How the Wendy Davis hearing unfolded
Just got back from the Wendy Davis hearing.
At least in terms of lawyers, Wendy Davis outmanned her opposition.
Davis had three lawyers defending her right to challenge Republican Kim Brimer for his state senate seat: Chad Dunn with the Texas Demoratic Party, Renea Hicks, a lawyer for Tarrant County Democratic Chair Art Brender, and Buck Woods, for Davis.
Making the firefighters’ case was Craig Deats, an Austin-based lawyer with the Texas Fire Fighters Association.
Each side was granted 20 minutes to make their case before a panel of three judges: John Cayce, Dixon Holman and Sue Walker. All three are Republicans.
Here's a rundown of all 49 fascinating minutes.
11:01 a.m.: Before Deats could get his first sentence out, Cayce grilled him the timing of his petition – after the filing deadline.
Deats said the firefighters filed a challenge to Davis’ eligibility with Brender on Dec. 31, but that Brender didn’t rule until Jan. 2. It was only then that they spoke with an attorney and decided to file the lawsuit. Deats reminded the justices that Democrats have until the end of the summer to appoint a new candidate if Davis is declared ineligible.
“I believe the whole thing about insufficient time is a bit of a red herring in this case,” Deats said.
Deats got in a couple of sentences about the merits of the case before Cayce interrupted again, this time to ask about whether three firefighters have the legal grounds to file this suit.
“I believe the Supreme Court has made clear that simply being a voter or a citizen does not give a party standing to challenge the eligibility of a candidate,” Cayce said.
Deats then spent about half his time before the justices defending the firefighters' right as taxpayers and citizens to file the suit, saying the case law on the issue wasn’t so clear-cut.
“If in fact the court were to declare that the Democratic Party members have no standing...then that means the only persons who have standing are the adversaries,” Deats said, trying to suggest that that would be undemocratic.
After about 10 minutes, he moved on to the merits of the case.
Deats focused on Davis’ original application to file on Dec. 3, which he reiterated over and over was deemed valid by Brender. Therefore, the second time she filed on Jan. 2 doesn’t matter, he said.
He then argued that, even if the second filing was the one that counted, Joel Burns wasn’t sworn in as Davis' successor on the City Council until Jan. 8. An earlier swearing-in on Jan. 1 in Burns' home didn’t count and his proof was that the City Council required him to be sworn in again on the 8th. He also pointed out that at the Jan. 8 meeting, Burns was not allowed to participate in pre-council activities, presumably because his second swearing-in didn’t take place until the beginning of the regular council meeting.
Cayce then reminded Deats that, when the law is murky, judges are supposed to rule in favor of eligibility (allowing a questionable candidate to run). Deats argued that that was only done when there were technical questions of eligibility. The issue here isn’t technical, he said.
“Here we’re talking about a situation where a candidate admittedly filed (for higher office) ... while she was still obviously actively engaged in the work of the City Council. She was sitting on the dais. She was participating in votes,” Deats said.
11:23 am: Woods was up first to defend Davis. He predicted chaos in every election cycle if everyday citizens could challenge a candidates’ eligibility.
“There would probably be challenges in most elections over the eligibility of one candidate or another somewhere between the filing deadline and the general election” Woods said.
He then went on to argue that Davis, resigning all the way back in August, did everything a person could reasonably be expected to do to make herself eligible.
“She actually is commanded to continue to serve ... There’s nothing she could do about when her successor was elected or how they’re going to take office,” Woods said.
Woods noted that Davis could have ignored the city charter and simply refused to continue to serve after announcing her resignation (as Bud Kennedy suggested she should have done). The problem is that under the city’s holdover provision, she would still technically be a city councilwoman until her replacement was sworn in, he said.
Woods then made the argument that Gov. Rick Perry helped cause this whole mess when he pushed the runoff date a week back to Dec. 18. If the runoff date had been on Dec. 11 as city and county officials had planned, Burns would have been likely sworn in to office well before the filing deadline, he said.
“You have a third party out here controlling the tenure in office, and your honor, that is not good public policy,” Woods said.
11:34: Dunn’s turn. He argued that the firefighters lost their right to file this case because they didn’t file in mid-December. By filing so close to the end of the filing period, they made it impossible for another Democratic candidate to file as a backup. The implication was the firefighters deliberately filed their case so late in the filing period to mess with the Democrats and help out Brimer.
11:39: Hicks took a completely different approach. He said if you look at previous case law, all that matters is Davis’ time on the city council won’t overlap with her term in the state senate, if she’s elected.
And from the “who could have seen that analogy coming” department: Hicks compared Davis to Jesse Owens. How? Because she resigned earlier than she needed to out of an abundance of caution, in the same way Owens, in the 1936 Olympic long jump, jumped from well behind the foul line to avoid any chance of being charged with cheating and still won the gold medal.
11:44: Deats focused his rebuttal on case law that contradicts Hicks' argument.
11:49: “We’ll have a decision shortly,” Cayce said.
Everyone left the courtroom debating the definition of “shortly.” Their best guess: tomorrow at the earliest.
