PM, more than a third of the Tuesday votes have been counted, and I see nothing on Twitter or in my inbox to indicate that SCOTx has issued a ruling. So let’s think about this instead:

Well said. Good night.

UPDATE: Here’s a later version of the story about the GOP’s lawsuit over the results delivery process. I still don’t see any mention of a decision being handed down. And for all of the fuss, final results were posted at 1:26 AM, which seems pretty damn reasonable to me. The midnight update had about 98% of ballots counted on the Dem side and about 95% on the GOP side – 70,016 of 72,796 Dem votes and 105,486 of 116,100 GOP votes. Seriously, this was a fine performance by the Elections Office.

What are we going to do about that Independent Police Oversight Board?

The easy answer is “make it better”, it’s how you do that that’s harder.

As protests over George Floyd’s death swept the nation, activists in Houston cried out for police reform. Among their demands: Give us an independent police watchdog.

One already exists, city officials said: Houston’s Independent Police Oversight Board.

But the board lacks meaningful power, with one longtime civil rights activist calling it “window dressing.”

Houston’s Independent Police Oversight Board, which reviews investigations completed by the Houston Police Department’s internal affairs division, meets at police headquarters. It cannot launch its own inquiries or accept complaints directly from civilians. Members are forbidden from discussing any of the cases they review — even with the mayor or other public officials. Its sparse website includes instructions on how to file a complaint with police, but little information on the board’s own work. It lacks the power to subpoena documents or compel officer testimony. It’s a volunteer body appointed by the mayor and has no professional staff. And when members of the oversight board make policy recommendations, they often never find out what happens to their suggestions, current and former members told the Chronicle.

“It’s clear if we had additional clout, we could do more and better work,” said Gerald Birnberg, a Houston attorney who serves on the oversight board. “It feels like we’re working in the dark.”

As America reckons with racism and calls to address police violence, critics say Houston’s police oversight board is inadequate. Those who argue against change say the board has sufficient power and lacks training to investigate or issue subpoenas.


The board can make recommendations to the chief related to disciplinary action, policies and training, but the chief has the final say.

While members are forbidden from discussing the cases they review, some of their recommendations became public in a police brutality lawsuit filed after the 2012 police killing of Kenny Releford.

HPD was forced to turn over internal affairs files related to several shootings, with recommendations filed by the IPOB and its earlier incarnation. When the board reviewed the July 2012 shooting of Rufino Lara, two members of the panel wrote notes urging de-escalation training.

The officer should not have “fired her gun on someone who was not pointing or near to pointing a dangerous weapon toward her,” one member wrote. “Better training needs to be provided.”

The majority agreed with the department’s conclusions, but all checked off boxes indicating training had not been sufficient.

The police department also maintains discretion in deciding what records to release to the oversight board, though board member Kristin Anderson, a psychology professor at the University of Houston-Downtown, said members “see all documents associated with any case” that comes to the board.

She said the public deserves transparency, but said granting the board subpoena power is a “red herring” and would not give members “the ability to tell if a cop is lying.”

Birnberg said board members do not have unfettered, immediate access to all the records they request. He recalled seeing cases where board members were told obtaining an autopsy would take four months — far longer than the two-week period the board’s panels have to review individual cases.

“I don’t know if the chief is aware of the structural impediments to the panels getting meaningful information at the time they’re supposed to be ruling on the cases,” he added.


Houston attorney Joe Melugin, who spent three years suing the Houston Police Department over the shooting death of Kenny Releford, said he disagrees with those who say holding police legally accountable police should be left to the district attorney.

“Until the city fires police officers for abuses of power and unjustified violence, and until the DA prosecutes police the same as any of the rest of us, then the problems with police abuses of power will persist regardless of changes to the IPOB,” he said. “We must change how the police force exists and operates in our city.”

There’s a lot of back and forth in the story about what the IPOB can and cannot do, and I’m not in a position to assess the claims. I agree with Joe Melugin, the ultimate goal needs to be accountability, where bad cops are fired and cops who break the law are arrested and prosecuted like anyone else would be. Surely if that had always been the case, we wouldn’t be in the position we’re in right now. As for the “how do we get there” part of the discussion, I basically agree with the Houston Justice Coalition demands:

1. Uniform Body Camera Policy

The current body cam policy is a disjointed mess. Cameras are not on consistently. According to a KHOU investigative report completed in 2017, very few tapes were released to the public upon request. We demand that cameras run and that all tapes are released within 24 hours upon request.

2. Transparent Tracking of Complaints

When a complaint is made on an officer, there is no way to know the status of the complaint. The timelines for followup are egregious, and often aren’t even followed. Houstonians who want to hold police accountable must have a clear system with expedient, easily accessed methods of feedback between them and HPD to ensure that officers face consequences when they violate policy and civil rights.

3. Citizens Review Board with Subpoena Power

A citizens review board must have the power to bring officers in for questioning and possibly for charges and repercussions. Otherwise, a board is simply an artificial token, not an arbiter of true justice. We demand that a citizens review board chosen by The People, unchecked by the Houston Police Officers Union or City Hall, be formed immediately and granted with the power to subpoena law enforcement—full stop.

Maybe subpoena power isn’t all that, but let’s try it first and see where it gets us.

Dallas County GOP sues to knock basically all Dallas Democrats off the ballot

Well, that escalated quickly.

Dallas County Republicans have filed a lawsuit to have 128 Democrats kicked off the March 6 primary ballot.

The lawsuit, filed in Dallas County late Friday, contends that Dallas County Democratic Party Chairman Carol Donovan didn’t sign the petitions of 128 Democratic Party candidates before sending them to the Texas Secretary of State’s office, as required by law.

“The Election Code says the chairman, and nobody else, has to sign them,” said Elizabeth Alvarez Bingham, a lawyer for the Dallas County Republican Party. “Carol Donovan is the chair. She was supposed to sign them. She didn’t do it.”

The news stunned some Democrats after a lawyer for their party notified them of the lawsuit Sunday afternoon.

“We have assembled a legal team of Dallas’ best and brightest Democratic election law attorneys,” Donovan said late Sunday in a news release. “Though we are taking this case seriously, the Republican Party’s lawsuit is not supported by Texas law. We will fight to ensure that all Democratic voters in Dallas County can participate in a fair Primary election.”


According to the lawsuit, only a fraction of the candidate petitions approved by Donovan actually contained a signature by her hand. The GOP lawsuit alleges Donovan’s signature on other petitions was not hers.

There’s not a whole lot of information to go on here, so let me note a couple of comments I saw on Facebook from people who know election law far better than I do. The first is from Glen Maxey:

“This is a frivolous lawsuit. The Primary Director, under the direction of the Chair, signed these forms. That’s the way it’s been done for decades. And the courts have ruled that way in the past.”

And the second is from Gerry Birnberg:

“And that’s how the Harris County Republican Party does it (or has for years).”

To that extent, and based on another comment I saw, here is Sec. 1.007:

DELIVERING, SUBMITTING, AND FILING DOCUMENTS. (a) When this code provides for the delivery, submission, or filing of an application, notice, report, or other document or paper with an authority having administrative responsibility under this code, a delivery, submission, or filing with an employee of the authority at the authority’s usual place for conducting official business constitutes filing with the authority.

In other words – and remember, I Am Not A Lawyer – it seems like the law allows for an employee of the county party to sign the documents, in place of the Chair. Which is what Maxey and Birnberg are saying. Individual candidates have had ballot applications rejected for technical issues with petitions they have submitted, but this isn’t quite the same as that.

There’s also the question of standing, which DCDP lawyers brought up in response to this suit.

