Birdwell to Stay on Ballot [UPDATED]

Democrats are taking state Sen. Brian Birdwell to court over his Texas residency. But why do we care where he's lived?


Update 8/21/10 Democrat John Cullar dropped out of the race yesterday evening, just in time to remove his name from the November ballot. The Democrats can still pursue the case in the hopes the state Supreme Court will overturn the Fifth Court of Appeals’ decision, but barring judicial action, Birdwell will be the only name on the ballot and keep the seat.  I’ll post more on this later shortly.

Update 3:51 p.m. The Texas Tribune now reports that the Fifth Court of Appeals ruled in favor of Sen. Brian Birdwell, allowing him to stay on the November ballot.

Their report:

State Sen. Brian Birdwell, R-Granbury, can remain on the November ballot, the state’s 5th Court of Appeals ruled this afternoon. Texas Democrats had sued to remove him, saying his vote in the Virginia elections in 2006 made him ineligible to serve in the Texas Senate. The court’s ruling isn’t yet available, but officials with both parties say the court told the lawyers this afternoon that Birdwell will remain.


In Senate District 22, the countdown is on—and I’m not just talking about the 80s anthem.

5 p.m. Friday is the deadline for withdrawing and then replacing candidates on the November ballot, and newly elected state Senator Brian Birdwell will either be a step closer or farther away from a November win. Electorally, the district is of the maroon variety, and normally, it would be hard to imagine a Democrat having much of a shot. But Sen. Birdwell must wait for Dallas’ Fifth Court of Appeals  to determine if he meets a seemingly basic requirement—residency.

Birdwell’s been a busy man; after surviving the 2001 9/11 Pentagon attacks, he stayed in Virginia for intensive healthcare to keep him alive and treat severe burns. While undergoing treatment, Birdwell, a native Texan, also founded Face the Fire Ministries to help burn victims through Christianity. He gradually recovered and even started going fishing again. It’s undoubtedly impressive, but the problem is, it’s all in Virginia. Even the fishing license.

To be a Texas state senator, you have to live in the state for five years. Courts have been pretty understanding when it comes to living in a specific districts, even allowing folks who own lots in their districts to claim it as residency. But Birdwell’s case is a little less gray. Not only did he only just arrive back in Texas in 2007, he voted in Virginia in 2006 and 2004.

Now Texas law allows someone’s home to include a “fixed place of habitation to which one intends to return after any temporary absence.” According to a June 24 interview with The Texas Tribune, Birdwell insists he always intended to come back to the Texas and he was only temporarily in Virginia. (Birdwell’s campaign did not respond to my interview requests.)  “[T]hroughout my military career, then upon my retirement the medical necessity of remaining in a temporary absent state, remaining in Virginia to complete my medical care,” he said. “[I took] actions to prepare me to move home. Those facts and circumstances lay out that I’m a Texas resident.”

Thing is, that might be a problem for Virginia. Virginia voting is pretty specific. Number one requirement according to the State Election Board: “Be a resident of Virginia (A person who has come to Virginia for temporary purposes and intends to return to another state is not considered a resident for voting purposes).”


Of course, there’s a separate matter: whether residency really matters. I’m not entirely sure why it should to be honest. The requirement seems to assume that it takes five years to know a place and therefore represent its population. But Birdwell was born here and he’s spent much of his life in the state. If he had voted absentee from Texas, would that have somehow tied him to the community more closely? Hardly. Yet had he been more careful to stick with absentee voting, there wouldn’t be such a mess.

Democrats are eager to say that should the court allow Birdwell on the ballot, it will mean the end of the residency requirement. If this is considered residency, they say, anything goes. But why is that such a bad thing? After all, communities these days are transitory, and our 31 senate districts are enormous. Given the diversity within each district, knowing the place or the culture would take a lifetime. Someone who’s lived in part of Dallas five years or more still doesn’t necessarily know anything about Waco or its population—yet both cities will be in Birdwell’s district. In fact, cities often lose their senate representation when officeholders step down and new ones come in, simply because each district has a whole lot of land in it. Five years is arbitrary, and there’s no guarantees a candidate knows his or her district at that point.

It seems like voters pick who they like best, and a candidate out of touch with the community won’t get elected, whether they’ve lived there two years or twenty.

But the Democrats have to take the breaks they get—and this is their best shot for a chance at the seat. The state party filed a suit over the matter, and Birdwell’s defenses have largely focused on technicalities. (Of course, in some respects, the entire issue is one giant technicality.) “His position is that irrespective of his actions in Virginia, he intended to be a resident of Texas continuously,” Birdwell’s Democratic opponent John Cullar told me. “The problem with that approach is that he registered to vote in Virginia.”

Of course, Democrats didn’t even have a nominee for the seat until shortly before they decided to file suit. Cullar insists this is about what’s proper. “In making my decision, this decision was not based on Democrat versus Republican or right versus left, it was based on right versus wrong,” declares the candidate. But the moral high ground can be a tough place to camp, particularly considering that the Democrats weren’t even going to give voters a choice in November until the residency questions began to loom.

For now Birdwell holds the seat, having won a special election to finish out former state Sen. Kip Averitt’s term with the help of Tea Party activists. He’s also the nominee for the seat in the November election. Should the courts rule him ineligible,  however, the local GOP will have to decide if they want to appeal to the Supreme Court and/or quickly replace him on the ballot. Everything’s got to be done by 5 p.m. tomorrow, unless of course the courts allow a deadline extension.

Of course, whoever loses at this round will likely appeal to the Supreme Court, which is far from comforting for Democrats. “I do think it’s fair to say that many Texas Democrats have expressed concern about how an all-Republican Supreme Court would rule on this matter,” says Jeff Rotkoff, executive director of the House Democratic Campaign Committee, “in order to protect what they might believe to be a Republican Senate seat.”

Or maybe they’ll simply decide residency isn’t quite as important as it once was.