Democratic officials in SD-22 got together in a Hillsboro restaurant Thursday evening and nominated John Cullar to run for the Senate seat now held by Brian Birdwell, R-Granbury. Cullar is a Waco attorney, former McLennan County Democratic chairman (until earlier this year), and a former member of the State Democratic Executive Committee.
The nomination gives Waco another opportunity to try to hold its place as the political anchor of the ten-county district. That used to be a clear role based on its population, but the counties on the northern end of the district that edge the DFW Metroplex have more people and more voters now. Birdwell's success in this year's special election is partly a testament to that population shift. And it's a consequential issue this year; lawmakers will redraw the political maps in 2011, after the Census numbers are available, and Waco leaders fear they'll lose more clout if those cartographers don't include someone who lives in McLennan County.
The Democrats didn't have a candidate in that race until now and wouldn't have one at all if Kip Averitt hadn't resigned from the seat, and the race, after winning the Republican nomination last March. Birdwell won the special election for the remainder of his term. But because he quit after winning the nomination, the law allows both parties to appoint nominees for the general election. No Democrat ran in that party's March primary, but the Averitt resignation gave them another shot. Some Democrats in the area hesitated, fearing that a vigorous race for Senate might turn out more Republican voters and that those voters might also vote against U.S. Rep. Chet Edwards, D-Waco, who faces a difficult reelection bid. They apparently decided that wasn't a deal-breaker.
Now the question is whether Democrats will take a shot at Birdwell on residency questions before the general election. He's got two interesting items in his voting record. The first is that official ballot records in Prince William County, Virginia show him voting in the November 2004 election there; official records in Tarrant County, Texas, show him voting in the same election there. Voting twice in the same election is a felony. Birdwell says the Tarrant County records mixed him up with his brother and that he didn't vote in Texas that year — a possibility brought to our attention initially by Tarrant County election officials. But the sheets that voters sign when they vote can be destroyed after only 22 months under state law, and the only record still standing is the one showing the newest state senator cast a ballot in Tarrant County that year.
The second issue is more pertinent to this particular election. Birdwell voted in Virginia in November 2006. Texas law requires senators to live here for the five years before they take office. If a court were to say voting is an act of residency, it would have to conclude that Birdwell can't take office until after November 2011. Birdwell has said he remained in Virginia for treatment of burns he suffered in the 9/11 attack on the Pentagon and that he always intended to return to Texas and always considered it his true residence. But he voted in Texas in 2002 — 14 months after the attack — before registering as a Virginia voter in early 2004.
The clock is ticking on this: August 20 is the last day parties are allowed to replace candidates who drop off the ballot (though the courts can fiddle with those dates), and there's no time for a case to wind through a district court and up the appellate chain. In all likelihood, any challenge would have to be made directly to the Texas Supreme Court. Judges generally don't like messing with elections and with candidates chosen by voters. But voting is an act of citizenship, and has a way of legally locating a voter in a particular place. So was Birdwell a Texas resident voting in a Virginia election, or a Virginian who's not eligible to serve in the Texas Senate? At this point, that's a question only the courts can answer, and only one guy — Cullar, the new Democratic candidate — has the legal standing to ask for a ruling. He'll have to make a decision quickly.
