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Hearing in McAllen election lawsuit ends in cliffhanger

A high-stakes hearing in the McAllen election lawsuit ended with a cliffhanger on Wednesday.

The city of McAllen and the city of Pharr filed a lawsuit against the state of Texas last week, claiming a law that required them to surrender control of the May election to Hidalgo County is unconstitutional. They requested a temporary injunction, which would stop the law from being enforced.

After a three-hour hearing Wednesday morning, state District Judge Jan Soifer of Austin said she needed more time to digest the arguments.

“I am going to take this under advisement. I do want to go back and read the response that was filed by the plaintiffs last night or this morning and look at a couple of these cases,” Soifer said. “I will make a decision as quickly as I can.”

Voters submitted petitions to McAllen and Pharr in December under Section 31.0925 of the Texas Election Code, which required the cities to contract with the Hidalgo County Elections Department for the upcoming election.

Contracting with the county Elections Department leaves cities with less control over their elections.

McAllen and Pharr would still control voting times and locations, but Hidalgo County would select the election judges and pollworkers. Hidalgo County would also provide the voting machines.

While both the county and city voting machines are made by reputable manufacturers, the city voting machines print ballots — and immediately create a paper trail. The county depends on all-digital machines, which can produce a paper printout if requested.

Perhaps the most important difference, however, is the Elections Department system that allows voters to cast their ballots at any polling place in Hidalgo County. The system is more convenient for voters and allows them to avoid long lines.

“We are not attacking the county,” said C. Robert Heath, an attorney who represented McAllen and Pharr during the hearing. “We are not suggesting the county does it poorly.”

After it received the petition, Pharr followed the law and contacted the county Elections Department. McAllen responded by filing a lawsuit against the state. Pharr quickly joined McAllen’s lawsuit.

They argued the law, authored by state Sen Juan. “Chuy” Hinojosa, D-McAllen, targeted Hidalgo County, which is prohibited by the state constitution.

The law is only applicable to a county with a population of 500,000 or more people without a city with more than 150,000 residents that is served by an elections administrator.

Hidalgo County is the only county in Texas that meets all three requirements.

“Here, the legislature focused on one county out of all the other 253 counties in the state,” Heath said. “And there is no legitimate reason for them to do that. So we think that it is very clearly an unconstitutional local law.”

McAllen and Pharr also challenged the low number of signatures required to trigger the law.

If just 1% of the registered voters who cast ballots in the last general election sign a petition, the city is required to contract with the county Elections Department.

In McAllen, where voter turnout is extremely low, that number was just 20 people.

“The petition, if received, implements legislative action,” Heath said. “It decides something that would normally be vested in the legislature — in this case, the legislative body of the city — which has been granted that right through the constitution itself, under Article 11 Section 5, to make the decision as to whether to conduct its own election or to pass it off by contract to the county.”

Attorneys for the state defended the law.

Attorney Kathleen T. Hunker, one of several attorneys who represented the state during the hearing, said low turnout may be a sign that voters don’t trust city-run elections.

“Twenty individuals is only by happenstance. The actual, objective standard that was used is 1% of voters who were registered to vote and voted in the last general election,” Hunker said. “The reason it’s only 20 is because of the incredibly low rate of turnout in city elections. And this may be, in part, because there’s a lack of confidence in the cities to run the elections and to run them fairly.”

The law, Hunker said, provided a way for voters to handle a potential lack of trust in city elections.

“In this case, the reason why you even have the petition process is because voters don’t trust the city election. And so, in order to have a vote on this particular issue, you would force the voters to go through the very institution in which they believe is compromised,” Hunker said. “That doesn’t necessarily advance trust within the system. And that’s actually what a lot of this law is about, is creating and establishing trust with voters, with the city and with the county, making sure that everything is above board and done effectively.”

Hunker also said McAllen and Pharr had filed their lawsuit against the wrong party.

Asked by the judge who, exactly, McAllen and Pharr should have sued, Hunker suggested the county Elections Department. McAllen City Attorney Isaac Tawil disagreed.

The county elections administrator didn’t create the law and doesn’t enforce it, Tawil said, adding that the Elections Department would simply run the election at the city’s request.

“We have no complaint about her,” Tawil said in an interview. “Or her abilities.”

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