Waco: Election lawsuit on a fast track for judge’s ruling

Published: Mar. 15, 2016 at 1:05 PM CDT
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A lawsuit filed in the McLennan County Commissioner Precinct 1 race is on a fast track to be heard and settled by a judge to determine if a new election will be called.

The lawsuit, filed late last week in Judge Vicki Menard’s 414th District Court, asks the judge to call a new election in the race between incumbent Kelly Snell and challenger Cory Priest that, after a re-count of votes, was decided by only 25 votes, county election administrator Kathy Van Wolfe said.

There were also a large number of voters who were disenfranchised on Election Day after they were prevented from voting in the race or had cast illegal ballots, Austin attorney Joseph Nixon said.

The term “illegal ballots” does not refer to criminal liability, rather only to ballots that could not be legally counted under the election code.

Nixon is representing Priest in the lawsuit, which must be set for hearing in only days, according to state election statutes.

Austin attorney Donna Davidson confirmed she is representing Snell but declined Tuesday to make any comment citing attorney-client privilege.

Snell also refused comment other than to say: “They want to bring a lawsuit because they lost the election” but “they only gave us five days.”

When the re-count could not determine a true winner because the number of uncast votes plus the number of illegal votes was far greater than the race margin, then the next step was to file the lawsuit, Nixon said.

Because 16 voters cast illegal votes and 139 eligible voters were prevented from casting ballots at the polls, a true winner could not be named, according to Nixon.

Nixon filed the lawsuit and Snell has been served, leaving him only five days to respond to the lawsuit.

After that response, the court clerk must notify the judge who then must immediately set the lawsuit for hearing.

Then, Nixon said, the judge must recuse herself because state election code says a sitting judge in the county where such a lawsuit is filed is disallowed from hearing the case and a visiting judge must be named.

Menard already has announced she will step down and the administrative judge for this region has named retired District Judge James E. Morgan to hear the lawsuit in Menard’s court.

Nixon said he will present testimony from Van Wolfe and may call other election workers to give testimony.

Then after that testimony is offered, the judge must decide if a true winner of the race can be named, and if not, the statute says, he must call a new election.

“The statute is pretty straight forward,” Nixon said.

“If the judge cannot name a true winner then he must declare it (the original election) void.”

The judge must then decide on a date for the new contest and “he is master and commander of the Universe,” Nixon said, in that he could name any date he wishes for the election.

But most likely Morgan will choose the May 26 run-off election date because that would be easier and more cost effective than having two races.

Also, the statute says only the candidates that were qualified to run in the original election can be on the ballot.