According to a document filed late Monday on behalf of 14 candidates threatened with removal from the ballot, the Dallas County Republican Party and its chairwoman, Missy Shorey, have no standing to bring the suit, since they are not candidates in the election.

“The DCRP is clearly not a candidate and Shorey does not allege that she is a candidate for any office,” according to the filing from the lawyers. “As such, neither the DCRP nor Shorey have the necessary personal interest to have standing to seek the removal of any candidate from the ballot.”

Shorey and her attorney, Dallas lawyer Elizabeth Alvarez Bingham, argue that Dallas County Democratic Party Chairwoman Carol Donovan was required to sign the candidate paperwork of Democrats appearing on the March 6 ballot and send the documents to the Texas Secretary of State. Donovan signed only a fraction of the petitions submitted to her, but her signature, clearly signed by someone else, appears on the documents of the 128 candidates in question.

But the candidates, led by state Sen. Royce West, D-Dallas, say there’s nothing in election law that requires Donovan to “sign” candidate petitions, and that she can designate a person to review and sign petitions, if she chose.


Buck Wood, an attorney for the 14 candidates who responded to the suit, said it’s unlikely that the GOP lawsuit would result in anybody being removed from a ballot.

Wood said process duties, like those of a county party chairman, should not determine the fate of an “eligible” candidate because it would open the door for sloppy or diabolical county leaders sabotaging efforts of candidates across the state.

“It’s not an eligibility issue,” Wood said. “There’s no way anybody can be replaced.”

I have a hard time believing a court would essentially cancel dozens of elections for what seems to be normal practice, but I suppose anything can happen. At the very least, it looks like this action may be dismissed or withdrawn for now, but may be raised again after the primaries. We’ll see.

Today’s the day for the Commissioners Court selection process

I’m sure we’re all ready for it to be over.

El Franco Lee

Just last week, state Sen. Rodney Ellis claimed he had enough support from Democratic Party chairs to become the next Harris County commissioner for Precinct 1. Not that he’s resting easy in a race as unusual as this one.

“I do wake up in the middle of the night, remembering somebody I was supposed to call and didn’t call,” the longtime legislator said.

On Saturday, Ellis will try to secure the majority of votes from among the 125 precinct chairs needed to win the post, which represents 1.2 million people, controls a budget of more than $200 million and helps to govern the third-largest county in the nation.

Ellis is vying for the post in the heavily Democratic precinct with Gene Locke, who was appointed to the office five months ago following the death of longtime Commissioner El Franco Lee. Locke disputes Ellis’ claim to a majority of the 125 precinct chairs who will be making the decision and says he feels good about his chances.


While many see the race as between Ellis and Locke, Houston City Councilman Dwight Boykins is also viewed as a contender.

Other candidates include photographer Georgia Provost, KPFT Radio chairman DeWayne Lark and educator Rickey Tezino, who have portrayed themselves as non-establishment candidates who could shake up the status quo.

For the most part, the candidates’ broad goals seem to align. Most if not all are committed to Lee’s priorities and goals, including boosting senior and youth programs and reforming the county’s criminal justice system.


With so few actual “voters,” turnout also will be key, said Texas Southern University political scientist Michael Adams. At least one precinct chair has already RSVP’d “no” to the gathering. Adams said he expects precinct chairs to be energized and to show up in large numbers.

“It is still about getting to 63 votes,” Adams said, referring to the number needed if all of the party chairs show up. “One-on-one campaigning is all that can really be done.”

The first order of business for the precinct chairs will be to select someone to lead Saturday’s gathering, according to Gerry Birnberg, a former chairman of Harris County Democrats.

That person will determine the process for voting. All four options are public, and they mainly differ on how the chairs signal who they are voting for.

If no candidate receives a majority in the first round of voting, the top two vote-getters will go to a runoff, Birnberg said.

“I don’t know what the outcome is,” Birnberg added, “but I don’t believe there is anybody that’s going to wake up at 10 o’clock in the morning to go downtown who doesn’t already know what they’re going to do when they get there.”

Technically, there’s at least one person who isn’t ready for it to be over, and that’s the precinct chair who sent out an email saysing we should “put a motion to the floor asking that we postpone the nomination for one month [so] that we as Precinct chairs can rally ourselves and get better clarity on the process”. I say the process is pretty clear and has been explained more than once, and if Rodney Ellis gets the nomination we need to get busy replacing him on the ballot, so it is safe to say I will not vote for this motion. I also think Gerry Birnberg is right – there ain’t a whole lot of undecided voters in this election. I will have a report tomorrow after all is (hopefully!) said and done.

Overview of the Commissioners Court Precinct 1 “race”

I put “race” in quotes because it’s not like any other race you’v ever seen.

El Franco Lee

The campaign for the next Harris County Precinct 1 commissioner appears in many ways like any other: candidates are raising money, seeking endorsements and sending out targeted mailers touting their credentials.

But this is not a typical election, and voters won’t be heading to the ballot box. Instead, the task of picking a commissioner who will represent 1.2 million people – more than the populations of nine states – and control a $200 million budget falls to a group of 125 Democratic precinct chairs.

That’s because longtime Commissioner El Franco Lee’s name remained on the March 1 primary ballot after his death in early January, leaving the precinct chairs to select the party’s new nominee, who will be unopposed in November.

The unusual nature of the nominating process means the campaign is less democratic than most local elections and far more intimate – built around in-depth policy conversations and targeted wooing of party insiders.

Example: The presumed frontrunners, Rodney Ellis and Gene Locke, both sent flowers to female precinct chairs for Mother’s Day.


City Councilman Dwight Boykins has not formally announced his candidacy, citing concern that he could forfeit his municipal office by doing so. But he has been actively campaigning for the job.

Because voters last November extended the terms of Houston elected officials to four years, from two, those who become a candidate for another office now are subject to the so-called “resign-to-run” provision of the Texas Constitution, which applies to municipal officeholders with terms longer than two years. Though a Texas attorney general opinion issued in 2000 states that running for the nomination of a political party’s executive committee does not prompt an automatic resignation, the courts have yet to formally resolve the issue.

“My best bet is that the courts would rule that (then-Attorney General John) Cornyn is correct and you don’t trigger resign-to-run by seeking the nomination of the executive committee,” former Harris County Democratic Party Chair Gerry Birnberg said. However, he added, “Until the courts decide the issue, there is no way to say for sure, definitively, that Attorney General Cornyn was correct.”

So Boykins and other interested council members – Jerry Davis and Larry Green – have approached the campaign gingerly.

“I can neither admit or deny my interest in the seat because of the way the current law is drafted,” Green said recently. “However, I can say I have been approached by several precinct judges and other community members requesting that I do move forward in trying to run for the seat.”

It’s a good overview of the process, so give it a read and familiarize yourself. I spoke to Chron reporter Rebecca Elliott on Thursday, but much like Kevin Costner in The Big Chill, my role was left on the cutting room floor. One point I want to address in this story, which is as much about the great power that’s been bestowed on some 125 precinct chairs as anything, is the question of how this process could have been done differently. One precinct chair called for a special election instead of the current process. That has some intuitive appeal, but remember, we’re not actually picking a County Commissioner. We’re picking a Democratic nominee for County Commissioner. There’s no provision in the law for a special party primary election, and I’m not sure how you could conduct one in a way that mimicked an actual primary election. Those are technically open elections, but everyone who participates has to choose which primary they want to vote in. How do you ensure conditions like that in a special election environment? Remember also, we precinct chairs – not just the 125 or so of us in Precinct 1, but the 500 or so of us in all of Harris County – are also selecting nominees for two judicial races. There’s basically no concern about us doing that, in part for the obvious reason that those offices have far less power, but also because those nominees will have contested races against Republicans in November, and unlike the Commissioners Court race there’s no guarantee they’ll win. The concern about the un-democratic nature of this process is, in my opinion, entirely about the nature of the office of Commissioners Court, which has vast power and not a whole lot of electoral accountability under normal circumstances. It’s about the office, not the process. Fixing the process in some way, if there is a way, can’t address that.

