By NAXIELY LOPEZ-PUENTE and FRANCISCO E. JIMENEZ
Two South Texas cities are suing the state and the Texas Secretary of State after they both received petitions from residents invoking a little-known portion of the election code that could force them to relinquish control of their upcoming municipal elections.
McAllen and Pharr announced Tuesday they had joined forces in asking a state district judge to declare Section 31.0925 of the Texas Election Code unconstitutional and to issue an injunction against its enforcement.
“What we did was, we filed a lawsuit challenging the constitutionality of…a provision of the election code that allowed for a small group of private citizens to require the city to have the county elections administrator run our election, as opposed to the city conducting its own election,” McAllen City Attorney Isaac Tawil said Tuesday. “We don’t believe that that law does anything to protect the rights of our citizens or the integrity of our elections, which is of the highest priority to the city.”
State Sen. Juan “Chuy” Hinojosa authored that section of the law, which, based on its language, only applies to political subdivisions in Hidalgo County — with the exception of water irrigation districts.
The law essentially forces any municipality or school district within the county to hand over the administration of their elections to the Hidalgo County elections administrator if it receives a petition with enough signatures to equal just 1% of all votes cast in the most recent general election held by that political subdivision.
“In (McAllen’s) case, the most recent city general election was in 2019 when only two single-member districts covering a portion of the city were on the ballot and 1,907 persons voted,” the city noted in its request for temporary injunction. “Thus, a petition would need to contain only 20 signatures to trigger the requirement set out in the statute…”
On Dec. 23, the city received a petition with more than 60 signatures, 34 of which were later verified by the city secretary, court documents indicated.
According to the Advance News Journal, the McAllen petition was spearheaded by mayoral candidate Othal E. Brand Jr., who ran an unsuccessful bid for mayor in 2017 and has long been at odds with city leadership.
Brand, who signed the petition himself, did not return a call seeking comment Tuesday.
Several of the signees, however, appear to be active local Republicans.
Brand, for example, bought breakfast at a Hidalgo County GOP event on Jan. 23 that was aimed at teaching local residents to run as Republicans.
Robert Bonds, a presenter at that meeting and former Hidalgo County GOP chair hopeful, also signed the petition, along with Mayra Flores, a local Republican activist who said she was thinking of running for Congress in January.
Eva Arechiga, an organizer of some of McAllen’s earliest “Trump Trains” over the summer, also signed it, along with Debbie and Gary Groves, who were frequent participants at rallies in favor of the former president.
Pharr received a similar petition Dec. 17, city attorney Patricia Rigney said Tuesday. That petition contained 38 original signatures, of which 31 were later verified.
It’s unclear who spearheaded the collection of signatures in Pharr, but the petition was brought before the Pharr City Commission during a Jan. 4 regular meeting.
“We have our own voting machines, correct?” Place 2 Commissioner Roberto “Bobby” Carrillo asked during that meeting. “Somebody petitioned, so we’re going to have to pay out, and that’s going to cost additional money to the city of Pharr to run this election?”
“That is correct,” Mayor Ambrosio Hernandez replied.
Hernandez then noted the city’s own voting equipment has safeguards in place that the county does not have.
“We have a dual checking system, meaning in ours, yes you can vote digitally, but you have to have a paper copy with it. That becomes important because whenever there’s a doubt in how the election’s being carried out, as in today’s environment, or there’s a question where there was something miscounted or something changed, well the document has to match your electronic vote,” he said.
“The county doesn’t have that,” Hernandez continued. “It’s whatever they put in digitally, that’s what comes out. So it’s a disservice in my opinion — and that’s just my opinion — to the city of Pharr, when you can have two checking systems.”
Hernandez also noted there are costs the city will incur if the county runs its election.
“Now you’re asking the taxpayers of Pharr to pay a third party to do what you can inherently do yourself,” he said.
Even though both petitions satisfied the 1% requirement to force the cities to hand over the reins of the election to Hidalgo County Elections Administrator Yvonne Ramon, the cities won’t do so without a fight.
The municipalities argued in court documents that the law takes the power away from elected representatives and gives it to a “self-selected handful of voters” who “possess no special training or qualifications.”
It also offers no recourse for those who oppose it.
“Even if thousands of voters opposed the action and submitted their own petition seeking to have election administration remain with the city, the statute gives the entirety of the decision-making power to the small number of persons who submit a petition requiring the city to contract with the county elections administrator,” the lawsuit stated.
Additionally, the role of a petition is to trigger a vote, not to make policy, the cities stated.
“Here, unusually, and perhaps uniquely, the presentation of a petition does not trigger a vote but, rather actually results in the policy decision — (in other words), the mere presentation of the petition determines what entity will be responsible for conducting the city election,” the court documents stated.
Hinojosa, who drafted the legislation, said Tuesday it could very well be unconstitutional.
“Well, it might be,” he said. “I think it’s an issue for the courts to decide.”
The Texas senator said it’s not uncommon for legislators to pass unconstitutional bills, but they’re usually red-flagged by the legislative counsel, he said.
“I know in the past, bracketing in a couple legislation had been declared unconstitutional, so there’s a possibility that it may be the case,” Hinojosa added.
Bracketing refers to placing certain parameters on a section of the law so that it only applies to a certain jurisdiction. In Hinojosa’s case, he used population brackets to limit the law’s application to counties that have an elections administrator and a total population of more than 500,000, but don’t have cities with populations over 150,000.
“There are nine counties in the state that have at least 500,000 population and are served by an elections administrator. Eight of the nine have a city of at least 150,000 population,” the lawsuit stated. “The only county of at least 500,000 that has an elections administrator and does not have a city of 150,000 is Hidalgo (County), which is the only county to which the statute applies.”
Hinojosa said his intention was to rein in some of the infighting and fraud allegations stemming from smaller cities trying to run their own elections.
“The intent was focused on the smaller communities, like Progreso for example, but not the city of McAllen, who quite frankly is experienced and has well-trained staff and has voting machines to run their own elections,” Hinojosa said. “It was focused on the smaller communities because of all the complaints that we were receiving concerning voter fraud and all types of shenanigans at the local level where the smaller cities and communities did not have the personnel, did not have the experience or the training available to be able to run elections.”
McAllen argued in its petition that it would suffer irreparable injury because the city spent almost $300,000 in 2017 to obtain touch-screen voting machines that produce an auditable paper trail and other equipment necessary to conduct its own election.
“Further, it has employed and trained persons whose job responsibilities include administering the city elections,” the suit stated.
And changing the administrator could also mean having to change polling locations, possibly confusing the general public.
“The city has traditionally used specific polling places, which its citizens are accustomed to using in municipal elections. If the city is required to contract with the county to conduct the election, it will mean that a different set of polling places will be used, which will cause confusion of the voters,” the lawsuit stated.
Monitor staff writer Matt Wilson contributed to this report.