The battle over one of the poorest legislative districts in Texas will likely be settled in a courtroom.
There, attorneys for state Rep. Lon Burnam, a Fort Worth Democrat who has represented House District 90 for nearly two decades, will argue that potentially illegal ballots were cast in this primary election.
In a case that election officials statewide are monitoring — because it involves the use of electronic devices such as iPads — attorneys say enough ballots are in question to make a difference in the race Burnam lost by 111 votes to local businessman Ramon Romero Jr.
“We feel like there’s basically voter fraud and illegality that went on out there,” said Art Brender, a local lawyer and former Tarrant County Democratic Party chairman who is on the legal team representing Burnam. “We’ll know pretty soon.”
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Romero, a businessman who owns A-Fast Coping Tile and Stone, said he believes this case will be resolved soon — in his favor.
“We didn’t have tablets. What he’s alleging has nothing to do with our campaign,” he said. “I don’t believe there was anything illegal that happened. It is sad that this is where we are. We should be moving forward.”
On March 4, the battle for HD 90 was one of the closest local races on the Tarrant County ballot, with each candidate separated at times by just a handful of votes. When all votes were tallied, Romero came out on top by 111 votes, receiving 51.09 percent.
Burnam’s lawsuit alleges that some voters in the district were approached by campaign workers who asked them to fill out applications to vote by mail on an electronic device such as an iPad.
Burnam wants to review these applications, saying he believes “that these documents and other testimony will establish beyond question that the computerized-signature operation was illegal and that I won the election.”
His legal challenge claims that of the nearly 5,100 votes cast in this race, 951 were mail-in ballots — more than enough to decide the election.
But his request for copies of all applications for mail-in ballots was rejected Friday during a hearing before state District Judge Robert McFarling of Denton, who recently was appointed to oversee the case.
Ann Diamond with the Tarrant County district attorney’s office argued against releasing all the applications, saying they are not publicly available and they include private information (telephone numbers, addresses and more). About 30 of the forms have been released.
Brender maintains that the records are public information and what he has reviewed already shows that at least three people may have voted twice — once in early voting and once on election day. A review of all the applications could show even more problems and potentially invalidate enough ballots to flip the election results.
McFarling chose to not order the release of that information, saying even if there was a problem with the way a ballot was requested, the vote should still be counted.
And he said there was no proof that data requested would lead to “admissible evidence” in the case.
“You have to have a factual basis … before we start messing with the rights of individuals to vote,” he said. “I don’t think it’s sufficient to say … we think there might be something wrong … and we want to check it out.”
The district at the heart of this court battle — which stretches through much of Fort Worth and includes neighborhoods such as the Stockyards, Como, Polytechnic Heights and the near north side — is one of the poorest in Texas.
About one-third of the residents live in poverty, nearly half the adults didn’t graduate from high school, and nearly one-third haven’t worked during the past year, according to the Texas Legislative Council.
Brender said he plans to appeal the ruling early this week.
He said the fact that there were three duplicate votes shows there was some sort of problem. Other concerns include that less than a handful of people served as witnesses for dozens of people mailing ballots into the elections office.
“There could be a lot of fraudulent requests for these ballots,” said Brender, who is working with a legal team that includes Buck Wood, an Austin-based attorney who specializes in election law
Burnam, disappointed in Friday’s ruling, said he’s not giving up. But the judge’s decision does make “it a lot harder to get some of the information we need.”
Romero is being represented by a team of lawyers that includes the Kelly Hart & Hallman and Vinson & Elkins law firms. And he said he was pleased by the court’s decision.
“It’s really what I expected all along,” he said. “I didn’t think it would be right for a judge to invade people’s privacy.”
Romero said he hopes the legal action wraps up soon so he can focus on taking office next year.
“For Lon, I’m sure it’s hard to accept he can no longer represent so many great people,” he said. “But the voters spoke.”
A key issue in this case is the use of electronic devices to request mail-in ballots — and whether that’s legal in Texas.
Political observers say the state’s Election Code only addresses electronic signatures at polling places, such as when voters cast their ballot during early voting or on Election Day.
“The use of an iPad to fill out forms to request an absentee ballot would not appear to comply with the letter of state election law, but would appear to be in line with the spirit of the law,” said Mark P. Jones, a political science professor at Rice University in Houston.
“The law simply has not been updated to take account of the rising use of iPads and other mobile devices, leaving a vacuum in the state’s election law.”
Stephen Vickers, chief deputy elections administrator in Tarrant County, said he couldn’t comment on the case because of the pending litigation.
The ultimate ruling in this case may well determine how election officials statewide process mail-in ballots for at least the rest of the year.
“This case also should hopefully spur the Texas Legislature to modify the state’s election law during the 2015 legislative session to allow for the use of electronic devices to complete mail-in ballot request forms,” Jones said. “Perhaps that reform will be the first bill that Rep. Romero files.”
Workers in the Texas Secretary of State’s Office are among those watching how this court case is resolved.
“As with any court case, it could set a precedent,” said Alicia Pierce, a spokeswoman with the Secretary of State’s Office. “But what that might be, we wouldn’t want to speculate.”
Burnam’s lawsuit comes as Texans are adjusting to a new voter ID law, which requires voters to show a valid photo identification card to cast a ballot. Texans voting by mail-in ballots don’t have to show ID.
He has called the voter ID measure a “disgraceful attempt by Republicans in the Texas Legislature to hold onto power by suppressing minority voters.”
After Burnam filed his lawsuit challenging some ballots in his race, state Sen. Kelly Hancock was among the Republicans tweeting out reaction.
“I’m betting he would change a few votes on voter fraud now,” wrote Hancock, R-North Richland Hills.
Officials with both major political parties say they are watching this case.
“We trust the courts will take the issue seriously … [and] determine the best manner in which to proceed,” said Manny Garcia, communications director for the Texas Democratic Party.
Said Republican Party of Texas Chairman Steve Munisteri: “We are interested observers to see what the court rules to see if we are following the law correctly.”
Romero said he wasn’t surprised by the lawsuit. But he believes this isn’t something “as Democrats that we should be insinuating.”
“Lots of people came out and were excited about being part of the primary. Now they don’t understand what’s going on,” he said. “They hear words of illegality and that scares people and makes them stay away.
“He should be welcoming me in Austin, helping with the transition. Instead, he’s doing this,” Romero said. “But he has a right to do this and we’re not mad at him. We’ll be down in Austin come January.”
A look at the district
The district at the heart of this court battle — which stretches through much of Fort Worth and includes neighborhoods such as the Stockyards, Como, Polytechnic Heights and the near northside — is one of the poorest districts in Texas.
In this district, around one-third of the 160,000 residents live in poverty, compared to the statewide average of 17 percent, according to data from the Texas Legislative Council. The per capita income is $12,266, compared to $25,548 statewide.
About half the adults in the district didn’t graduate from high school; nearly 8 percent have earned a college degree. And nearly one-third haven’t worked during the past year, TLC statistics show.