You’re an Ex-Con, Come Join in the Race to be a Member of the Houston Council

In a long-awaited decision, a visiting judge ruled Tuesday that a Houston City Council candidate who has a felony conviction should remain on the ballot for the District B runoff, declining a plea from the third-place finisher to replace her on the ballot.

Renee Jefferson-Smith, who finished 168 votes behind Cynthia Bailey in the Nov. 5 general elections, had argued that Bailey’s 2007 felony conviction for theft made her ineligible and the city erred in not declaring her as such before it certified the November results.

Jefferson-Smith’s lawyers cited a state law that says candidates cannot have felony convictions from which they have not been pardoned or otherwise released from its “resulting disabilities.” It doesn’t define that phrase, which has now invited confusion about who qualifies and who does not.

Her lawyers asked the judge to rule that the city should have declared Bailey ineligible and then place Jefferson-Smith on the runoff ballot with top vote-getter Tarsha Jackson.

Special Judge Grant Dorfman declined to do so, saying that Jefferson-Smith did not “conclusively prove Contestee Bailey’s ineligibility.”

“No grounds were presented that warrant the voiding of the November 5, 2019 election,” Dorfman wrote.

In a separate ruling, Dorman ordered a May 2 runoff between Jackson and Bailey.

The drama might not be over, though. Harris County attorneys say the months-late runoff can’t be scheduled until the lawsuit’s resolution is final, and there is still an opportunity to appeal.

Nicole Bates, an attorney for Jefferson-Smith, said Jefferson-Smith and her legal team would need some time before choosing whether to pursue an appeal.

“I think she probably just needs a moment to process everything that’s happened and then figure out what her next move is,” Bates said.

Officials have said they would need a resolution by mid-March to make the May 2 ballot. Attorneys were confident Tuesday’s decision would leave them enough time to clear that benchmark, even if an appeal is filed.

“The Election Code provides for an expedited appeal of election contests, so it may be final fairly quickly,” assistant county attorney Doug Ray said.

Bailey and Jackson, a criminal justice reformer who had advocated for Bailey to remain on the ballot, celebrated the ruling.

“I’m happy about the decision and more excited about the fact that we can move forward,” Jackson said. “After this being in several courts and cases constantly being denied, it’s obvious that we need to move forward with the first- and second-place finishers.”

Bailey’s team echoed that sentiment. Her attorney, Oliver Jason Brown, claimed a “fourth” victory, citing an earlier, related lawsuit and its appeals.

“She’s ready to run her campaign,” Brown said of Bailey.

The dispute has held up the District B runoff for months after a dozen other city runoffs were decided Dec. 14. Eight new council members and four incumbents who prevailed in those contests were then sworn into office and began their new terms.

District B incumbent Jerry Davis, who met his 8-year limit in the seat, has been serving as a hold-over council member, waiting for his successor to be elected and sworn in.

The litigation began two days after the general election, when Jefferson-Smith filed her first lawsuit asking a judge to declare Bailey ineligible before the vote was certified. Judge Dedra Davis declined to do so.

The city went ahead and certified the votes, and Jefferson-Smith’s team asked appeals courts to order the city to declare Bailey ineligible . Those courts later rejected the requests.

On Nov. 15, Jefferson-Smith filed a second lawsuit, this time an election contest, formally disputing the results and saying the city erred in administering the election. That triggered a portion of state law that Harris County lawyers said forced them to pull the District B race from the ballot.

The case bounced around courtrooms and judges before landing before Dorfman Jan. 24. There, Jefferson-Smith’s lawyers said they sent the city a packet of information on Nov. 13 that purportedly proved Bailey’s felony conviction.

Lawyers for the city of Houston said the documents that Jefferson-Smith sent did not conclusively prove Bailey’s rights weren’t restored. The packet included a Harris County record of the conviction and a Texas Attorney General Opinion stating that restored voting rights don’t mean a restored ability to run for office.

“An election contestant in Contestant Jefferson-Smith’s position has the burden of proving by clear and convincing evidence that voting irregularities materially affected the outcome of the election about which she complains,” Dorfman wrote.

Dorfman clarified in his ruling that he was not deciding whether Bailey was eligible to be on the ballot. Instead, he was ruling whether the city erred in administering the election.

It didn’t, he said, because the packet “does not conclusively prove Contestee Bailey’s ineligibility.”

After reading the decision, Bates — Jefferson-Smith’s attorney — said the ruling in the first case put them in what she called a paradoxical position.They had to prove, with public records, that Bailey hadn’t pursued a pardon. But because she hadn’t pursued a pardon, Bates said, there were no such public records.