The Undead

Three Republicans who apparently lost on Election Day are officially questioning the results, contending the numbers at the bottom of the ledgers in those contests don't reflect the legal votes. A fourth who was considering a challenge decided to let it rest.

Rep. Talmadge Heflin, R-Houston, lost to Hubert Vo by just 32 votes in HD-149. When the official canvass was over, he lost the chairmanship of Appropriations — the most powerful committee in the Texas House. He asked for a recount, and when that was done, the margin increased by one vote when recounting was done. Vo ended up with 20,695 votes, beating by 33 votes.

Heflin is contesting the results in the House. On Thanksgiving Eve — before the recount had even started — he filed papers with the Texas Secretary of State to ask the House to examine the election and decide whether he lost a fair and honest fight. His lawyers say they found more than enough irregularities to bring the results into question. Heflin said the lawyers found evidence that at least 32 people voted twice in the election, and that out-of-county voters were allowed from as far away as Denton County. Vo responded by saying he's getting ready to take office and said the incumbent is trying to use his power in the House to overturn the decision of the voters.

We'll save some ink and condense days of hollering into one sentence: The Republicans backed Heflin and the Democrats backed Vo. When the shouting quiets down, there's a legal argument and a political one, and the players on the Heflin side are still working this out.

The legal argument is simple: Could illegal votes have tilted the election? Were enough legal votes not tallied to spoil the result? If so, there's a basis for a challenge. Anybody in politics will tell you that a candidate just has to recount if he or she is within three dozen votes in an election that drew more than 40,000 voters. And you can make a logical argument for filing suit over an election if the number of potentially tainted votes is greater than the margin of victory. That's what the House will have to decide if Heflin & Co. go forward.

The political argument is trickier and can be described with a series of unanswered questions.: Is a win worth the fight it would require? Would a contest be more damaging to Heflin's team in the House than his continued presence merits? Is adding one member to a 24-member majority worth the PR victory a contest might give the Democrats? Is it good for the leadership? If you think the election was dirty, is it dangerous to let the result stand without a challenge? If the House decides the first election was fouled, could you win a second contest? And could you get the same result, more or less, if you just went home, planned a new campaign, and tried a comeback in two years?

The House has only thrown one election back to voters in the last three decades and the voters made a more emphatic decision in the same direction the second time around. It's tough even with good facts to get politicians to overrule voters. Democrats are licking their chops over the prospect of three election contests from losing Republicans. Republicans are outraged at the idea that cheating should be allowed because it would be bad politics to challenge it.

As a practical matter, Heflin is out of the game this session. A successful election challenge could have one of two outcomes: The House could look at the facts and vote to seat him instead of Vo, or they could decide the outcome can't be decided and order a new election. By the time that's done, the House budgeteers will be well into their work, and even if Heflin comes back, House Speaker Tom Craddick has already given his position at the head of the Appropriations Committee to Rep. Jim Pitts, R-Waxahachie. He could win back his seat, but probably not his position in House leadership.

More Tales From the Election Crypt

As it stands now, recounting didn't change the final outcomes of any races for the Texas House, but three Republicans who lost have filed challenges asking the House itself to look at the elections for foul play, miscounting, letting illegal voters in and keeping legal ones out, and so on.

Contests are rare, but not unusual. In fact, an election contest that went to court earlier this year overturned U.S. Rep. Ciro Rodriguez's Election Day win over fellow Democrat Henry Cuellar of Laredo. The recounting and the court fight after that resulted in a Cuellar win in the primary and he easily won the general election. Rodriguez, who went to sleep on a win in March, is staying home, and Cuellar's off to Congress.

Contestants in Texas House and Senate races appeal questionable elections to the Legislature instead of the courts, but it's the same concept. In addition to the Vo-Heflin result:

• In HD-35, Yvonne Gonzalez Toureilles of Alice got 23,165 votes and Eric Opiela of Karnes City got 22,316. That's a difference of 849 votes. Toureilles lost in five of those counties, but won in the two biggest and that was enough to carry her over the top. He's filed a challenge.

• In Austin's HD-48, Republican Rep. Todd Baxter still came out 147 votes ahead after Democrat Kelly White asked for a recount. There's no challenge in that contest, and Baxter can exhale.