I should also point out that as weird as this process is, it could be worse. For one, if the late Commissioner Lee had died next January after being elected and sworn in, instead of this January after the filing deadline had passed, then Judge Ed Emmett would have been able to not only pick a replacement as he did to fill out the last year of Lee’s term, but that replacement would have been able to file for election himself in 2018, and would almost certainly have cruised to an easy win. This is what happened with Jerry Eversole (who resigned after the 2010 election) and now-Commissioner Jack Cagle. At least here, it’s Democrats who are picking the replacement. Yes, we’d have gotten a shot at that person in the next primary, but that could mean nearly two years of a Commissioner in the most Democratic precinct in the county being chosen by a Republican County Judge, and an awful lot can happen in two years. We got lucky here, in that Judge Emmett is an honorable man, and his choice for this year of Commissioner Locke was a good one. But there was and would have been nothing to stop a less honorable Judge from picking whatever hack or crony he wanted to. It could have been worse, that’s all I’m saying.

One more thing:

If Ellis earns the Democratic Party’s nod for commissioner, the party would need to convene another executive committee meeting to find a replacement for him on the ballot for state senator – and quickly, as all nominations must be completed by late August.

The angling has already begun.

“Of course anybody in the (Texas) House – or any other position for that matter – is going to look at that position as something to move to, and so I fall in that category of looking at it as a possibility,” said state Rep. Garnet Coleman, one of several politicians who have already expressed interest in Ellis’s seat. “These seats don’t change hands very often, and more than likely, whomever is selected to be the nominee for the Democratic Party, they’re going to be there for a long time.”

Naming Sen. Ellis to fill the nomination ensures at least one more round of this selection process, with the precinct chairs in SD13 moving onto the hot spot. (That does not include me, as I am in SD15.) And if the precinct chairs of SD13 select a State Rep to fill the slot left vacant by Ellis – at the very least, Reps. Coleman, Thompson, and Miles are waiting in the wings – then we get to do this a third time. There is an argument to be made that selecting Commissioner Locke to run for the seat in November puts an end to that process. Whether one considers that a pro or a con is a matter of personal preference.

Wilson sued over residency for HCC

Dave Wilson and lawsuits go together like peanut butter and jelly.

Dave Wilson

Dave Wilson

The Harris County attorney sued Houston Community College trustee-elect Dave Wilson on Thursday, alleging the small business owner and anti-gay activist was not a resident of District II when he was elected to the post last month.

“We think there is a reasonable doubt as to whether he lives within the district, and it needs to be clarified,” said First Assistant County Attorney Robert Soard.

The three-page civil suit petition, filed in the 151st District Court, does not say where Wilson lives, but Soard said the grounds for the lawsuit are “similar” to ones raised by the defense in a still-pending lawsuit that Wilson, a perennial candidate, brought against the Harris County Democratic Party chairman in 2010, when he was kept off the ballot after filing to run for Precinct 4 Harris County commissioner.

That year, then-Chairman Gerry Birnberg argued that Wilson was ineligible to run because he had listed an address on his application that was not his residential address, as required by election code. Wilson’s wife, Connie, still lists a property at 7370 Lake Lane, which is in the Lone Star Community College System district, as her residential homestead, according to the Harris County Appraisal District website.

Wilson, who ousted HCC Chairman Bruce Austin in the Nov. 5 election by 26 votes, contends that he lives in “a 1,140-square-foot apartment upstairs” at his office, located at 5600 W. 34th St. in the college system’s District II.

The building there is an 11,340-square-foot commercial metal warehouse, according to county records.

Asked Thursday if he was living separately from his wife, Wilson said, “That’s a personal matter, and it’s none of yours or the Chronicle’s business.”

“I think that county records still show that we’re married. That’s all I’ll say,” Wilson said.

So to review, Wilson was removed from the ballot in 2010 by then-HCDP Chair Gerry Birnberg on the grounds that he did not live in County Commissioner Precinct 4. Wilson then filed a lawsuit against the HCDP to be reinstated on the ballot, but he lost. He subsequently also filed a federal lawsuit against a larger list of plaintiffs alleging that his civil rights were violated by being denied a spot on the ballot. The suit was dismissed by a federal district court, but the Fifth Circuit Court of Appeals granted his petition for a rehearing in 2012. I don’t know where that now stands.

In any event, in looking at these old posts, three things stand out to me. One is that the address Wilson was using to get on the ballot in 2010 was 1512 W. 34th Street, not 5600 W. 34th Street as he apparently used for his HCC filing. He was still using the 1512 address in his 2011 filing for Mayor. Does he have more than one warehouse that he claims to be his residency when he needs it, or did he move between then and now? A little fooling around on Google Maps tells me the two addresses are 2.8 miles apart. Not very far, but it’s not impossible that one might cross a political boundary or two in the journey. That would be another reason why it would ne nice to know when he started using the 5600 address. Second, while Wilson is playing coy with his marital status now, in 2010 he stated he that he was in fact separated from his wife. Finally, the one constant in all this is the 7370 Lake Lane address where Connie Wilson lives. Make of this what you will.

So what this means is that we ought to get a fuller airing of the facts this time. In 2010 he was booted at Gerry Birnberg’s discretion, and the courts declined to give Wilson relief. Here it’s Harris County that’s taking action after the fact, and I very much look forward to seeing the case play out. The HCC Board itself says it wasn’t their job to vet the candidate filing. That’s a question Rep. Harold Dutton brought up to them, and I have a sneaking suspicion Rep. Dutton will attempt to deal with that in the next legislative session. Wilson ran again for County Commissioner in Precinct 4 in 2012. That time, his application was accepted, and he wound up losing in the primary to Sean Hemmerle. I don’t know which address he used for that application, but clearly someone should find that out. If he was still using 1512 W. 34th Street, then he needs to be pinned down on when he moved.

Anyway. The saga continues, as they often do. No indication in the story when there will be a hearing on this, but one presumes it will be after the holidays. One also presumes the question of whether or not the County Attorney has standing to file such a suit will arise. Like I said, I very much look forward to seeing how this plays out.

Dems boot Oliver

Here we go.

The Harris County Democratic Party worked Wednesday to take district attorney nominee Lloyd Oliver’s name off the ballot, deciding to go forward without a candidate in November’s general election.

Whether they can actually take the outspoken and controversial lawyer out of the race remains an open question because state law does not appear to allow the party’s actions.

“There are ways to remove a candidate, but not the way they’re doing it,” Oliver said. “And my ultimate remedy is an injunction in the federal court, and I think the federal courts will agree with me.”

Oliver, a perennial candidate who has run as both a Republican and a Democratic, usually in judicial elections, said he did not know why the party wants to take him off the ballot.


Chad Dunn, the party’s attorney, said the party’s actions are lawful.

“All of the federal court decisions addressing this issue have found that political parties have an intrinsic right, as a private political association protected by the First Amendment, to choose and select their nominees,” Dunn said. “I think the law is very clear that political parties can’t be forced by the state, either by statute or some state officer’s requirement, to have a nominee in a race they don’t want to have a nominee in.”

