The sense of deja vu was palpable at Judge Tom Lowe's courtroom Tuesday morning in downtown Fort Worth.
Wendy Davis was there defending her eligibility to run for the Texas Senate for a second time. A similar cast of characters were present in the courtroom.
Davis sat behind several lawyers, patient and poised.State Sen. Kim Brimer, R-Fort Worth, who is actually the plaintiff in this suit unlike in the last round, was not.
“I guess he had other things to do,” Brimer’s lawyer, Nick Acuff, said after the hearing.
Judge Tom Lowe said he would deliver his ruling at 3 p.m.
The arguments made this morning were almost identical to those made in February before the court of appeals.
Both sides had an hour each to make their case but the hearing was over in 70 minutes.
According to spokesmen, both Davis and Brimer are likely to appeal if the ruling doesn’t go their way, making it likely this case will quickly be before the Texas Supreme Court.
In the meantime, here’s a look at what happened...
9:05 a.m.: Judge Lowe noted that he had never had a case before where both sides agreed on so many of the facts.
“Why don't you go and just resolve the whole thing?” he joked.
9:12 a.m.: Acuff started things off making Brimer’s case.
He laid out the two sections of the Texas constitution at the center of this case:
The holdover provision requires elected officials to hold onto their office until a successor is appointed (The Fort Worth city charter has a similar provision.).
provision is meant to prevent an elected official for running from the
legislature (the debate is whether
Davis filed twice to run against Brimer. Once on Dec. 3 and then again on Jan. 2 after it became
clear three Fort Worth firefighters were going to challenge her eligibility
over it. (Some background: Joel Burns was hastily sworn in at his home on Jan.
1, and Davis
he wasn’t trying to argue that the second filing wasn’t valid (although
Brimer’s original complaint suggested that that might be part of his argument.)
Rather his argument in that area focused on his contention that Burns’ first
swearing-in was not kosher, making
“Ms. Davis knew she had a problem, and it looks like she knew she had a constitutional problem,” Acuff said. “There was some scrambling to cure that process...When she filed on Jan. 2, it is our opinion she was still a member of that council because her successor had not been duly qualified.”
Acuff said it didn’t matter whether Burns had officially replaced Davis yet or not. He
argued that Davis
9:27 a.m. Buck
“I'm the one who said 'Get your successor qualified and go down and refile,'” Wood said. “I was just trying to be overly cautious.”
Wood then attacked the timing of the
lawsuit, six months after the earlier suit from the firefighters was thrown out.
In that case, the judges said only Brimer,
“There is nothing new about this lawsuit,” Wood said. “The difference is we're sitting here late in the game.” He estimated that, due to appeals, the suit likely won’t be resolved until mid-August.
Wood then laid out how Davis did everything she could to resign from her post on the city council in a timely manner. He listed different factors beyond her control that kept her successor from being sworn in weeks earlier, including how the race to replace her went into a runoff.
“These factors were all out of the hands of the candidate,” Wood said.
9: 43 a.m.: Chad
Dunn, lawyer for Boyd Richie, made a presentation focusing on constitutional
rights. He argued that because the overlap provision in the Texas constitution
only pertains to people running for the legislature (not, say, people running
for Railroad Commission), it violated the equal protection clause of the US
constitution. He then suggested that Brimer is abusing the legal system to try
“The plaintiff is attempting to avoid a contested fight with one of the most able Democratic office holders in Fort Worth,” Dunn said.
9:50 a.m.: Renea
Hicks, lawyer for Tarrant County Democratic Party Chair Steve Maxwell, went
back to Wood's line of thought and defended
“She didn't do it because she was scared,” Hicks said. “She did it to make sure that nobody could raise any reasonable question about it.”
Hicks then rehashed his Jesse Owens argument again from the the February hearing (click here and scroll to the bottom to get a description of it).
He then reminded the judge that higher courts have made clear that when election law is vague, courts must rule in favor of eligibility.
“If there's any ambiguity, you have to file in favor of eligibility,” Hicks said.
10:07 a.m.: Acuff took a few minutes to dispute
“This is not a question about ballot
access,” Acuff said. “There has been a lot of talk that Ms.
Acuff then made a statement that which people on both sides of the debate can likely agree: “If we cannot determine whether a candidate is qualified when they file for office, I think that throws the political process into chaos.”
10:10 a.m.: Lowe said he’d read his ruling at 3 p.m.
And then, the case will get sent to the Court of Appeals, possibly before the same judges who heard the firefighters case in February.
We'll post the judge's ruling as soon as we get it.