A Democratic lawyer’s latest argument filed late Friday in the eligibility case of State Sen. Brian Birdwell, R-Granbury, accuses the lawyers for the GOP candidate of using a landmark Waco case “as a smoke screen” to show he meets a residency requirement.

The Democratic Party and Democratic challenger John Cullar sued to have Birdwell removed from the ballot last week. The suit calls on State Republican Party chairman Steve Munisteri to take Birdwell off the general election ballot and argues Birdwell gave up his state residency when he registered to vote in Virginia and cast ballots in that state in 2004, 2005 and 2006.

The Texas constitution requires state senators to be state residents for at least five years.

A 2000 case involving then-Waco City Council candidate Mae Jackson (left) is being offered as precedent by attorneys for state Sen. Brian Birdwell (right).

In Birdwell’s response to the Democratic challenge, which was filed in Dallas’ Fifth Court of Appeals on Thursday, his attorneys pointed to the case of former Waco Mayor Mae Jackson.

Waco’s 10th Court of Appeals ruled in 2000 that Jackson was eligible to run for city council despite having voted in a statewide election using her old Chalk Bluff address.

Jackson had bought a lot in Waco and, according to her attorney, lived in her council district with a friend while her home was being built.

In its opinion the court ruled Jackson eligible, citing old state “voting laws (that) permit a voter to cast a ballot in her former precinct.”

Chad Dunn, the Houston-based attorney for the Democrats, wrote that in Birdwell’s case there is no equivalent “statute in Texas or Virginia that allows a person to vote in Virginia and maintain a residence in Texas. In fact, doing so is a crime in both states.”

Greg White of the Waco law firm Naman, Howell, Smith & Lee said Birdwell’s attorneys “are not being 100 percent candid with their explanation of that case.”

“There was a statute that said Jackson could vote in her old precinct,” White said. “Birdwell doesn’t have a statute that says he can vote back in Virginia.”

Matkin, who represented Jackson, said comparisons between Birdwell’s and Jackson’s situations aren’t apt.

“The situation in Mae’s case was actually very different,” said Matkin, now the McLennan County district clerk. “It’s just such a different ballgame when you talk about (a candidate moving) from state to state.”

Without the Jackson case as precedent, the Democratic rebuttal argues, Birdwell’s voter registration and history in Virginia show he was a resident of that state as late as 2006, and therefore ineligible.

But attorneys for Birdwell and Munisteri also asserted in separate responses Thursday that the Democrats should have named Henry Teich, the Johnson County Republican Party chair, not Munisteri, in their suit.

The responses assert Teich — who chaired a panel of GOP county party chairs that nominated Birdwell — is responsible for certifying Birdwell on the ballot. As a result, the argument continues, Teich is solely authorized under state law to remove Birdwell from the ballot if he’s ineligible.

Friday’s rebuttal from the Democrats contends that Munisteri is, in fact, the official tasked with removing ineligible candidates.

But it acknowledges that state law is vague on the point of who has the authority to remove a replacement nominee. As a result, the rebuttal adds Teich to the suit.

mshapiro@wacotrib.com

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