I still don’t see it, but I remain a non-lawyer, so what do I know. Oliver is a barnacle on the political process and I have zero sympathy for him, but that doesn’t make this legal or right. I presume a judge will eventually decide the former; the latter is for you to determine. I hope Dunn et al are correct about the law, because this will be a debacle otherwise. I’ll say again, I hope the lesson learned is that the party needs to be involved in the primary when a clearly unsuitable candidate files.

Mark Bennett objects to this move on principle. I’ll leave the principle to others to discuss, but I will offer a pragmatic defense: If this sticks, it at least ensures that an unqualified boob like Lloyd Oliver cannot be elected DA. How likely would that be? If Harris County is roughly 50-50 as it was in 2008, then I’d have bet money on Mike Anderson winning. If Harris in 2012 is to 2008 as 2008 was to 2004, then Oliver could easily win on partisan momentum. If it’s somewhere in between, who knows? Point is, as long as Lloyd Oliver is on the ballot there’s a non-zero chance he could win. Your opinion of that risk will likely color your opinion of the HCDP’s action. Murray Newman has more.

Birnberg files complaint to force Oliver off the ballot

I’m far from thrilled to have Lloyd Oliver as the Democratic nominee for District Attorney, but this seems a bit much to me.

Gerry Birnberg, the former party chair, filed a complaint earlier this month to have Oliver removed from November’s ballot because he praised the sitting district attorney, Republican Pat Lykos.

Specifically, Birnberg said in his complaint, Oliver told the Houston Chronicle in May that Lykos was such a good candidate that she “would have gotten my vote.”


Birnberg said he was not retaliating against Oliver for beating Zack Fertitta in the primary, but said he is concerned about Oliver’s loyalty and the Republican strategy.

“I believe the Republicans are planning on using his colorful past as a way to bring down the entire ticket,” Birnberg said.

He also said he expects loyalty to Democrats across the ticket, “and if a candidate is saying that ‘Republicans are still good candidates too,’ that’s not helpful for the Democratic party.”

So much to cover here, but let me start off by noting that Gary Polland was the first to report this:

This hasn’t made the local media yet, but former Democratic Chair Gerald Birnberg has made a complaint designed to remove Democratic “accidental” District Attorney candidate Lloyd Oliver from the ballot. This is an interesting development.

TCR wonders, do the D’s intend to remove and replace with a handpicked star who they think could take advantage of the nasty GOP primary battle between incumbent Pat Lykos and successful primary challenger Mike Anderson? Do the Democrats think that they can convince enough swing and Lykos loyalists to vote their way, and win a tight battle? Maybe it’s time for the Anderson group to smoke the peace pipe with District Attorney Lykos and her supporters.

Birnberg is worried that the Republicans will user Oliver as a club against the Democrats elsewhere on the ticket. Polland is worried that the residual acrimony from the Anderson-Lykos primary could let Oliver win a race he has no business winning. We live in interesting times.

I’m sure that Birnberg and Polland have both forgotten more election law than I’ll ever know, but I don’t see how the Dems can do this. For one thing, the case Birnberg is making seems exceedingly weak to me. I mean, the Democratic Speaker of the State House in 2000 (Pete Laney) endorsed George Bush for President, and he was far from the only Dem to do so back then. Compared to that, Oliver’s words barely register. I mean, they’d be grounds to remove him as a precinct chair, but to declare him ineligible as a nominee? I just don’t see it. Oliver is an idiot, but unless he chooses to withdraw I’m afraid we’re stuck with him.

Assuming that HCDP Chair Lane Lewis buys the ineligibility argument, it’s also not clear to me that Oliver can be replaced. Section 145 of the Elections Code doesn’t specifically address the question of replacing candidates who have been declared ineligible on the ballot, but Sec 145.039 says “If a candidate dies or is declared ineligible after the 74th day before election day, the candidate’s name shall be placed on the ballot”. By my calculation, that makes the deadline this Friday, the 24th. I have no idea if the machinery can be made to move swiftly enough to allow for this, again in the event that Lewis goes along with Birnberg’s complaint. It just adds to my incredulity about this.

Anyone going to do anything about this?

Dave Wilson remains an electoral scofflaw, among other things.

Mayoral candidate David Wilson has again filed for office using an address that disqualified him from the ballot when he attempted to run for county commissioner last year.

Wilson listed his business address of 1512 W. 34th St. on his application for county office last year and on his application for a place on the ballot as a candidate for mayor of Houston. He insisted last year and continues to insist that it is his home as well. But Democratic Party Chairman Gerry Birnberg rejected Wilson’s application to run in the partisan race as a Democrat because he claimed that Wilson told him he actually lives on Lake Lane.

The mayor’s race is nonpartisan, but the Lake Lane home is not in the city of Houston. “I spend some time there on the weekends,” Wilson said of the home.

See here, here, here, and here for background on this. There’s an awful lot of people who play this kind of game to establish “residency” wherever it is they want to run for office. I’m somewhat more forgiving about it for district residency than I am for city, county, or state residency, but I’ve been dissatisfied with the way our system handles this for awhile. Owning a second (or third, or fourth, or whatever) home someplace doesn’t mean you “live” there. Having a cot in your office doesn’t mean you “live” there. Neither does having a room at your parents’ house, or your ex-spouse’s house, or at any other residence owned by a relative or former roommate. The problem is I don’t know of a way to codify this into law. Our system is just very forgiving about this. Way more so than we are about letting people vote, in fact. I don’t know what that says about us, but I do know it’s nothing good.

What I want from the next HCDP Chair

So by now you know that HCDP Chair Gerry Birnberg will step down in December. The precinct chairs will select an interim Chair at that time, and a new Chair will be elected in the March primary. Lane Lewis has thrown his hat in the ring – he’d announced his intent to run for Chair some time ago – and I feel confident there will be other candidates. I’ll wait to see who gets in before I make any decisions, but in the meantime, here’s my wish list for the next HCDP Chair, whoever he or she may turn out to be.

1. Have a plan to deal with vote suppression. All the other items on this list put together are not half as important as this one. This includes, but by no means is limited to:

  • Educating voters about the new voter ID law, and helping those who need it get the required ID.
  • Defending against, and finding ways to go on the offensive against the King Street Patriots and their ilk.
  • Holding the Tax Assessor’s feet to the fire on voter registration applications, including more litigation as needed.

Anyone who does not have a detailed plan for this should be automatically disqualified for the job. If we don’t have our act together on this, nothing else will matter.

2. Develop a Latino outreach/turnout strategy. We’ve only been talking about such a thing since about five minutes after the Texas Constitution was ratified. May as well try to put one into practice.

3. Get involved in city elections. I don’t expect the Party to take sides in city races, since most city races involve more than one Democrat. But there’s no reason why the HCDP can’t at least tell us who the Democrats are in these races. Compare and contrast the HCDP’s 2011 City Election page with that of the Harris County GOP. The former tells you exactly nothing that you couldn’t find out elsewhere. The latter lets you know who’s on which team, and who’s the better team players among them. I can think of no valid reason why we don’t do something like that. In addition, city races can be used as testing grounds for voter registration, messaging, and turnout strategies. Every election matters. Why would we turn down a chance to use these elections to improve what we do?

4. Develop and implement a social media strategy. I’ll be honest, I don’t spend that much time on Facebook and Twitter, and I don’t use location-based apps like Foursquare, so for all I know the Party is already doing a great job with this. But whatever we’re doing, there’s always more that can be done. The methods and apps we’re using to win this election may be obsolete by the next election, and the key tool we’ll need to win the election may be something that hasn’t been developed yet. If we’re not on the leading edge, we’re falling behind. Oh, and studies show that Latinos – you know, the group that we desperately want to do a better job communicating with – are heavy smartphone users, more so than Anglos. You do the math.

