Senator cast 2 votes in same 2004 election
records from Virginia could cost birdwell his state post
The newest member of the Texas Senate, Brian Douglas Birdwell, voted in the November 2004 presidential election twice, making his choice between George W. Bush and John Kerry in Tarrant County 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, not in Texas. That could imperil the Republican’s spot in the Legislature because to serve in the Texas Senate, a candidate must reside here for at least the previous five years. Birdwell cast a Virginia ballot in November 2006; if that’s enough to establish him as a Virginia resident — an issue that can be settled only in court — it means he’s not eligible to serve in the Texas Senate until at least November 2011.
Voting in the same election twice is a thirddegree felony in Texas.
Birdwell did not respond to 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.
Instead, they issued this statement via email: “These questions have been asked and answered by the voters of (Senate District 22). My candidacy was certified by the Secretary of State. My case was upheld by an appellate judge. I was elected overwhelmingly by the people. I was sworn into office by both the Governor and Lt. 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.”
Birdwell bested three other candidates who sought to succeed state Sen. Kip Averitt, R-Waco, in a spring special election. Averitt filed for reelection last year but changed his mind after it was too late to get off the ballot. He didn’t campaign, but he easily won the GOP nomination in March anyway.
He then resigned, forcing a special election for the remaining months of his term.
In that race, Birdwell faced Burleson businessman Darren Yancy, former state senator and Waco Mayor David Sibley and Gayle Avant, a Baylor University political science professor.
He finished second in the first round but prevailed in last month’s runoff against Sibley.
Averitt withdrew his name from the nomination for the next term, and a majority of the district’s county Republican chairs voted last week to replace him on the November ballot with Birdwell.
Birdwell’s eligibility dogged his campaign all along, attracting news coverage and generating talk in political circles. State law requires senators to have lived in the state for the five years before they take office and to have lived at least the past 12 months 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 May 2007, had been around long enough to qualify. If that date were the standard now, he would 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 — may hold the key to whether he’s a legal candidate.
Lawyers for the Republican Party haven’t looked into Birdwell’s case, according to Bryan Preston, a party spokesman, who said the matter 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 the group.
Birdwell was working in the Pentagon on the day of the Sept. 11 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 on Lake Granbury, southwest of Fort Worth, in October 2005. They built a house and moved back to Texas from Virginia in May 2007.
Birdwell attempted to address the residency questions himself, filing in Hood County District Court for a declaratory judgment this year to settle the controversy. 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. And it asserts, “Just because Col. 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.
Brian Birdwell got medical care after 9/11 in Virginia.