• Rep. Jack Stick, R-Austin, lost to Democrat Mark Strama on Election Day and didn't ask for a recount. But he says in papers filed with the Secretary of State that his camp couldn't get local election officials to give them the information they needed to decide whether to seek a recount, and so he filed an election contest. He said he'll withdraw the contest if the information, once obtained, shows him a contest or recount wouldn't matter. Strama won by 569 votes (out of 64,623 cast).

That filing was odd: Thanksgiving Day was the deadline for election contests to be filed, but the Secretary of State's office wasn't open. Stick filed by fax and his challenge was sitting in the tray when officials returned on Monday. Though they wanted everything filed by the end of the day on Thanksgiving Even, they decided that was a legitimate filing.

• Rep. Ken Mercer, R-San Antonio, talked about a recount and talked about an election challenge, but decided in the end not to pursue either of them. He lost to Democrat David McQuade Leibowitz by 498 votes. In a statement, Mercer said he believes "voter fraud and voter brokering" is going on in Bexar County and said he'll try to get state officials to increase the penalties imposed on people caught cheating in elections. But he'll live with the results that came out of the election canvass.

And Now What?

House Speaker Tom Craddick will appoint a "master of discovery" for each election contest. That has to be a House member (remember that Lt. Gov. David Dewhurst, who went through all this two weeks earlier, appointed Sen. Jeff Wentworth, R-San Antonio, to oversee an election contest involving Sen. Mario Gallegos, D-Houston). And Craddick also refers the contest to a committee. It can be a standing committee, a new one, or a committee of the whole. He doesn't face any deadlines: The law says he has to do it as soon as it's practical.

The master and the committee get busy, decide whether the contest is legit or should be dropped, and then gather evidence and testimony. They don't have to wait for the legislative session to begin before they get busy on the contest. They report their findings, with or without recommendations, to the full House after the legislative session begins, and the House decides what to do. If the committee's report isn't unanimous, dissenters can file minority reports for consideration by the House.

The candidate who asked for the contest can withdraw the request up to the time the committee report is filed. The contestant who won the election can't vote on the election contest. And the House has two choices when it makes a final decision. If they can determine who won the election, they have to seat that person. If they can't figure out who won, they have to send the mess back to the governor, who calls a new election to determine who gets to be a legislator. If the contest costs any money, the House can bill either party to the contest, unless one of them prevails. The prevailing contestant doesn't have to pay anything.

Unconstitutional, As Expected. Next!

State District Judge John Dietz already said the state's school finance system isn't up to snuff, and the lawyers for the state already said they would take his ruling to the Texas Supreme Court as soon as they could get their hot little hands on it.

Now, in over 130 pages and two documents, he's detailed the legal sins of the state's public school finance system and the state's lawyers are preparing their appeals.

We put the whole thing on our website for downloading, if you're inclined or required to plow through it. You'll need two files:

• www.TexasWeekly.com/documents/WOCFinalJudgment.pdf

• www.TexasWeekly.com/documents/WOCFindingsofFact.pdf

The judge said the state's "academically acceptable" standard isn't high enough to assure all students are getting the adequate education that state law requires. And the state funding that gets the schools to that first standard doesn't get them to the second, legally required one. The state's reliance on local property taxes for funding, and its limit on those tax rates, has school districts boxed into a system that leaves them no local discretion over what are supposed to be local tax matters.

He dismissed state-commissioned studies that were supposed to show the true costs of educating Texas kids as legally required. The studies, he said, underestimate those costs. He said the state's funding for facilities hasn't kept up with needs and said lousy buildings and equipment in poor districts impede education. He cited the state's own studies in documenting that point.

He said the weighting system used to adjust funding for special needs and bilingual education and the like is flawed and doesn't cover the costs of teaching harder-to-teach kids. And he criticized the state's measurement of high school dropouts, which makes it impossible to determine how many kids were educated and to what levels.

Dietz said the state should fix the problems by October 2005.

The School Finance Obstacle Course

Timing is a key issue. Some legislators think the House and Senate are intent on working out school finance — and the tax bills that go with it — without waiting for the state's high court. Others say the Legislature has never done this big a thing without a court order or a clear mandate from voters and think nothing will happen until the Supremes issue a ruling.