5. Get elected officials more involved. I believe it should be the responsibility of every elected Democratic official to maximize voter registration and Democratic turnout in their district in every election that has Democrats on the ballot. I know I’m not the only Democrat in this county who believes that some of our Democratic elected officials do a better job of this than others. I know that the HCDP Chair has no authority over any elected official, but I daresay it’s within the Chair’s abilities to report on how each elected official does on this score to the Party membership. We the voters can take it from there.

So that’s my list. I don’t claim that it’s exhaustive or authoritative, but I do hope it will serve as a starting point for the discussion. I’d love to know what you want from the next Chair. Have at it in the comments.

Petition for new HCDP Chair

I don’t know how I feel about this, but it’s out there so I feel I should say something.

The time has come for new leadership in the Harris County Democratic Party.

After November’s defeat, we should look to new leadership, new ideas and a new strategy to win in November 2012 – because the status quo is no longer good enough.

If you believe that it is time for the resignation of the current Chair, and the election of a new Chair, then sign this petition and let your voice be heard!

On the one hand, I don’t really have any problems with the job Gerry Birnberg has done. This past election wasn’t about anything he did or didn’t do, or could have done, and as far as I can tell Democratic turnout locally wasn’t bad. As such, I’m a little reluctant to call for change without knowing what we’d be getting as a replacement. I can certainly imagine things getting worse post-Birnberg – see Bexar County for an example. There’s basically nothing at this site to indicate who’s behind it or what they have in mind. If that’s my only other option, I’ll stand pat, thanks.

On the other hand, while I like and respect Birnberg, I can certainly understand the sentiment behind wanting to do something different after suffering the losses we took two months ago. Ultimately, the scoreboard is what matters, and if you don’t win you shouldn’t expect to be rewarded, Gary Kubiak notwithstanding. Maybe there’s someone out there who has a surefire plan to finally boost Latino turnout to levels we’d all like to see. I guess I’d just like to know who that person is and what he or she has in mind to do before I get on the bus.

(Side note: Is anyone doing this at the state level? All due respect, but where’s the pressure on Boyd Richie? Just wondering.)

Anyway, since word of this site first came out via Carl Whitmarsh’s email list, a subsequent correspondent noted that he couldn’t find any information about the owner of the domain registration:

In my researching for the contact info I was lead to of Scottsdale AZ as the official contacts for this “group”. Upon going to their website you quickly learn that it is their business to shield and hide such information from the public. I don’t know about you, but I don’t think we should be endorsing or associating with any entity that is purposefully wanting to be secret.

I agree with this. Frankly, the lack of an “About Us” page, or some other introductory information about who these people are and what they have in mind was suspicious enough to raise flags, but by now you should be hearing klaxons going off. My advice is to stay away, and if you want to see a change in HCDP’s leadership then organize your own effort and work to get others on board with you. Campos has more.

From the “Grant me the grace to accept the things I cannot change” department

What’s that old saying? “Could be worse. Could be raining.”

As Democrats around the country girded for a midterm GOP tsunami, Bill White and his down-ballot Democratic cohorts spent the weekend tacking up political plywood and looking for signs, any signs, that the storm would not be as severe as the prognosticators were predicting.

One of those signs in Harris County, said Gerry Birnberg, Harris County Democratic Party chairman, was that early vote totals turned out to be “pretty much a dead heat” after an initial surge from enthusiastic Republicans.

Still there were storm clouds looming for local Democratic candidates, Birnberg noted on Sunday. And he meant real storm clouds.

“The wild card in the deck is the weather,” Birnberg said. Forecasters are predicting Election Day thunderstorms for the Houston area, and that might make it difficult for a party that needs a large turnout to make up the Republican advantage in mail-in and early voting ballots.

SciGuy suggests the weather ought to be pretty good during voting hours today. You can verify or falsify that yourself by just looking out your window.

As far as the differences between early voting and Election Day are concerned, a survey of the 2002 and 2006 results shows that Democrats have done about three points better on Election Day than before it. Of course, with a handful of exceptions Republican candidates still won on Election Day in those years. Still, the difference moved the needle a point or two in the Democratic direction, which may be enough if the vote tallies are fairly even to begin with.

That has to be qualified by noting that in those elections, the vast bulk of votes were cast on Election Day, which will surely not be the case this year. However, if the surge in Early Voting is similar in nature to what we saw in 2008, when scads of people who had formerly voted on Election Day changed their behavior, then we could see a much bigger difference in performance. In 2008, when many more Democrats voted early, Republicans gained between six and eight points on Election Day. I doubt we’ll see anything that dramatic, but I do believe the Republican well isn’t as deep today.

Finally, I should note that in all three years, including 2008, Libertarian candidates did better, by about a point in 2008 and a half a point in 2002 and 2006, on Election Day. I’m sure there’s a slacker joke in there somewhere, but I’m not feeling it right now. Green candidates did a smidge better on Election Day in 2002, in case you were wondering. Make of that what you will.

DOJ gets a call on voter intimidation allegations

Day Two of early voting saw far fewer allegations of voter intimidation and the possible arrival of the Justice Department to keep an eye on things.

Responding to complaints that poll watchers were intimidating voters in predominantly minority polling locations, County Attorney Vince Ryan summoned the county chairmen of both major parties to his office Tuesday and reminded them of their responsibility to make sure the observers were obeying the law.

Ryan also announced in the meeting that he has requested a monitor from the Justice Department to observe the voting process in Harris County through Nov. 2.

In a follow-up letter to the county chairmen, Ryan pointed out that poll watchers are entitled to be at a polling location, but cannot be present at the actual polling station when the voter is preparing his ballot and cannot converse with an election officer about the election, except to call attention to an irregularity or violation of the law.

Harris County Democratic Chairman Gerry Birnberg said his office had received reports Monday that poll watchers were “hovering” over voters, “getting in their face,” and talking to election workers.

“This is the fourth general election I’ve been involved with,” Birnberg said, “and we have never had this kind of problem in the past.”

TPM has more on this.

“We are currently gathering information regarding this matter,” Justice Department spokeswoman Xochitl Hinojosa said in a statement confirming the Civil Rights Division’s involvement.


Chad Dunn, a lawyer who is representing the Texas Democratic Party, told TPMMuckraker a number of witnesses have been interviewed by Civil Rights Division lawyers already. “We’ve gotten a number of reports — quite a few out of the Houston area — that poll watchers, King Street Patriot training poll watchers, are following a voter after they’ve checked them out and stand right behind them,” Dunn said. There’s at least a dozen reports that they could confirm with witnesses, he said. “Interestingly, it’s all in the polling places in Hispanic and African-American areas,” he added.

Terry O’Rourke, the first assistant in the Harris County Attorney’s office, told TPMMuckraker that there have been allegations of poll watchers talking to voters, which they are not allowed to do, as well as hovering over voters as they are waiting to vote. He said the complaints came from Kashmere Gardens, Moody Park, Sunnyside and other predominantly minority neighborhoods of the county.

Here’s more from TPM, in which they document some of the racist, threatening, and harassing emails that Houston Votes has gotten from these lovely people. I’m very glad to see this being taken seriously, and I hope this action will curtail the illegal behavior. KTRK and Mediaite have more, as do Martha, Stace, and John.

As for the Day Two numbers, here’s the same calculation I did yesterday, updated to include the October 19 vote totals.

