Following a three-hour hearing, the cities of McAllen and Pharr are awaiting a decision from a state district judge in Travis County on whether the cities will be able to retain control of their elections or whether they will have to abide by state statute requiring they give up control to Hidalgo County.

District Judge Jan Soifer of Travis County said Wednesday that she would take the arguments presented by the attorneys representing the city and the attorneys representing the state under advisement and would make a decision as quickly as she could.

The cities’ lawsuit centers on the argument that a section of the state election code that allows 1% of the voters in the last election to force the cities to turn over their elections to the county is unconstitutional.

During the hearing Wednesday, Attorney C. Robert Heath argued that Section 31.0925 of the election code, which was passed by the state legislature in 2009, was unconstitutional because its language specifically targeted Hidalgo County and no other counties in the state.

“When it was passed, it is clear that it was intended to apply to one county — Hidalgo County,” Heath said, noting that the statute applies to counties with more than 500,000 people that don’t have cities with more than 150,000 people.

“And because of this, it is a local and special law that is prohibited under Article 3, Section 56 of the constitution which says you can’t do a local or special law that regulates the affairs of cities or that regulates elections,” Heath said, “and it does both of those.”

Heath also argued that it was an unconstitutional delegation of the legislature’s authority.

“It is very rare because the petition, if received, implements legislative action,” Heath said. “It decides something that normally would be vested in the legislature; in this case the legislative body is the city — which has been granted that right through the constitution itself — to make the decision as to whether to conduct its own election or to pass it off by contract to the county.”

In the case of McAllen, only 20 verified signatures were needed in the petition since only 1,907 people voted in their last election in 2019.

On Dec. 23, the city received such a petition with 34 verified signatures. The city of Pharr received a petition on Dec. 17 with 31 verified signatures.

In arguing for an injunction to stop the enforcement of the statute, Heath said the McAllen and Pharr spent about $300,000 and $160,000, respectively, for their election equipment.

Perla Lara, the McAllen city secretary and elections administrator, and Hilda Pedraza, Pharr assistant city manager and elections administrator, testified during the hearing and said the cities had only used their equipment once.

Emphasizing that contracting with the county would come at additional cost, Lara testified that the last time the city contracted with the county to run their election, it came at a cost of about $30,000.

But under cross examination by Patrick K. Sweeten, an attorney representing the state, both Lara and Pedraza said they had not reached out to Hidalgo County Elections Administrator Yvonne Ramon to find out how much it would cost them now to have the county run their elections.

Sweeten also noted that no one from the city of McAllen testified against the bill when it was introduced in the legislature in 2009. He added the city hadn’t challenged the statute in the past and that they moved forward in purchasing their election equipment in 2017 knowing a petition could force them to hand over control of their elections to the county.

Kathleen Hunker, special counsel for the Texas Attorney General’s office argued the cities did not have standing to sue the secretary of state, arguing they had not demonstrated that they would suffer a concrete injury in the future because of the statute.

She also argued the state had the ability to enforce the statute and so the cities were only speculating that enforcement would be an issue and were also speculating on how they would be affected since they did not inquire with the county on how much it would cost them to turn over their elections.

“All of the injuries asserted are based on a speculation that the law would even be enforced and that, if it is enforced, that there could be an expense incurred by the city,” Hunker said.

She also argued that there was no delegation of authority through the petition because this was not an example of a policy being created but simply a choice between two regulatory regimes in place.

Gunnar Seaquist, another attorney for the cities, reiterated that the law only applied to Hidalgo County from the outset and was therefore an unconstitutional special law, which he said are prohibited to prevent special treatment for a particular group of citizens or a locality.

Seaquist pushed back on the argument that the cities didn’t have standing by stating they did have an actual, or threatened injury, under the statute.

“First, the fact that we are required to implement and be subjected to an unconstitutional enactment is itself a constitutional harm,” Seaquist said.

He added the financial harm to the city was not speculative.

“These cities will lose the financial benefit and value of the purchases that they have made,” he said. “That is a direct cost to the city and it deprives them of the opportunity to use a valuable asset that they have.”

To the argument that enforcement is only speculative, Seaquist said the injury in this case is the mere operation and enactment of the allegedly unconstitutional statute.

He added that there was an enforcement provision that allows the secretary of state to seek enforcement of their orders in district court.

Additionally, Seaquist said delegation was not the administration of the election but the decision of who got to choose who handled the elections.

“That is rightfully the city’s decision under the constitution and home rule provisions,” Seaquist said. “That decision is delegated without any oversight or guidance to as few as 20 people.”

“There could 68,000 people who are opposed to it who might file a petition in opposition and it does nothing,” he said.

At the conclusion of Seaquist’s arguments, Soifer did not issue a ruling but said she would review their arguments and an additional court filing by the cities before doing so.


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