After Primary Night Surprise, State Rep Tries to Fend Off Challenger

State Rep. Wayne Smith wasn’t near the top of the list of Texas House of Representatives leaders expected to sweat out this year’s Republican primary.  

But while most of his colleagues cruised to victory on March 1, the Baytown representative who chairs the House Committee on Licensing and Administrative Procedures barely survived to fight another day. He finished second to a 31-year-old Deer Park lawyer in a three-person race for the Republican nomination to represent District 128, which covers an area in Harris County east of Houston. And if his opponent, Briscoe Cain, had received just 380 more votes, Smith would have been out of a job. 

Now, Smith, 72, is facing Cain in a May runoff — a precarious position for a longtime incumbent. He admitted that it was a surprise to find himself in such a situation. But after retooling his campaign and turning his focus to local issues, Smith is scrambling to reverse his fortunes. 

“It would be safe to say that I feel good about our prospects in the May 24 runoff,” Smith said. 

The victor will almost certainly win the House seat. There is no Democratic candidate in the race, though Libertarian Ken Lowder will be on the ballot in November.

On the surface, Cain might not have seemed like a threatening opponent. The baby-faced conservative activist finished fourth in a seven-person primary race in a different nearby House district in 2014. Smith, meanwhile, hadn’t faced a serious primary challenger since he was elected in 2002. 

But in recent years, Cain has built up strong relationships with local conservatives. As a lawyer, he has worked with Operation Rescue, an outspoken anti-abortion group, and represented a group of Beaumont police officers who sued their city after claiming they were banned from holding a Bible study in a department conference room. (The city later called the situation a misunderstanding and allowed the use of the room.) 

During the campaign, Cain spent hours walking door-to-door and was a fixture outside early voting sites. He finished with about 48 percent of the vote. And soon after the ballots were counted, the third-place finisher, Melody McDaniel, endorsed him. She had received about 8 percent of the vote.

"Every opportunity we had to talk to voters was crucial since we were so vastly outspent," Cain said. 

Cain ran as a strict, don't-back-down conservative. His endorsements included well-known anti-establishment conservative groups like Texans for Fiscal Responsibility and the NE Tarrant Tea Party.  Those groups targeted other House leaders, too, and have long sought to push out Republican allies of House Speaker Joe Straus, whom they view as too moderate. 

Smith, meanwhile, ran a relatively low-key campaign, highlighting his support for tax cuts and increased spending for border security that passed the Texas Legislature in 2015. He said he was surprised by the record turnout in the race, which appeared to include a lot of first-time voters who wanted to weigh in on the Donald Trump-versus-Ted Cruz battle for the Republican nomination for president.

This time, the race will have a different feel. There are no other big races on the ballot. And Smith has refocused, adding campaign staff. He is now highlighting his work on local issues, including efforts to shut down illegal gambling rooms in east Harris County and his work with local officials and the Texas Department of Transportation to reduce local traffic congestion.

“When I knock on doors, when I speak to voters, they tell me they are interested in issues that impact their lives,” Smith said.

“I have a track record of providing meaningful results,” he added. 

Cain, meanwhile, has taken aim at that record. Since the March primary, he has gained attention statewide for suing the Texas Ethics Commission in attempt to nullify a rule that bans the use of videos produced by the Texas House of Representatives in political advertising.

Cain says he wants to use videos of Smith voting to increase his own pension and discussing border security and illegal immigration.

“In his campaign, Smith presents himself to voters as a strong conservative,” the lawsuit says. “However, Smith consistently rates poorly with grassroots conservative organizations, and Cain has successfully criticized Smith for taking votes that are inconsistent with his campaign rhetoric.” 

Cain is arguing that the ban on the use of House videos violates his First Amendment rights. He says the real purpose of the law is to protect House incumbents from having their challengers use their words against them. 

"The people have a right to know what their employees are doing in Austin," Cain said. "Transparency is key to an educated electorate. Austin politicians don’t want that."

Normally, the office of Texas Attorney General Ken Paxton would represent the Ethics Commission in the case. But Paxton’s office has notified the court that it will stay out of the legal fight.  

Smith isn’t named as a defendant in the suit. But his campaign has called the effort desperate and said that statements in the lawsuit “misrepresent” the facts. Responding specifically to the allegations that Smith isn’t a strong conservative, Smith noted that he is a Vietnam War veteran with strong support from anti-abortion groups and the National Rifle Association.

“I have voted for budget cuts and tax cuts,” he said. “I have been a conservative longer than my opponent has been alive.”