The first group includes the governor and the lieutenant governor and some strong players; the second group has history on its side and the native tendency of officeholders of every party to deny harsh medicine until death is at hand.

Fast action could get the immediate desire for property tax relief, easing pressure on lawmakers from districts that, under the current system, hit their local taxpayers hard for money that's often shipped off to other districts. If it fell just right, it might even convince the Supreme court that the problems outlined by Dietz have been dealt with or at least could be put off for another court hearing, more time, and less immediate controversy.

The risk is that lawmakers might pass a tax bill right away only to find the courts asking them, in effect, for another one later. It's hard to get interest groups lined up on a tax bill and difficult to get voters to like — or not hate — the idea. It's very hard to do it twice. The same barriers to all of this are still in place: Businesses don't want the burden shifted to them; cities and counties and hospital districts don't like the idea of capping property taxes that are a huge source of revenue for them. Some lawmakers don't like sales taxes and some don't like income taxes. That's all a way of illustrating how hard this is without a court order forcing everybody to get in line and make specific repairs.

As several political folks have pointed out, the amount of pressure for a fast solution differs from one officeholder to another. Gov. Rick Perry, with two fellow Republicans threatening to challenge him in a primary, could move a big, sharp knife out of their reach with a school finance and/or property tax fix. If lawmakers don't produce some relief for voters, especially in high-growth, wealthy Republican areas of the state, he and other incumbents could have primary fights on their hands.

The Time Value of Money

Add this bit to our story last week on federal legislation that would allow U.S. Sen. Kay Bailey Hutchison and other officeholders to move money from their federal campaign accounts to state accounts. Hutchison has been carefully avoiding any conclusive answers to questions about running for governor against Rick Perry next year, and the change in federal campaign finance law gives her more time to talk to people about such a contest without announcing a firm decision.

(Hutchison hasn't said she's running and hasn't said she isn't. Some tradecraft: Political folk are often asked about other offices they might be interested in holding. They usually say, 'Yes, they need me!' or 'No, are you nuts?' and that's that. If they're considering, they leave the question open, as in, 'I'm just trying to do my current job,' or 'Who but a political reporter would speculate so far ahead?', and that's more or less where the state's senior senator has been floating for the last eight months.)

That leaves us to speculate: A Republican primary for governor would be in March 2006 — about 15 months from now. State officials can't raise money during a legislative session or for 30 days before a session. That blackout starts December 11. That means Perry and other state officeholders will be out of the finance business for the first half of next year, leaving only nine months to raise and spend money for a campaign and to conduct that campaign.

With no change in federal law, Hutchison would be starting a state race with an empty tank. She'd have to choose between announcing soon and raising money during the legislative session (it's legal, since she holds federal office) or waiting until after the session and trying to raise a mess of money in a hurry. The change in federal law means her $6.6 million balance as of September 30 can be used in a governor's race, should she decide to run.

That allows her to wait until after the session, when she'll know whether Perry's performance on school finance, taxes and other issues is a winner or a loser with Republican voters. If Perry has a good session and she thinks he's too popular to challenge, she won't be out on a limb and can use the money to run for reelection or something else. And if he's in bad shape, she'll have both the bank account and the rationale for a gubernatorial campaign.

More on the Year After Next

We're not the only people with 2006 on the brain. Agriculture Commissioner Susan Combs, in a pitch to potential contributors before that December 11 deadline, says flat out she'll be seeking a new job: "Next June, I'll formally begin my campaign for Texas Comptroller." That office is occupied by Carole Keeton Strayhorn, who hasn't announced any plans. Strayhorn has done everything but announce her plans, but that could be an important difference. The comptroller has indicated a desire to be governor, declaiming periodically against Gov. Rick Perry, but has stopped short of saying she'll run for the office. Combs, meanwhile, has said she won't run for reelection at agriculture.

Her standard line to this point has been that she'll run for comptroller and doesn't expect Strayhorn to seek reelection. But there's always been an implied "if," and now that seems to have come out of the script. Here's another line from her fundraising pitch: "Now, with the help and encouragement of my husband, Joe, my family and my friends, I’m taking on a new challenge: running in what is expected to be an open Republican primary for Texas Comptroller."