2010 Day Two Strong R = 46.4% Medium R = 9.5% Medium D = 18.1% Strong D = 23.3% Total R = 55.9% Total D = 41.4% 2010 Overall Strong R = 46.7% Medium R = 9.2% Medium D = 18.1% Strong D = 23.4% Total R = 55.9% Total D = 41.5% 2006 Overall Strong R = 43.7% Medium R = 11.2% Medium D = 19.2% Strong D = 23.2% Total R = 54.9% Total D = 42.4%

Not a whole lot of change from yesterday, and still not a whole lot of difference from 2006. Again, this is a crude measure, there are more and different voters in each district, yadda yadda yadda. Make of it what you will. Statewide Day One early vote numbers for the top 15 counties are here

Paper ballots: Views differ

One reason why Harris County will make paper ballots available to anyone who wants them this year is because Beverly Kaufman is afraid we won’t get enough replacement voting machines in time for the election.

In a letter to county elections officials across the state, Kaufman writes that Harris County is in “desperate need of election equipment. Despite a commitment from Hart InterCivic to manufacture and provide eSlate equipment to conduct the upcoming election, there is not sufficient time to produce enough equipment to meet the needs of Harris County.”


The urgent tone of Kaufman’s request for loaner machines from other counties contrasts with her calm assurances to the public. Even as the fire still burned, she asserted that voting will remain as convenient as ever.

The language of the letter to elections officials across the state is meant to communicate a serious situation, not a hopeless one, Kaufman said. “We needed to impress upon people that we need their help,” she said.

You can read the letter here. The situation is “desperate” because there’s no time to delay. If you can’t help us now, you can’t help us, and we really need your help. What fascinated me about this story was the completely divergent views about paper ballots expressed by the local party chairs:

Harris County Republican Party Chairman Jared Woodfill said he understands that Kaufman is operating under challenging conditions, but that the party prefers to use electronic voting as much as possible.

“It prevents fraud at the ballot box,” Woodfill said. “If you revert back to paper, you have a lot of the issues involving voter fraud.”

A hybrid system also would necessitate the re-training of election judges and poll watchers, he said.

The county’s Democratic Party actually recommended a hybrid election day voting system, said Chairman Gerry Birnberg.

Paper ballots are less vulnerable to fraud, Birnberg said.

“In a paper ballot situation, you can always go back and manually recount,” Birnberg said. “How do recount an electronic voting machine?”

I actually agree with Woodfill about the greater potential for fraud with paper ballots. It’s what we see today, as the vast majority of voter fraud investigations, including all of the ones that AG Greg Abbott prosecuted in his million-dollar effort to combat the “epidemic” of voter fraud he believed was happening, involved paper absentee ballots. The irony of all this, of course, is that none of this genuine fraud would have been affected in any way by the voter ID legislation that Woodfill and Abbott and so many other Republicans desperately want to pass, since fraud by voter impersonation is basically unheard of. Woodfill’s concern about the potential for fraud with paper ballots is reasonable, but he and his partymates have never shown any interest in doing something about it, as they prefer instead to try to solve a “problem” that doesn’t exist.

As for Birnberg, the point he’s making is that however many times you count an eSlate machine’s memory stick, you’ll always get the same answer regardless of whether or not the stick is faulty or fraudulent. This is true, but it’s also true that ballots that have been filled out manually may be counted or not depending on an election official’s interpretation of the voter’s intent. The example of certain counties in Florida in 2000, where ballots that had the Democratic box checked for President and the name “Al Gore” written in for the write-in slot were discarded because the voter had selected more than one candidate, will always serve as Exhibit A for this. Even without room for interpretation, if you have a million paper ballots to count by hand, I can just about guarantee you’ll get a different result the second and third and fourth times you count them. Having paper ballots that have been printed by a voting machine, which thus eliminates the “not filled out correctly” problem, and which can serve as a sanity check and an emergency backup in the event there are ever doubts about the integrity of a memory stick, is clearly the best situation, and it’s one I hope the next County Clerk will work towards as we start the process of buying permanent replacements for the lost eSlates.

I myself don’t believe that paper ballots in the context of in-person voting are more or less likely to be susceptible to fraud than voting machine ballots are. The basic procedure for securing them, which largely boils down to “Never let any ballot be in the sole unsupervised possession of a single person”, is the same either way. As long as we can ensure that, I’ll be as confident as I can be about the integrity of the process.

Edwards asks for recount

No surprise.

State Rep. Al Edwards has asked for a recount of the primary election votes in the race he lost to Borris Miles by 10 votes.

Edwards filed the paperwork and submitted a $4,400 deposit this morning at the state Democratic Party headquarters in Austin, a spokeswoman confirmed.


Harris County Democratic Party Chairman Gerry Birnberg called a recount “a waste of money.”

“With electronic balloting, there’s nothing to recount,” Birnberg said.

Well, it’s his money, unless he wins. And there are a few absentee ballots – 1,381 of them in total, according to the County Clerk, and Edwards did win them by a decent amount, so who knows? This was to be expected, so let’s get it done. A statement from Rep. Edwards is beneath the fold.


Recount coming in HD146?

It’s not official yet, but I can’t imagine there not being a recount in a race decided by 11 votes.

[Borris] Miles, a former police officer who owns an insurance business, said he had not yet received a concession call from [Rep. Al] Edwards, but looked forward to working with him “and getting him alongside me to work with me to address some of the issues in our community.”

Edwards did not return repeated calls seeking comment Wednesday, but in public remarks made shortly after the election, he indicated an interest in seeking a recount.

KTRK and KPRC also mention Edwards talking about a recount. I fully expect that to happen, though I presume it will wait until this election has been certified by the County Clerk.

Thirty-three Democratic voters cast provisional ballots in the race, said Hector DeLeon, a spokesman for the Harris County Clerk, which conducted the primary. A provisional ballot is used when a person tries to vote on election day when his or her name is not on a list of registered voters in that precinct. The clerk’s office, by law, also must wait five days after election day for ballots that could be mailed from overseas, DeLeon said.

A ballot board made up of Democrats appointed by the party is expected to meet Tuesday and decide which provisional and overseas ballots will be counted, said John German, the administrator of elections for the clerk’s office.

The official results are expected to be certified two days later, officials said, and either candidate can request a recount by March 13. That request would have to be made to Harris County Democratic Party Chair Gerald Birnberg.

Figure that overseas ballots are unlikely to make any difference. It’s hard to say with provisional ballots, but given how few of them there are, even if all of them were accepted, Edwards would have to receive two thirds of them to affect the outcome. I think his main hope will be that a recount of the absentee ballots will yield some changes, and if that’s not enough he may try an election contest. We’ve seen a few of those in recent years, though only the 2004 challenge by Talmadge Heflin against Hubert Vo actually proceeded to completion, and the result still stood. Anything can happen, but my money is on Miles. The Trib and Nancy Sims have more.

HCDP apologizes to Slate and Valenzuela

The following is a statement from HCDP Chair Gerry Birnberg regarding the recent lawsuit that was filed by two judicial candidates who did not get the ballot placement they had drawn.

At the January 7 ballot drawing, Dennis Slate, a candidate for Harris County Criminal Court at Law Number 13, and Javier Valenzuela, a candidate for Harris County Civil Court at Law Number 3, each drew number 1, entitling them to the first place on the ballot for their respective races.

Unfortunately, when that information was entered into the computer list of candidates, a mistake was made by the party: Slate and Valenzuela were listed in the second places on the ballot in their respective races, rather than first.

The Harris County Democratic Party, and its chair, Gerry Birnberg, apologize sincerely for this error. There are 238 candidates running in the Democratic primary this year, and, despite checking and double checking, a mistake was made in listing two of them. That is very painful and embarrassing to me and to all of the folks on the primary staff who have worked so diligently to accomplish a fair primary election.

