The Law West of the Pecos
The courtroom on the second floor of the ornate Reconstruction-era Presidio County courthouse would make a splendid movie set: high ceilinged, oak paneled, tin chandeliered – and sweltering enough on this preheated oven of an early summer morning to make Atticus Finch himself swoon. The main methods of cooling are open windows and closed venetian blinds. (There also is a forlorn window unit, which provides only comic relief and drones so loudly as to render the judicial proceedings nearly inaudible to those in the gallery.) The courtroom can seat a hundred or so spectators, and though it is not filled to capacity, there are a goodly number of Big Bend politocrats in the audience: county clerks, campaign workers, assistant district attorneys, recidivist letters-to-the-editor sorts. They are here to witness the latest round in a good old-fashioned frontier brawl: the race for 83rd District Attorney.
The six-county region of West Texas that comprises the 83rd judicial district sprawls westward from Reagan County (seat: Big Lake) through Upton County (Rankin) and Pecos County (Fort Stockton) and Jeff Davis (Fort Davis) before dipping southwesterly through Brewster (Alpine) to the Mexican border precincts of Presidio County (Marfa). And though the windswept district spans some 300 miles, the warring candidates, Frank Brown and Steve Spurgin, are practically neighbors. Trial lawyers both (Brown in Alpine and Spurgin twenty-six miles west in Marfa) no ambulance driver for the Big Bend Regional Medical Center is safe from pursuit by either one.
Steve Spurgin beat Frank Brown, but failed to win a majority, in the Democratic primary on March 14. (An also-ran from Fort Stockton finished out of the money.) In the April 11 runoff Spurgin beat Brown again – by the teensiest of margins: a single vote out of nearly 5,000 cast. Brown called for a recount, which duly determined that Brown had indeed lost – by two votes.
Unsatisfied with the outcome of the recount, and convinced that Steve Spurgin had canoodled the election away from him, on May 15 Frank Brown filed an election contest – essentially a civil suit – against his opponent, alleging scores of 83rd District residents, primarily elderly Mexican-Americans in Fort Stockton, voted illegally with the help of Spurgin campaign workers, and that Spurgin himself committed election-law violations.
Spurgin countered that he had evidence that some Brown supporters in Fort Davis so enjoyed their experience in the Republican primary in mid-March that they stepped across the hall in mid-April to vote in the Democratic runoff election as well – a violation of state election code. “How long can this drag out?” wondered a character in an editorial cartoon Gary Oliver drew for the May 18 Big Bend Sentinel. “Don’t hold your breath,” warned another character, reading a newspaper story headlined: “KENNETH STARR TO INVESTIGATE DA ELECTION.”
Starr has yet to shine his flashlight under the covers of this race, but only because he’s been crowded out by nearly every badge this side of the Pecos; the region is positively infested with prosecutors and their private dicks. You’ve got the Texas Attorney General and an incumbent D.A. investigating a would-be D.A.; a county attorney, his shamus, a D.A., and the A.G. investigating a weekly newspaper’s investigative reporters; investigative reporters (as God intended) investigating D.A.s; reporters investigating reporters; and would-be D.A.s, of course, investigating one another. When this campaign ends, if it ends, it could touch off a depression.
The hoo-ha began even before the runoff ballots were counted. First, on election day in Alpine, managers of the weekly Avalanche revealed to the Brewster County Attorney that a county election judge had allowed three of the newspaper’s staff (among them this reporter) to vote only minutes after they filled out voter-application forms – a violation of the thirty-day waiting period required under state election code. An April 13 front-page story, “VOTING TEST EXPOSES ELECTION IRREGULARITIES,” explained that the three reporters took advantage of the Democratic Party’s one-stop-shopping special because they had reason to believe the election judge had compromised the “integrity of the election procedures.”