• Railroad Commissioner Charles Matthews is on the list of chancellor candidates for the Texas State University System, but the regents there have taken longer than expected to make a decision. Matthews isn't commenting about his plans. He'll apparently have his PhD within a few weeks, so the credentials will be in order, and the speculation about who would be appointed in his place can begin then. Gov. Perry would appoint a replacement to hold the office until the next election. An early name in the mix: Sen. Todd Staples, R-Palestine, who's also mentioned as a possible candidate to replace Combs at the Texas Department of Agriculture.

He's Baaaaaack.....

John Keel is the new state auditor. After weeks and weeks outside state government, Keel, the retired Legislative Budget Board director, is returning to state government. He was chosen by the Legislative Audit Board, which includes House Speaker Tom Craddick, Lt. Gov. David Dewhurst and key legislators from each chamber — to replace State Auditor Larry Alwin.

Keel is a certified public accountant, meeting a job requirement that barred some candidates who might have been in the running otherwise. He headed the LBB for ten years, and before that, worked for the late Bob Bullock when Bullock was lieutenant governor and before that, comptroller. He worked for other agencies along the way (he started in 1973), including the Texas Water Quality Board and the Office of the Attorney General. He was a private sector accountant for most of the 1980s.

Keel's wife is Lara Laneri Keel, a lobbyist with the firm formed when lobsters Bill Messer and Mike Toomey merged their practices. And if you're old enough to get snagged on the names, he was the second of his ilk to head the LBB: His uncle, Tom Keel, headed that legislative agency from 1966 to 1982, when he retired. Keel's old job has not been filled. He left the LBB in June and Dewhurst and Craddick and the lawmakers on that board haven't agreed to a replacement. Another key legislative agency is currently headless: The Texas Legislative Council, sort of an in-house law firm that drafts bills and makes the lawmaking trains run on time, remains open. The public posting inviting applicants for that job is dated January 26, 2004, more than ten months ago.

Political People and Their Moves

Alicia Key is the new director of child support (2,600 employees, 83 offices) for Attorney General Greg Abbott. Key has worked on those issues in Texas since 1989, and was general counsel of the division until 2002, when she left for the Office of Court Administration. She's replacing Cynthia Bryant, who ran Child Support for three years and who is now teaching at the University of Texas Law School...

Kristie Zamrazil is leaving external relations at the Health and Human Services Commission for the Texas Pharmacy Association, where she'll be lobbying. Her boss, Sharon Carter, announced her own departure several days ago...

Marjorie Wall is leaving the Texas State Teachers Association at the end of January, after 25 years; she's been on the lobby team there since 1985. That's two veterans gone; we noted last week that Jay Levin, head of that lobby team, is leaving. TSTA hasn't named replacements for either of them...

Tiffiny Britton, a former chief of staff to Sen. Steve Ogden, R-Bryan, and most recently, a fundraiser for political campaigns (including Republican Arlene Wohlgemuth's well-financed but unsuccessful bid for Congress), is joining the Edelman PR firm. She'll be in the Austin office, but will be working on projects in both the Texas and national capitols...

Guess Who's Coming to Dinner: Gov. Rick Perry, while in Washington, D.C., to talk to Pentagon types about base closings and expansions, got a dinner invitation from political pundit George Will and his wife, Mari, to sit down with a group of national political reporters and get acquainted...

Births: Rebekah Matilda Rose Besserman, to Kenneth and Anna Besserman. Dad is chief of staff to Sen. Rodney Ellis, D-Houston...

Political People and Their Moves, Appointments Division

Gov. Rick Perry named C.S. "Dusty" Rhodes of El Paso to the Texas Veterans Land Board. Rhodes is an Army veteran who also worked for El Paso Electric as a computer guru...

Perry named Jack Stibbs Jr. of The Woodlands to the board of the San Jacinto River Authority. Stibbs is an energy lawyer...

The governor named Ralph Rayburn, the associate director of the Texas Sea Grant Exchange program, to the Gulf States Marine Fisheries Commission. That group includes people from Texas and four other states along the Gulf of Mexico who watch over "fishery resources"...

Perry named Richard Rogers of Euless, a bug-killer by profession, to the Texas Structural Pest Control Board...

Dorothy Farrington Caram of Houston will join the Texas Commission on the Arts. She's a former teacher and assistant to the president of the University of Houston...