Upon learning that this error had been made, I directed that the county clerk’s office be informed immediately and demanded to correct the problem by re-programming the electronic voting machines. Unfortunately we were told by the clerk’s office that they would not do so unless ordered to by a district court judge. Upon being informed of that response, the wronged candidates obliged by filing suit. I promised to cooperate in any way I could, as I believed (and believe) these candidates are entitled to be listed first on the ballot in their respective races.

Unfortunately, the county clerk insisted in court that it is simply too late to do anything about the error. Frankly, I don’t understand that. It took less than three weeks to program and test the e-slate machines with the mistake; there were still three weeks from the date the clerk was notified of the error until election day. But the county clerk’s office was successful in persuading the court that it is just too late to do anything to rectify the problem.

I understand that some folks have questioned or criticized the wronged candidates for seeking relief from the courts by filing suit. Personally, I am pleased that they did so. Not only did they have a legal right to file the suit, after the county clerk said the only way they would undertake to fix the problem was if a court ordered them to, filing suit was the only way to achieve what the HCDP was trying to accomplish – remedying a legal wrong. In my opinion, they did the right thing by filing the lawsuit. The party made an error, and I appreciate their efforts to achieve what we were unable to get the county clerk’s office to do voluntarily – right the wrong, correct the mistake.

The Harris County Democratic Party sincerely regrets the error and urges all voters to educate themselves about the qualifications, experience, and credentials of all candidates on the ballot, rather than relying on such arbitrary factors as name and ballot position in selecting the men and women who will carry our banner in the November general election.

Gerry Birnberg
Chair, Harris County Democratic Party
Feburary 11, 2010

I don’t quite understand the County Clerk’s reluctance to fix this error. Seems to me it should be a high priority on their part to ensure things are correct, even when it’s not their fault that something went wrong. And I’ll say again, it’s just incomprehensible that we have to deal with ballot order as an issue at all. The next version of our electronic voting machines needs to be able to deal with this. In any event, as I received a comment about Slate and Valenzuela for filing this suit, I wanted to make sure everyone saw this.

Two judicial candidates file lawsuit over ballot order


Two lawyers seeking Democratic nominations as county court judges today each filed a pro se suit against Gerry Birnberg, chairman of the Harris County Democratic Party, alleging they will be “irreparably harmed” because they aren’t listed first in their races on the primary ballot.

Dennis Slate, a Houston solo, alleges in a petition he filed in Harris County 164th District Court that, as a result of a primary ballot drawing conducted by Birnberg on Jan. 7, his name should be first on the primary ballot for County Criminal Court No. 13. However, Slate alleges in Dennis M. Slate v. Gerry Birnberg, et al. that his primary opponent, John V. O’Sullivan, is listed first on the official Democratic Primary ballot that Slate alleges was made public on Feb. 4 by Harris County Clerk Beverly Kaufman and her office.

Meanwhile, in Javier Valenzuela v. Gerry Birnberg, et al., also filed today in Harris County 334th District Court, Javier Valenzuela alleges he should have been listed on the ballot before his primary opponent, Damon Crenshaw, because of the Jan. 7 primary ballot drawing. Crenshaw and Valenzuela are seeking the nomination for judge in County Civil Court-at-Law No. 3.

Slate and Valenzuela each allege in their petitions that Birnberg has “refused” to correct the errors on the ballot, and they allege they will be “irreparably harmed” by the ballot order.

“It is a well known fact that many times candidates in the first position will receive additional votes based entirely on them being located in the first position,” Valenzuela alleges in his petition.

I’ve heard that, and though I’ve not seen any studies, I believe it’s likely to be true. I can’t evaluate these suits on their merits, but I will say that it’s ridiculous to me that in the age of electronic voting machines we’re still drawing for and arguing over ballot position. There’s no good reason why they can’t be programmed to randomize the ballot order so this issue is moot. Yes, I know, the eSlate machines we have are not able to do that, but as Sue Schechter noted in her interview, we’ll be getting ready to buy their replacements soon. I for one would like to see this capability made a requirement for the next machines. If that means existing elections code needs to be altered to allow for it, then I hope someone will take it up in the next Legislature. There’s just no reason to go through this.

Eversole opposes Wilson

In his appeal to stay on the ballot after HCDP Chair removed him for not putting in a valid residential address, Dave Wilson contended that only County Commissioner Jerry Eversole, as his opponent on the ballot, has standing to challenge his filing. Apparently, Eversole was listening.

Eversole’s attorney submitted a letter to the 14th Court of Appeals on Friday in support of Harris County Democratic Party Chairman Gerry Birnberg, who refused to certify Wilson as a candidate after concluding that Wilson does not live at the address reported on his filing documents.


“Wilson called him (Eversole) out,” Eversole consultant Allen Blakemore said when asked why the commissioner entered the Democrats’ internecine fight. “He’s answering an invitation from Wilson.”

All righty, then. What else you got, Dave?

Wilson appeals being booted from the ballot

As expected, renowned homophobe and attention whore Dave Wilson has filed suit to fight being booted from the Democratic Party ballot for County Commissioner.

[HCDP Chair Gerry] Birnberg declared he would not certify Wilson for the ballot because he reported a business address instead of a residential address as required by election law. The move left Eversole without a challenger from either party as he seeks a sixth term on Commissioners Court.

Wilson insists that he lives at his business address, but he said his appeal makes the case that Birnberg does not have the authority to keep him off the ballot even if he submitted a bogus address. Only someone with legal standing — and that would only be Eversole — could make such a challenge, Wilson argued.

I’m no lawyer, but isn’t it always the County Party chair who determines if a primary filing is legal? I would think this argument would have been used before now if it were meritorious, but maybe there’s just never been a case like this one. Any actual attorneys want to offer a viewpoint on this?

Wilson will contest being dumped from the ballot

Can’t say I’m surprised. If Dave Wilson had taken getting booted from the ballot lying down, he’d be the first candidate in my memory to have done so.

“I’m almost embarrassed for Gerry Birnberg,” Wilson said. “He’s jumped to a conclusion that I don’t live at 1512 W. 34th St., but, indeed, I do.”


Texas Election Code requires that a candidate’s application for a place on the ballot include his or her residence address. Birnberg said that when he met with Wilson on Thursday, the candidate mentioned that he actually lives in a home on Lake Lane. Property tax records list the owner as Connie J. Wilson.

Wilson said he is separated from his wife and lives in an apartment at his business address. Wilson’s voter registration lists his address on W. 34th.

Wilson said he will ask Birnberg to reverse his decision, and if Birnberg does not, he will contest it in court.

Birnberg insisted that election law gives him no discretion to make a judgment call. The language of the statute states that if the application does not meet requirements, the party must reject it. Had Wilson filed with a day or two to spare, Birnberg said, the party may have caught the error with time for Wilson to correct it before the deadline.

“It’s his decision to file at the last minute that’s the (cause) of the problem,” Birnberg said.

I never can tell how these things are going to go once they get to a courtroom, so I’m just going to sit back and wait to see what happens. As always, if you have any expertise in these matters, or if you just feel like taking a guess, please do speculate in the comments.

Wilson booted from ballot

HCDP Chair Gerry Birnberg has sent a letter to noted hatemeister Dave Wilson telling him that he did not qualify for the Democratic primary ballot because his application did not list his residential address, as required by law. Assuming Wilson does not file a suit to contest this, it means County Commissioner Jerry Eversole gets a much-undeserved free pass in this year’s election. It also means the Democratic slate isn’t polluted by Wilson’s rancid presence, which is the greater good. May this be the last time I ever have to type the name “Dave Wilson” into a blog post.

