The newest member of the Texas Senate and Waco’s newest representative to that body, Granbury Republican Brian Birdwell, voted in the November 2004 presidential election twice — an apparent violation of law — making his choice between George W. Bush and John Kerry in Tarrant County in Texas and again in Prince William County, Va., according to election records in the two states.

Birdwell’s record of voting in Virginia from 2004 through 2006 would seem to place his residency in that state — and not in Texas.

And that could imperil his spot in the Legislature.

To serve in the Texas Senate, a candidate must by law reside here for at least the previous five years.

Birdwell voted on a Virginia ballot in November 2006. If that’s enough to establish him as a Virginia resident, an issue that would have to be settled in court, it means he’s not eligible to serve in the Texas Senate until at least November 2011.

During a special runoff election in June, Birdwell’s opponent, former state Sen. David Sibley, of Waco, ultimately chose not to pursue a legal challenge over eligibility.

“I thought I’d win, and I thought the election would be over before the courts made a decision,” Sibley told the Tribune-Herald on Tuesday.

Voting in the same election twice is a third-degree felony in Texas.

Birdwell didn’t respond to numerous requests for an interview, though his former campaign aide and now Senate chief of staff, Casey Kelley, requested and received a copy of the documents in question to brief his boss.

“These questions have been asked and answered by the voters of SD-22. My candidacy was certified by the secretary of state. My case was upheld by an appellate judge,” Birdwell said in an e-mail statement.

“I was elected overwhelmingly by the people. I was sworn into office by both the governor and lieutenant governor of Texas, and I just received a unanimous vote to be the Republican nominee for November. I think it’s time to move on now and get down to the business of serving the people of SD-22.”

Path to the state Senate

Birdwell bested a field of four other candidates who sought to succeed Sen. Kip Averitt, R-Waco.

Averitt filed for re-election last year and changed his mind after it was too late to get off the ballot. He didn’t campaign but easily won the GOP nomination in March.

He then resigned, forcing a special election for the remaining months of his term. Birdwell faced Burleson businessman Darren Yancy, Sibley and Gayle Avant, a Baylor University political science professor.

Birdwell finished second in the first round of voting but prevailed in last month’s runoff against Sibley. Averitt withdrew his name from the nomination, and a majority of the district’s county Republican chairs voted last week to replace him on the November ballot with Birdwell.

Talk of Birdwell’s eligibility has been part of the race all along, attracting news coverage and generating talk in political circles.

State law requires senators to have lived in the state for five years before they take office and to have lived at least the last 12 months of that time in the districts they seek to serve.

Two years ago, Birdwell was encouraged to run for the Texas House against state Rep. Jim Keffer, R-Eastland.

He opened a campaign account with the Texas Ethics Commission but withdrew before filing for office.

House members have to live in the state for at least two years. The issue then was whether Birdwell, who returned to Texas from Virginia in 2007, had been around long enough to qualify.

If that date is the standard now — it’s not, necessarily — he’d be too new to the state to qualify for the Senate with its five-year residency requirement. Another, earlier date — November 2006, when Birdwell last voted in Virginia — is the key to whether he’s a legal candidate or not.

“It’s a piece of evidence that’s hard to refute and usually fatal,” said Randall “Buck” Wood, an Austin lawyer respected across the political spectrum for his mastery of election law.

The residency question, as Wood sees it, puts the courts in the position of deciding whether someone did something illegal — voting in an election in a place where they don’t reside — or is simply ineligible to run in another place because of that vote.

He thinks most judges would choose the second rather than deciding the candidate in question did something criminal.

Lawyers for the Republican Party haven’t looked into Birdwell’s case, according to a party spokesman who said that was left to the campaign.

Texans for Lawsuit Reform, which backed Birdwell in the special election, did research the residency question and decided he is eligible, according to Sherry Sylvester, a spokeswoman for TLR.

“We have endorsed Senator Birdwell, and we have contributed to his campaign,” she said. “We have reviewed the questions surrounding his residency and, like 58 percent of the voters of Senate District 22 and the eight county chairs who nominated him over the weekend, we believe he is a Texas resident.”

Political residency isn’t purely a matter of where a candidate is sleeping every night.

Soldiers stationed all over the world, for instance, still can vote in American elections.

But registering to vote in a place generally establishes residency in that place.

Birdwell’s problem isn’t that he was sleeping in Virginia for all those years — especially when he was on active duty in the U.S. Army — but that he was voting in local elections there just like all the other Virginians.

Birdwell was working in the Pentagon on the day of the Sept. 11, 2001, terror attacks. He was critically burned when terrorists dove a passenger jet into that building and spent years in Virginia receiving the medical care he needed, first to stay alive, and then to be nursed back to health.