Perry named George Buchenau Jr. of Amarillo to the Texas State Board of Nurse Examiners, which licenses and regulates nurses and nursing schools in the state. He's the executive director of Interim Home Healthcare...

The governor tapped Linda Bell Robinson of Houston for a spot on the Texas Family and Protective Services Council. She's a former cop, and also a criminal investigator for Harris County's district attorney. The council advises the state's Department of Family and Protective Services, which in turn oversees child and adult protective services, among other things...

Perry named two architects to the Texas Military Facilities Commission, which handles real estate for the Texas National Guard. Sandra Paret from the Dallas office of Hellmuth, Obata + Kassabaum, and Chao-Chiung Lee, president of Houston-based STOA International Architects, will join that panel...

We're Pretty Sure This is Correct

Stop, take a breath, and read on for one of our most daring clarifications ever, brought on by our failure to ask the governor's office if an appointee who was being replaced had also gone on to replace another departing appointee at the same agency. To wit: John Steen's term on the Texas Alcoholic Beverage Commission ended, and his replacement, as we wrote a couple of weeks ago, was Jose Cuevas Jr. We missed a hat trick, though. When Steen's term ended, he was appointed to the chair left empty by Kel Seliger, who left TABC to run — successfully, as it turned out — for the state Senate seat left open when Teel Bivins was named U.S. Ambassador to a cold and mountainous country in Europe. To summarize: Bivins is in Sweden. Seliger is in the Texas Senate. Steen left TABC only to return as Seliger's replacement, and remains there. And Cuevas is new to the agency.

Quotes of the Week

Democratic consultant Kelly Fero, quoted by the Fort Worth Star-Telegram on three Republicans asking a Republican House to overturn their election losses: "It's a public-relations dream come true."

Travis County District Attorney Ronnie Earle, quoted in Newsweek on looking closely at campaign finance in the 2002 elections: "This investigation is a little like clowns coming out of a Volkswagen in the circus. There's always another clown coming out."

Rep. Phil King, R-Weatherford, telling the Austin American-Statesman that he thinks the House should form a bipartisan committee on campaign finance to make the state's laws more clear: "Ronnie Earle should be the first witness. He should tell us how the law should be changed."

Former gubernatorial candidate Clayton Williams Jr., telling the Fort Worth Star-Telegram he hopes U.S. Sen. Kay Bailey Hutchison and Comptroller Carole Keeton Strayhorn will let Gov. Rick Perry be: "I'm not going to contribute to Republicans fighting Republicans. If either of those women runs, I will increase my contributions substantially to him."

David Thompson, one of the attorneys who challenged the state's school finance funding, quoted in the Houston Chronicle on the result: "Judge Dietz's sweeping ruling recognized that there is a disconnect between the higher standards that the Legislature has put in place for our schools and the resources that the state has made available to achieve them."

Chief Justice Wallace Jefferson of the Texas Supreme Court, telling the Fort Worth Star-Telegram that Texas judges should be paid more: "I think there are judges who want to make a career of it but find it difficult to do financially. If the incentives were there, they would stay forever."

Sen. Kip Averitt, R-Waco, on legislative discussions over how to handle water sales — like a big one negotiated by Land Commissioner Jerry Patterson last year — in the Waco Tribune-Herald: "They're wanting a little more accountability in the process rather than just the land commissioner being able to cut deals. I think they are going to recommend that the land commissioner work with local government and those parties affected."

Carol Diminnie, dean of the graduate school at Angelo State University, talking about a tuition hike with the San Angelo Standard-Times: "It's unfortunate that we have to raise tuition, but that's a fact of life. The state is no longer supporting us the way it has in the past, and if we want to continue providing a quality education, the money has to come from somewhere."

Kenja Purkey of Pampa-based Worth the Wait, a group that promotes sexual abstinence, quoted in the Amarillo Globe-News: "We don't give a halfway message for anything else. We don't say, 'If you're going to smoke anyway, have these filtered cigarettes.' Why should we do that for teen sex?"

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Texas Weekly: Volume 21, Issue 25, 6 December 2004. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2004 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (800) 611-4980 or email biz@ texasweekly.com. For news, email ramsey@ texasweekly.com, or call (512) 288-6598.

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