County Attorney Steve Houston wasn’t buying it. He declared he would bring the perps swiftly to justice, and announced that heading his investigation was a retired F.B.I. agent. A rival weekly, the Alpine Observer (yes, there’s a newspaper war in Brewster County!), pounced on the story like Drew Nixon in heat. Under the above-the-fold headline, “ILLEGAL VOTING UNDER INVESTIGATION,” the Observer harrumphed that this particular form of voter fraud is a third-degree felony punishable by up to ten years in the Huntsville Hilton. “This doesn’t sound like investigative reporting,” the Alpine Observer quoted a flack from the Secretary of State’s office, “[but] premeditated abuse of our democracy.”
Whether or not that was the case would no longer be up to Steve Houston to determine. The county attorney recused himself because (a) his discussion with the Avalanche staffers on Election Day qualified him as a witness to the alleged crime, and b) the Big Bend Sentinel disclosed he’d given $1,000 to the Brown campaign (and that his former G-man investigator had donated $200 to the cause). So he handed off the case to the Texas Attorney General. The Alpine Observer was fairly licking its lips: “ILLEGAL VOTING PROBE BRINGS IN AG’S OFFICE.”
The A.G. dispatched a lawyer from its Prosecutor Assistance division, the superhero-monikered Lance Idol. Idol interviewed a few principals, including the election judge and the Brewster County Democratic chairman, but before meeting with even a single member of the Avalanche staff, he too was off the case. For reasons nefarious or not, the hot potato had been handed back to the local authorities, this time to incumbent 83rd District Attorney Albert Valadéz. Valadéz announced that he would present the case to a grand jury in July; at this writing the Avalanche Three remain at large.
Over in Fort Stockton, meanwhile, 112th District Attorney Ori White, whose district overlaps the 83rd, entered the fray. Armed with affidavits from a couple of Frank Brown volunteers (at least one of whom was also a Brown contributor), D.A. White began investigating the Spurgin campaign for “alleged vote tampering” during the early-voting portion of the runoff election. “We are investigating the intimidation of homebound, elderly, and primarily Hispanic voters by certain campaign workers,” White told the San Angelo Standard-Times.
The investigation centered on a $6-an-hour Spurgin campaign worker who distributed mail-in ballot applications to those homebound voters and who then may have exercised undue influence on their ballot choices. But the investigation, and the manner in which its findings were handled, seems designed to provide ammunition for the Brown campaign as much as to root out electoral corruption.
Using an eight-question form Ori White’s office devised, the D.A.’s staff telephoned some seventy-six Pecos County absentee voters. But rather than limiting queries to those determining whether or not the alleged infractions occurred, the questionnaire went so far as to ask these voters to relinquish their right to a secret ballot. As reported by the online Nimbynews.com, question No. 7 asks “who you voted for?” and question No. 8, “Do you know of anyone else who was manipulated during the voting process?” That line of inquiry brought complaints from MALDEF, the Mexican American Legal Defense and Education Fund, that the D.A. himself was intimidating voters and that such interrogations would keep people from voting. (There were also rumblings that the civil rights division of the U.S. Justice Department was curious about the goings-on.)
Once the questionnaires were compiled (but “unwitnessed, unsigned and unverified,” as Nimbynews.com reported), Ori White decided to shield himself from the increasing heat by doing as Steve Houston did: he tossed the case back to the Texas Attorney General. And then Ori White did something extraordinary: He leaked his “findings” to Frank Brown, who used them as the bedrock of his amended complaint against Steve Spurgin.
By the time visiting state District Judge V. Murray Jordan of Brady takes the bench in Marfa on this torrid mid-June Thursday, the clamor throughout the 83rd District has risen as high as the mercury. The judge has three options: he can affirm Spurgin’s victory, he can declare Brown the winner, or he can call a new election.
I’m a little late arriving to court (duty had called for the Avalanche reporter with whom I hitched a ride: he stopped to photograph a grisly wreck on the highway), and I’m relieved to find that Judge Jordan runs a relaxed docket: well past the appointed hour of 9 a.m. he has yet to bring down the gavel. Steve Spurgin is in the gallery area. His eyes flashing like a Pentecostal preacher’s, his hands slapping backs and squeezing flesh, his mouth exceeding the speed of sound, Spurgin energetically turns the room into a convention floor; the guy has so much enthusiasm and so little reserve I keep wishing I had a bone to throw him.
