District B council runoff not on ballot
The runoff in the District B race for Houston City Council will be left off the Dec. 14 ballot and instead will require a special election after the third-place finisher filed a lawsuit contesting the Nov. 5 results.
Renee Jefferson-Smith, who missed the runoff by 168 votes, filed the suit contesting the election in state district court last Friday, forcing officials to delay the runoff, according to Assistant County Attorney Douglas Ray.
Jefferson-Smith’s attorneys filed the contest in a different court after a judge dismissed her earlier request for a ruling declaring candidate Cynthia Bailey ineligible to run for office because she has a felony conviction.
The Texas Election Code states a contested runoff cannot be held until there is a final judgment in the matter. The county wrote that it would delay the race in a court filing Wednesday.
“It’s as clear as any law I’ve seen,” Ray said.
Because the county has to begin sending out mail ballots for the runoffs Thursday, it printed them Wednesday without the District B race, Ray said. There are 12 other city runoffs set to be decided Dec. 14, including the mayor’s race.
Jay Aiyer, a public policy consultant and former political science professor at Texas Southern University, called the delay unprecedented.
“You’ve never had anything where a runoff election itself is just left off,” he said.
City taxpayers will have to foot the bill for the additional election, according to the mayor’s office. Both Ray and Nicole Bates, an attorney for Jefferson-Smith, said it is possible the special election could be held Jan. 28, when a runoff for the open House District 148 seat is scheduled to take place, if the lawsuit is resolved by then.
Alan Bernstein, Mayor Sylvester Turner’s director of communications, said the city would hold the special election on Jan. 28, but would support an earlier date if the suit contesting the election is resolved before then.
Harris County Clerk Diane Trautman said the delay of the runoff “will not affect any of the other racreally
es or the election procedures.”
Jefferson-Smith said she thinks the delay was the right thing to do while the lawsuit plays out.
“People are not completely aware of the law and what the law states,” she said.
Bailey, who finished second on election day and qualified for the runoff, declined requests for comment Wednesday.
Oliver Brown, Bailey’s attorney, said Jefferson-Smith is arguing the same case in a different forum because she did not like the earlier judge’s ruling.
“The problem is, they’re not doing an actual contest. They’re still just trying to challenge (Bailey’s) eligibility,” he said.
Jackson finished first
Tarsha Jackson, the first-place finisher who also is in the runoff, has said voters knew about Bailey’s criminal past and said she should be able to continue in the race. Jackson said Wednesday she was disappointed in the delay.
“What’s happening right now is just a prime example of what’s been happening to District B forev
er. We’re a marginalized and disenfranchised community,” Jackson said. “We have been left behind in this election. The people should be able to go out and vote on the 14th.”
District B covers a swath of north Houston that includes the Greater Fifth Ward, Greesnpoint, Acres Homes and Kashmere Gardens, along with the George Bush Intercontinental Airport.
Jackson said District B voters also will have a diminished voice in the mayoral and at-large races, since fewer people could turn out to vote in the runoffs.
Jefferson-Smith rejected that claim, saying the true disenfranchisement was letting people vote for a candidate that she said would not be able to assume the office.
While Jackson and Bailey seemed entrenched in the runoff after the initial court ruling, Aiyer said it is possible that could change in the continuing lawsuit.
“The one thing that seems to be unclear is when you have a special election, who will be the participants in the election,” Aiyer said. “I don’t know if, for example, Bailey is declared ineligible, that doesn’t
presuppose that (JeffersonSmith) should be in the runoff.”
The delay also calls into question who — if anyone — will represent District B between when Jerry Davis’ term ends on Dec. 31 and the election is held.
The litigation has centered on Bailey’s well-documented felony conviction from 2007 for theft over $200,000. According to court documents, she and three others stole two checks worth $242,971.75 from the North Forest Independent School District. Bailey served 18 months of a 10-year sentence for the conviction.
Debate over felony
Jefferson-Smith argued that runs afoul of a state law forbidding people with felony convictions from running for office. The Texas Election Code says candidates cannot have been finally convicted of a felony from which they have not been pardoned or otherwise “released from the resulting disabilities.”
That phrase has been subject to different interpretations, and it has not been thoroughly tested in court. Candidates successfully have reached the ballot despite felony convictions in Houston, San Antonio and Austin.
“You’ve had people with convictions run in the past,” Aiyer said. “They just haven’t gotten this far.”
Brown, Bailey’s lawyer, argued in a hearing last week that Jefferson-Smith could not challenge Bailey’s eligibility. Only the government can do that, he said, citing precedent from a higher court.
State District Judge Dedra Davis ultimately ruled in Bailey’s favor. Jefferson-Smith’s lawyers have appealed the judge’s order, in addition to filing the election contest in a separate court.
They also have asked Judge Davis to recuse herself in the first case, citing what they call “inappropriate and biased comments about this case made on social media.”
Roy Daiquiri, Davis’ court coordinator, said the recusal motion was under review Wednesday.
In one such Facebook post on the day before the ruling, Davis wrote that she was “feeling optimistic” after the suit temporarily was sent to federal court. It was sent back to her court hours later.