He remained in the Army until June 30, 2004 (he’s now a retired lieutenant colonel), and he and his wife, Mel, bought land southwest of Fort Worth in October 2005, built a house and moved back to Texas from Virginia in May 2007.

In January 2003, according to the Texas Secretary of State’s office, he incorporated Face the Fire Ministries — a nonprofit organization set up to help burn victims and their families.

He’s an accomplished motivational speaker, too.

Many Texas Republicans heard him for the first time at their state convention two years ago and came away thinking they’d just seen a strong future candidate.

He bore that out in his first run at elected office in the special election earlier this year, beating Sibley, a seasoned, well-financed and well-known establishment Republican endorsed by former President George W. Bush.

Election violation?

Voting twice in the same election is against the law.

Birdwell was registered as a resident at his parents’ address in Fort Worth, and Tarrant County records show him voting in general elections in 1998, 2000, 2002 and 2004.

He also voted, according to the county, in the Republican primary and primary runoff in 2000, and in a city election that same year.

That list includes two elections after Sept. 11, when Birdwell was living and being medically treated in Virginia while continuing to vote in Texas.

Voting records in Virginia, unlike those in Texas, aren’t available to the public. But Birdwell’s records — released to the candidate himself, according to Virginia election officials — turned up in a filing on behalf of Sibley with the Texas Secretary of State designed to thwart his candidacy earlier this year.

That office, as is its custom in cases that involve findings of fact, simply filed the papers away and allowed Birdwell to remain on the ballot, and his opponents never took the issue to court.

According to those voting records, Birdwell lived in Manassas, Va., and registered to vote there in February 2004. According to Prince William County records, he voted in the general elections there in 2004, 2005 and 2006, and in the Republican primary in 2005. Texas state elections are held in even-numbered years; Virginia’s are in odd-numbered years.

Birdwell canceled his Virginia registration in June 2008. He registered to vote in his current location — Hood County — in June 2007 and has voted there ever since.

It’s not illegal to register to vote somewhere without canceling the old registration. But both counties — the one in Texas and the one in Virginia — show Birdwell voting in the November 2004 election.

That’s against the law but has apparently never drawn official attention.

Election officials in Texas and in Virginia said they weren’t aware of records that Birdwell cast two ballots in the same election.

Residency issues are generally left to the courts, which means they are generally left to a candidate’s opponents, who can decide whether the facts and the political risks of a challenge are worthwhile.

In his application for a spot on the ballot, signed by Birdwell at the end of March of this year, there’s a spot where the candidate is asked how long he’s lived in the state, in the county and in the district.

Birdwell listed 36 years, seven months in the state; and two years, 10 months for the county and district. That would satisfy the requirements of five years in Texas and a year in the district.

In Birdwell’s case, none of his special election opponents took it to the courthouse, though some of them promoted questions on the subject when talking to reporters and others.

An attorney for Sibley filed Birdwell’s voting records and other documents with state election officials, asking them to disqualify Birdwell.

After the Secretary of State’s Office stored those away, all that was left was talk and news reports along the way. But the filing at SOS supplied the factual underpinning for the argument against Birdwell’s Texas residency.

In addition to some of Birdwell’s voting records, that package includes his “resident state fishing permit” from 2006 and another from 2008 for which he paid the Virginia resident rates — lower than those paid by out-of-staters.

Those fishing licenses include this notice: “I certify that the person named on this license meets residency requirements, is eligible to buy this license, and all information on this form is true to the best of my knowledge and belief.”

That might or might not be strong evidence in a legal residency case, but it’s spice for the political argument about whether Birdwell’s candidacy is legitimate.

And Birdwell attempted to address the residency questions himself, filing in Hood County District Court for a declaratory judgment earlier this year to settle the controversy over his residency.

His filing included his military records and records of his property interests in Texas.

It didn’t include his Virginia or Texas voting records, though his pleading makes reference to his voting, paying property taxes, the recreational licenses and so on.

And, it asserts, “Just because Colonel Birdwell owned a home and voted in Virginia does not conclusively establish anything regarding the elements proving Texas residency under Texas law.”

He got the judgment he sought, though no other parties testified or brought evidence.

Now, he’s elected to a term that ends in January, and he’s the Republican nominee for the two-year term that begins that month.

Republicans could replace him if he were to withdraw or be disqualified before Aug. 20, but candidates can’t be removed from the ballot after that date.

Those deadlines, combined with questions of whether Birdwell is eligible, potentially give ambitious candidates from either party another chance at winning a seat in the Senate.

Both parties have lawyers examining the case and the dates, and political folk — either working in Birdwell’s defense or against him — are surveying the field for possible opponents.

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Link: TexasTribune.org

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