Frank Brown is nowhere to be seen. He may well possess a Brandeisian legal mind, but his charisma fluids need topping off; when a few minutes later he walks into the room, the room yawns. Although it is Brown who contested the election – and therefore he who convened this gathering – he looks as if he’d rather be in the waiting room of an oral surgeon. He wears a tattooed frown and a blue seersucker suit, the latter selected, one supposes, to lighten the former. To make it to the buffer zone of the plaintiff’s table, he must walk the gauntlet of the media hordes – said hordes consisting of a reporter from each of the regional dailies, the Odessa American (for my money the worst daily paper in North America) and the San Angelo Standard Times; reporters from the several Big Bend area weeklies; and from the region’s aforementioned virtual gadfly, Nimbynews.com. (There also is a radio guy from Alpine, but as a Brown campaign contributor, Brown exempts him from the media blackout; in fact, every so often the candidate summons him to the bar for a whispered conference.)
As Brown beelines past the inkstained wretches, a reporter poses a question, but the candidate is in full head-down up-yours mode: he runs a red light toward the plaintiff’s table, where he slouches into a seated scrum with his lawyers: his brother Mark of San Angelo, and Monty Kimball of Alpine. Seated alongside one another, the brothers Brown strike me as grim and grimmer; Kimball, thankfully, is more animated. Indeed, once the trial starts, it is as if Kimball is hooked up to electrodes that shock him out of his chair every time Spurgin’s lawyer, Buck Wood, opens his mouth. Wood, of Austin, is to election law in Texas what Dick DeGuerin or Roy Minton are to criminal law – if the jailer gives you one call, he’s your man. He is a former director of elections for the Secretary of State (a fact about which he is not shy of reminding the Court) and he has seemingly litigated every election challenge since Ma Ferguson prowled the Governor’s Mansion.
But Buck Wood’s grasp of the minutiae of Texas election code can overcome neither the parade of witnesses that Frank Brown has trotted out, nor, especially, the oddball rulings of Judge V. Murray Jordan, a constructionist of the strictest persuasion. Brown’s second amended petition to the Court contained the names, addresses, and voter-registration numbers of some two hundred Mexican-American voters from Fort Stockton who had committed some procedural error or another in handling their mail-in ballots. Brown subpoenaed at least forty of these voters. He trooped them the eighty-five miles to Marfa in rental vans and fed them box lunches while they waited in the courthouse hallway for their turn to testify, through an interpreter, to improper influence from Spurgin campaign workers.
On the first of the two days of trial, Brown’s lawyers called a handful of these witnesses, all disabled, all old, none of whom could read or speak English, to the stand. All testified that they voted from home using mail-in ballots and that they were told for whom to vote. Zacarias Leyva Villa said that Spurgin’s hired hand, Candida Rangel, “came to my house to help me fill out papers. She told me what was going to happen and to vote for that man…. She gave me his card.” Brown’s lawyer, Monty Kimball, asked Leyva to describe the card. Leyva wordlessly dug into his pocket. “I have it with me,” he said, and produced a small document entered into evidence: a red-white-and-blue Texas-flag-themed Spurgin push-card. After the judge dismissed Leyva from the stand, Leyva walked by Spurgin on the way out of court. Spurgin handed the witness a card to replace the one that had been taken from him.
Another witness, Ysidro Onsúrez of Fort Stockton, said that he could neither read nor write in Spanish or English, and that he signs his name with an ‘X.’ Onsúrez is nearly as skinny as the bolo tie he is wearing. He looks like a frail marionette on the stand – hollow-cheeked, toothless, emaciated. He says he had planned to go the polls to vote but that Eva Muñoz, who worked for Spurgin, suggested he vote at home. “I voted in my house because they told me I couldn’t go because of my age,” Onsúrez testified. “When somebody wants help, they give us good treatment.” He said he couldn’t remember for which candidate he voted, “but I voted for the person the lady recommended.”
