Dallas’ Fifth Court of Appeals shut the door on a Democratic effort to pull state Sen. Brian Birdwell off the general election ballot.

A three-judge panel Thursday denied a petition filed by Democratic nominee John Cullar, D-Waco, and the Texas Democratic Party to have Birdwell, R-Granbury, declared ineligible.

Today is the last day under state law that Birdwell’s name could have been removed from the ballot.

Brian Birdwell was successful in his fight to stay on the November ballot for state senate.
Rod Aydelotte/Tribune-Herald

The Democrats argued Birdwell doesn’t meet a five-year state residency requirement for Texas senators, citing as main evidence Birdwell’s Virginia voter registration form and his voting history in that state from 2004-06.

The ruling does not take a position on whether those records are enough to determine Birdwell’s eligibility.

Instead, the justices said the Democrats skipped a step by not directly presenting their evidence to the GOP official responsible for placing Birdwell on the ballot before bringing suit.

The court also said the voting records and Virginia fishing licenses were submitted in an improper format. The documents were photocopied and “not properly sworn or certified,” the order said.

“I was flabbergasted,” Democratic election lawyer Buck Wood said of the ruling.

Wood said the photocopy issue has come up in numerous cases he has argued, and courts have been willing to consider copied documents as long as opposing attorneys do not question their accuracy.

Birdwell’s attorneys did not dispute the validity of the Virginia records.

Wood also said the court misinterpreted Texas law on writs of mandamus, the legal mechanism Democrats used to try to compel Republican Party of Texas Chairman Steve Munisteri to take Birdwell off the ballot.

Wood said state law granted Munisteri a chance to see and review documents alleging Birdwell was ineligible.

But he argued the lawsuit provided Munisteri, as well as Johnson County GOP chair Henry Teich, who headed the committee that nominated Birdwell, the chance to act.

“This is really, really bad law,” he said.

“I’m thrilled with today’s win,” Birdwell said in a statement, “and pleased that the court clearly saw through this desperate attempt by the Democrats to thwart the will of the voters and win a Senate seat through judicial activism.

“Two things should be obvious to everyone by now: First, I live here, and I am legally qualified to represent the good people of Senate District 22.”

The Democrats did not appear convinced.

A Democratic Party statement blasted the ruling and called it “an overtly political decision using technicalities and loopholes to avoid ruling that a Republican officeholder is ineligible.”

The Dallas court’s panel of Jim Moseley, Doug Lang and Lana Myers are all Republicans.

Cullar said he was “disappointed” upon learning of the ruling but was upbeat in one sense.

“At this point, I remain the only candidate in this race whose eligibility is not in question,” he said.

Munisteri, for his part, interpreted the decision as validation of Birdwell’s residency claims.

“(T)he Republican Party was always confident that Sen. Birdwell is and has been a resident of Senatorial District 22 for the requisite period of time,” Munisteri said.

Remaining option

With the ruling, the Democrats have no practical way to remove Birdwell from the ballot. But they still can seek to have him declared ineligible in court.

If such an effort were successful, but Birdwell went on to win the election in the conservative district, a special election would be held for the seat.

Democratic Party spokeswoman Kirsten Gray said “we’re looking at the options with our attorneys.”

But because the Dallas court’s ruling came Thursday, an appeal to the Supreme Court couldn’t be ruled on before today’s deadline.

McLennan County Republican Party chair Joe Hinton said he is pleased to have Birdwell locked in as the party’s candidate after a period of uncertainty.

Birdwell faced Waco Republican and former Sen. David Sibley in a heated runoff election that broke down on geographical lines.

Sibley and a number of his backers argued strenuously during that race that Birdwell was not eligible.

“We’d just been floating around and not a lot was happening, and in the meantime a lot of rocks were being thrown from both sides,” Hinton said.

“I hopes this brings some closure, and, from my perspective, this is good news.”

mshapiro@wacotrib.com

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