TEXAS SUPREME COURT DENIES REVIEW OF PENA'S APPEAL: 2020 ELECTION WIN VOIDED, UPHOLDS NEW ELECTION ORDER

Special to El Rrun-Rrun

The Texas Supreme Court has denied Brownsville Independent School District board member Minerva Peña's appeal to a 13th Court of Appeals decision denying her a new trial and which upheld the ruling by a visiting judge in the 107th Distict Court that illegal votes cast in the 2020 election made results void and that the district should hold a new election.

The Supreme Court's decision to deny Peña's petition for review was filed on Friday, Nov. 10.

"This means that the BISD could appoint someone a board member to replace Peña, and that it an election be held for the position as early as March," said attorney Gilberto Hinojosa, who represented Marisa F. Leal in her efforts to overturn the election results based on her documentation in the trial court of  at least 24 illegally cast votes in the election.

On November 3, 2020, an election for Place 6 on the board of trustees with Leal, Peña, and Joe A. Rodriguez as candidates. After the results of the election were canvased Leal was declared the winner by one vote. Then, on December 3, 2020, after a recount requested by Peña was completed, a final and official canvas and certification of the general election results for Board of Trustees Place 6 showed 16,552 votes for Peña, 16,544 votes for Leal and 10,575 votes for Rodriguez. Peña was declared the winner, having received 8 more votes than Leal.

On December 30, 2020, Leal, filed an election contest in the 107th District Court requesting that the results of the November 3 election for that Place 6, be declared void because numerous ballots were cast in violation of the Texas Elections Code, and therefore were illegal votes, such that the true outcome of the election could not be determined. Leal requested that the Court declare the election void and that it order a new election.

The courts have ruled that if the trial court ruled the votes illegal, it does not have to ascertain form whom then votes were cast.

Following a bench trail before Visiting Judge Joel Johnson, On January 27, 2022, the trial court entered its final judgment finding that “24 (twenty four) illegal votes were cast in this election and that those 24 (twenty-four) votes were not countable “ and that those “twenty-four (24) illegal votes cast in  (the)  election [were] equal to or greater than the number of votes necessary to change the outcome of the election.” 

The Court also found that “election officers and other persons officially involved in the administration of the election made mistakes which allowed illegal votes to be cast and which have made it impossible to determine whether the outcome of the contested election, as shown by the final canvass, is the true outcome."

Among the illegal votes cast were 16 of persons who the court deemed were not eligible to vote in the BISD election and who shared a residence/address of a non-residential warehouse near the Brownsville airport. Other illegal votes were of people who received assistance illegally, and mail-in ballots which were not signed.

Those 24 illegal ballots – which Peña did not dispute – made it impossible to determine the winner since the number of illegal votes cast in the election far exceeded the number of votes (eight)
necessary to change the outcome of the election.

Leal also charged that the Cameron County Elections Administrator’s office affected the outcome of the election because of these repeated mistakes in allowing for the mail ballots that had been illegally cast to be counted, it is impossible to determine which races listed in the General Election ballot these voters actually voted in and who these voters voted for.  

"It cannot be disputed that “the number of illegal votes is equal to or greater than the number of votes necessary to change the outcome of the election’ in question," Leal asserted in her brief.

The court also found that election officers and other persons officially involved in the administration of the election made mistakes which allowed illegal votes to be cast and which have made it impossible to determine whether the outcome of the contested election, as shown by the final canvass, is the true outcome.”

It didn't help that Peña's lawyers never entered any new evidence in their petition for a new trial or appeals, and that they asked for a limited part of the court reporter's transcript, automatically giving tacit approval to Leal's assertions and the trial court's findings. 

And  now that the Texas Supreme Court refused to review the 13th Court of Appeals upholding the trial court's ruling declaring the election void and ordering a new one, how fast will the BISD board move to appoint a replacement for Peña and order a new election?