By the close of the day’s proceedings, Judge Jordan was up to his robes in electoral muck. He had thrown out the votes of five witnesses, and was still faced with the prospect of convoluted and implausible testimony from dozens more. He was also faced with the impossible task of determining not only with which candidate each of those voters sided (not all the witnesses could recall who they voted for), but also for whom the two hundred or so other contested mail ballots were cast.
By the noon recess on Friday, the second day of trial, Judge Jordan’s juris began losing its prudence. He disqualified the mail-in vote of a young woman from Marfa (who attends college in Rhode Island) whose ballot envelope was technically, but through no fault of hers, printed incorrectly. The pre-printed envelope omitted the name of the Presidio County early voting clerk. The envelope read: “TO: Early Voting Clerk,” as required by the Texas Election Code, and included the correct mailing address, as required, but it failed to include the name of the Clerk – a procedural error under the law as amended by the Legislature in 1999. Because of an error, then, by either the Secretary of State’s office, which distributes the ballot envelopes to all 254 Texas counties, or by the Secretary of State’s contract printer, Hart Graphics of Austin, or by the early voting clerk, Judge Jordan accepted Frank Brown’s argument that the woman’s vote be discarded and that she be compelled to reveal for whom she voted. (The voter in question, the daughter of the pro-Spurgin publisher of the Big Bend Sentinel, was herself, Brown believed, a Spurginista.)
Brown and Jordan used the law not in its majesty but in its pettiness; both plaintiff and jurist relied on its letter to defy its spirit. And in doing so, not only did they act in concert to invalidate the vote of a university student from Marfa, they might have disenfranchised a couple hundred other mail-in voters in the 83rd District. And not only did this narrowest of rulings affect this single D.A. election in the remotest region of Texas, it set a dangerous precedent for voiding mail ballots throughout the state. And to my mind, anyway, such a decision harkens back to the bad old pre-Voting-Rights-Act days of voiding ballots for any procedural reason – an undotte
i, an undated poll-tax receipt – a Jim Crow judge could concoct.
And that was before lunch.
After the entire courtroom seemed to move en masse down Highland Avenue to the burger-Mex Mike’s Place, and following a conference in chambers between the principals, the Visiting Judge reconvened court only long enough to declare he’d refereed this bare-knuckled fight long enough; he was ready to drive back to Brady. “The facts of this case are such that the race is so close, it is impossible for the Court to determine the winner,” Jordan ruled, the relief plain in his voice. “I find the April 11 election void and order a new election.”
Brown, naturally, fled without comment on the judge’s order; Spurgin, naturally, held court for anyone who would listen. Though the judge had yet to set an election date, Spurgin was wasting no time. “The campaign begins today,” he said.
Indeed, within days, Spurgin flooded the Big Bend airwaves with a series of blisteringly negative radio spots concerning his opponent’s record as a criminal lawyer. “It’s time for you to know the truth about Frank Brown,” Spurgin told listeners of KVLF-AM in Brown’s stronghold of Alpine. “He makes money from drug dealers, child molesters, and drunk drivers who run over our children. In our first election, Brown represented a scumbag that murdered a fireman in cold blood. His newest project is trying to get off a child pornographer [sic] in Presidio County….”
Brown countered with his own ads, but none that reeked so strongly you could smell the odor through the antenna. One quarter-page print ad, “Election Survival Kit,” portrayed a smiling little girl clad in foul-weather gear – an umbrella, raincoat and rubber boots. I missed it the first time I scanned the paper for political ads; the graphic and type resembled a life insurance company’s.
“In the race for District Attorney, you practically need a survival kit to make it to the polling booth. That’s because candidate Steve Spurgin has soaked this election with mud slinging and name-calling.” It’s cute, I recall thinking, but cute won’t cut the toxic stench of Spurgin’s unrelenting and slimy attacks.
Risking carpal tunnel syndrome, voters in Far West Texas returned to the polls for a third time in five months on August 12 in an attempt to elect a district attorney. This time Brown won, by a margin of forty-one votes. No challenge has been filed. So far.
Bill Adler, a former proofreader for the Alpine Avalanche, is the Observer‘s Big Bend bureau chief and author of Mollie’s Job: A Story of Life and Work on the Global Assembly Line (Scribner, 2000).