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A visiting judge has overturned the results of the November 2023 election that saw incumbent David White reelected to his Place 4 seat on the Edinburg City Council by just 10 votes.
After a three-day bench trial, Senior Judge Jose Manuel Bañales on Friday found that enough illegal votes had been cast to upend the results of the tightly contested race between White and his challenger, Gerardo “Gerry” Lozano.
“(T)he number of illegal votes that were cast for Contestee David White exceed Contestee David White’s ten vote margin of victory in said election … (B)y subtracting the illegal votes from the official vote total for David White, Gerardo “Gerry” Lozano obtained more votes than David White,” Bañales stated in a two-page final judgment issued Friday.
“(T)he court hereby declares Gerardo “Gerry” Lozano, the winner of the November 7, 2023, City of Edinburg, Texas election for City Commissioner (sic) Place 4,” Bañales’ judgment further states.
Speaking after the judge rendered his verdict, Lozano expressed elation.
“It was great. I wanted to scream. I wanted to cry. I just wanted to jump for joy,” Lozano told The Monitor via phone Friday afternoon.
Gilberto Hinojosa, one of the two attorneys representing Lozano in the election challenge, was equally pleased with the result.
“We’re happy that we’ve won,” Hinojosa said.
The Brownsville-based attorney explained that Bañales had disqualified more than two dozen votes cast in the race for Place 4, and that of those, some 15 had been cast for White.
“The judge disqualified, I believe, 26 votes that were cast in the Edinburg City Commission (sic) race in November of 2023. And out of those 26, he found that 15 had voted for Mr. White,” Hinojosa said.
As for the remaining 11 votes that the judge also disqualified, the judge did not make any determinations regarding whether they had been cast for White or Lozano.
That’s because the testimony for a significant number of the voters in question was delivered via videotaped depositions, rather than in real-time, live testimony inside the courtroom.
“Under Texas law, you cannot force a person to disclose who they voted for unless the court rules that their vote was unlawfully cast,” Hinojosa explained.
“There was 10 people that were disqualified that were among the videotaped depositions and so they were not there in the courtroom for the judge to ask them who they voted for,” he added a moment later.
Nonetheless, with the judge’s determination that at least 15 of those 26 ballots had been unlawfully cast in White’s favor, the incumbent’s lead over Lozano shrank from 10 votes to a deficit where he instead trailed by five.
“The court then found that the true outcome for the race for city commissioner was that Gerry Lozano … has won that election,” Hinojosa said.
Reached for comment Friday afternoon, a deflated-sounding White said he disagreed with the trial’s outcome.
“There’s really not much to say. I mean, I don’t agree with the judge’s opinion and I’ll be appealing,” White said, calling the trial exhausting.
A career law enforcement officer and one-time Edinburg police chief, White said he’s no stranger to trials. As a cop, he’s spent his share of time delivering testimony on the witness stand.
But this case was far different than anything he’s experienced before — largely because he felt like his own reputation was put on trial.
“Mr. Hinojosa is a very brilliant orator. And the suggestions he made about my character and stuff like that, you know, it hurt,” White said.
“It was a rough day, especially since I know I didn’t do anything. I haven’t done anything wrong,” he said.
Lozano’s election challenge hinged on allegations that politiqueras — or paid campaign workers — illegally assisted voters in casting ballots in-person and via mail.
The suit, which Lozano initially filed on Dec. 27, 2023, also alleged that some of the ballots may have been cast by people who used fake addresses on their voter registrations.
But it was the allegations of improper assistance that ultimately held the most water for Judge Bañales.
“He found that a lot of these people were assisted but they didn’t qualify (for help),” Hinojosa said.
The attorney explained that the Texas Election Code offers a narrow set of criteria for when a voter may receive help to cast their ballot.
If a voter is illiterate or has a physical disability that precludes them from filling out a ballot themselves, then they may be assisted.
Further, physically disabled voters may qualify for curbside voting, as well as physical assistance to fill out their ballots.
The judge ruled that some of the voters wrongfully got help filling out their ballots, while others unlawfully participated in curbside voting.
“He also found that a lot of people voted in the van, curbside, when they did not qualify … because they were perfectly capable to walk into the polling place,” Hinojosa said.
White conceded that the judge “threw out” votes from voters he deemed ineligible to have received assistance, but insisted that his actions during the campaign were no different than any other political candidate..
“I had a very rough time of this. I did nothing dishonest. I did my best on an election, just like anyone else,” White said.
He simultaneously said that the people who assisted his campaign were unpaid volunteers, and lamented that none of the trial testimony involved any of Lozano’s campaign workers or volunteers.
“They presented nobody that worked for Gerry Lozano’s campaign, just people that assisted me. And the people that assisted me did not work for me. They’re just friends who did what they could to get me elected,” White said.
But when pressed that the onus for presenting evidence of potential wrongdoing by Lozano’s camp fell squarely on White, and not Lozano, White again conceded.
“Yeah, you’re probably right on that. But I mean, I wasn’t sitting here trying to change the results of an election. Here in the Valley, you hire politiqueras — which, I didn’t hire these people — and they bring people to the election,” White said.
“I’m assuming Gerry did the same thing. And the judge only heard this and he threw them all out. I was not expecting it,” he added a moment later.
White said he fully intends to appeal the verdict — a process that could take half a year or more, according to what Lozano’s lawyers have told him.
“He could appeal all he wants. I don’t think he’s gonna win,” Lozano said.
Lozano added that his attorneys are forwarding all the evidence gathered in the lead-up to the trial to the Texas Rangers for potential criminal investigation.
“I’m not saying that it was done by Mr. White. I’m just saying that the people that were assisting him …” Lozano said, trailing off.