HCDP Message re: Coalition of Harris County Democratic Elected Officials

The following is a message from Harris County Democratic Party Chair Gerry Birnberg regarding the endorsement list of the Coalition of Harris County Democratic Elected Officials.

Now that the filing deadline has passed and we have a record number of Democrats seeking elective office – many of them in contested primary races – various clubs, organizations, groups, and individuals (or groups of individuals), including precinct chairs, will be making recommendations or endorsements concerning who they think voters should select in the primary election, many after interviewing the candidates or obtaining questionnaire answers from them.

I just want to remind everyone that the Harris County Democratic Party does not endorse candidates in contested primaries. If you hear of an endorsement by some Democratic club or some Democratic elected official or group of elected officials or some Democratic organization or some precinct chair, please do not be confused: that endorsement does not constitute the endorsement of the Harris County Democratic Party or of the 2010 Harris County Democratic Party Coordinated Campaign and it is not made on behalf of, or at the behest of, HCDP, nor does it indicate HCDP agreement or approval. The folks at the Harris County Project, which plays a substantial role in electing Democrats countywide in the fall, have asked me to inform Democrats that that group also does not endorse candidates in the primaries, and it has not participated in any process to favor or disfavor or endorse any candidates in the primary election. The role of the Harris County Project (and that of the Harris County Democratic Party) is to win elections in the fall, not to promote contested candidates in the spring.

Organizations and individuals (including precinct chairs) are entirely free to endorse candidates of their choosing (so long as they do not publically support or endorse a candidate seeking the Republican Party’s nomination for office). In fact, the fact that certain groups or individuals have endorsed particular candidates may be very helpful to some voters in deciding which candidates they wish to support with their votes, dollars, or efforts. But the Harris County Democratic Party does not engage in those activities, and wants to be sure there is no confusion over that fact.

Gerry Birnberg
Chair, Harris County Democratic Party
January 7, 2010

So now you know.

Stay away from Hotze

The following is a message from HCDP Chair Gerry Birnberg:


Steven Hotze is a hatemonger.

For nearly twenty five years he has stoked the flames of bigotry in this community like no other local politico. In the mid-1980’s he masterminded the repeal of the City of Houston non-discrimination ordinance which had been enacted by Mayor Kathy Whitmire and the Houston City Council. The following year, he fielded a group of right wing zealots to run for City Council on the “Straight Slate.” Their platform consisted of unadulterated gay-baiting epitomized by the reply of their mayoral candidate to a question of what could be done about the AIDS epidemic: “Shoot the queers.” Hotze would not repudiate that response, nor the mayoral candidate who uttered it. Fortunately, they all lost.

Hotze continues vehemently to espouse his brand of extreme intolerance. For example, he regularly insists that the death penalty is fitting for homosexual conduct. And in 2008, he insisted, without one iota of evidence, that gays and lesbians were devoted to “recruiting sexually confused adolescents into their lifestyle.”

Hotze’s bigotry and extremism are not confined to homophobia. His anti-women beliefs are evidenced by his strident insistence that “a wife may work outside the home only with her husband’s consent.” And in 2008, he was reportedly behind the financing of a blatantly racist piece of campaign literature which depicted Barack Obama, Harold Dutton, Congressmember Sheila Jackson-Lee, and the Anglo Democratic candidate state legislature in House District 144, and an ominous line of black crows on a dead tree, with the caption “birds of a feather flock together.” Maybe he wasn’t the person who arranged financing for that shameful piece as has been suggested, but the political consultant with whom he has worked for years was the author of the flyer.

And Hotze is virulently anti-Obama and ardently anti-Democrats. He intently opposes health care reform. And on November 12, 2009, he sent an e-mail across Texas in which he disclosed his commitment to defeating Democratic state legislative candidates in the 2010 elections, asking, “Will we continue down the road of socialism, universal health care, and the leadership of Obama / Pelosi / Reid? Or will conservatives finally stand united and declare ‘Enough!’ in the face of economic and moral starvation?”

Anyone who is as dedicated to destroying the Democratic Party and crushing its candidates and unyieldingly opposed to the anti-discrimination principles of the Democratic Party as is Steven Hotze cannot be embraced by Democrats.

It has been reported that before the November election, more than one Democrat still running for city office in the December 12 runoff sought the support of Hotze or one of the gay-baiting groups with which he is associated. The Houston Chronicle has recently called on all candidates to repudiate the hateful and divisive rhetoric of these folks. (Do The Right Thing – It’s time to disavow the politics of discrimination and bgotry. Click here to read.)

I do, too.

Hotze did not endorse the Democratic mayoral candidate who sought his endorsement before November. Instead, he threw his support to the Republican in the race, Roy Morales. And the Democratic mayoral candidate who solicited Hotze’s help before November has publicly condemned the “divisive rhetoric” and “style of campaigning” Hotze has always embraced. Good for him.

But all candidates – judicial, city council, and mayor – take heed: whether in the December 12 runoff election, the March, 2010 primary election, or the November, 2010 general election, accepting support from anyone who, like Steven Hotze and the right wing extremist groups with whom he is associated, spews homophobic rhetoric, racial hatred, and intolerance, who would subjugate women to the dictates of their husbands, and who is working tirelessly to destroy the Obama administration, block heath care reform, and defeat Democratic legislative candidates would be anathema to Democrats and contrary to the cherished ideals for which we stand. Courting endorsement from such despicable individuals or groups – or failing unequivocally to repudiate and reject it should such support be unsolicitedly bestowed – would be reprehensible, condemnable, and utterly unacceptable to Democrats.

My Dad used to say, “You lie down with dogs, you get up with fleas.” He was right.

Gerry Birnberg
Chair, Harris County Democratic Party
November 17, 2009

I could not agree more.

Settlement reached in Harris County voter registration lawsuit

You may recall the lawsuit that was filed back in December against Paul Bettencourt and the Harris County Tax Assessor’s office over allegations that thousands of voter registration applications were rejected for frivolous reasons. That lawsuit has now been settled.

Gerry Birnberg, chairman of the Harris County Democratic Party, said the agreement will ensure the registrar’s office does not exceed the seven days state election law allows it to process a voter registration application or send the applicant a letter explaining why he or she was not registered.

“The bottom line is this resolution should make the voter registration process more efficient, fairer and easier for qualified citizens wanting to register to vote,“ Birnberg said. “It should ensure more of them will be accepted and be processed in time to be able to vote.”

Birnberg said the settlement — reached after mediation between party officials, the registrar’s office and the county attorney’s office — will eliminate the technical challenges the local office made to applications for voter credentials.

The Quorum Report has more details:

The plaintiffs had been seeking to review the 70,000 rejected voter registration applications in the belief that hyper-technicalities had been used to systematically disenfranchise certain classes of eligible voters. Harris County had rejected more than 30 times the number of voter registrations as had Dallas County in the same period.

The settlement is being formalized tonight but Special Assistant County Attorney John Odom told QR that the plaintiffs dropped their efforts to review historical documents for improprieties in exchange for enumerated procedures that prevented future voter registration rejections based on the issues about which Democrats had complained.

In addition, the settlement prohibits county election officials from moonlighting in political businesses. The former #2 voter registration official Ed Johnson was suspected by Democrats of both improperly rejecting applications and using information obtained in his official position for his political consulting partnership with state Rep. Dwayne Bohac.

Works for me. I would have liked to pursue that historic review, but what was gotten in trade for it seems like a good deal. If it helps prevent what happened before from happening again, it’s well worth it.