Boren wins, city must put him on District 4 election ballot, Seventh Court rules

The city was ordered to put Gary Boren’s name on the ballot in the June 27 special election for City Council District 4 after the Seventh Court of Appeals ruled in his favor morning Friday. The city followed that order a few hours later.

The city previously told Boren he was not qualified to be on the ballot because he only lived in the district for two months instead of six months or more.

The city cited state law. But Boren cited Lubbock’s charter, which simply requires a candidate to be a resident at the time of filing.

The city claimed state law controls. Boren claimed state law gives the charter control of this issue.

The Seventh Court ruled the charter controls.

“The dispute is purely legal: does the Charter’s ‘at the time of filing’ standard displace the Election Code’s six-month default? Boren says yes; Paz says no,” the court’s opinion stated.

“The strict-construction principle confirms our conclusion. Any provision restricting the right to hold public office must be construed against ineligibility. … The Charter’s text supports Boren. The canon of construction supports Boren. We agree with Boren,” the justices ruled.

Meanwhile, while people were waiting for a ruling, the Seventh Court corrected Lubbock activist Mikel Ward for emailing to the justices personal email on behalf of Boren. More on that below.

“The ballot is the people’s instrument. Access to it, both the right to vote and the right to seek office, sits at the foundation of self-governance.”

opinion from the Seventh court of appeals

Boren said in a written statement, “I’m proud to share that the 7th Court of Appeals in Amarillo has ruled in my favor, ensuring that I will be on the ballot for Lubbock City Council, District 4. City officials twice claimed I wasn’t qualified to run. The court unanimously rejected those claims and affirmed what the City Charter has made clear.”

Boren is now in the race with Tim Green and Bill Curnow, but deadline for applications is April 27.

Before the special election is the regular City Council election on May 2. Click here to see our coverage of those races including early voting locations, Q&As with candidates and profiles.

LubbockLights.com reached out to the city to invite comment. Look for updates the invitation is accepted.

Mayor Mark McBrayer disagreed with the stand taken by the city staff.

Shortly after the ruling, McBrayer said, “Clearly, the right decision and the one I have advocated since the very beginning.”

“I regret that a qualified and clearly eligible citizen has had to hire an attorney at his expense in order to get a hearing before the Court for an order directing compliance with our City Charter. I further regret that taxpayer funds have been expended on litigating this issue in the Court of Appeals. I am pleased, however, that the citizens of District 4 now will be able to make the decision whether Mr. Boren or someone else is going to represent them,” McBrayer said in an additional statement several hours after the ruling.

More from the ruling

The city’s legal argument on behalf of Paz was the Charter had nothing to say about a duration of residency – instead calling for a point-in-time test. Those are not the same. Because the Charter was silent on duration, so Boren had to fall back on the state law’s default duration of six months.

Boren argued otherwise. The Charter did in fact speak to duration, and the duration was zero. And so, state law gives Lubbock’s charter the right to set the residency requirement.

The Seventh Court took Boren’s view, saying, “The charter’s ‘at the time of filing’ standard is not silence. It is an express, point-in-time residency requirement authorized by … [the Texas Election Code] and enabled by … the Local Government Code. We conclude Paz misapplied the law on Boren’s length of residency.”

“The ballot is the people’s instrument. Access to it, both the right to vote and the right to seek office, sits at the foundation of self-governance,” the opinion said.

The court concluded by ruling, “We trust Courtney Paz, Lubbock City Secretary, will withdraw her administrative declaration of Gary Boren’s ineligibility to run for Lubbock City Council District 4, accept his ballot application, and place his name on the ballot for the … Special Election for District 4.”

Click here to read the ruling.

Mikel Ward filing explained

Before the Seventh Court ruled, political activist Mikel Ward asked justices to side with Boren. But she sent her request to the justice’s personal email addresses rather than filing anything officially in court. The court rejected her writing for that reason.

The court publicly acknowledged the situation a little more than a week ago.

“Please be advised that this correspondence constitutes an improper ex parte or other private communication under the Code of Judicial Conduct and will not be considered by the Court in the resolution of this original proceeding,” the clerk of the court wrote.

Ward told LubbockLights.com, “I wasn’t trying to bypass. I called them before I sent something and said, ‘Is there an e-mail for the court?’ ‘No, we don’t have an e-mail. We don’t do anything like that.’”

“They told me I could e-file something and I said, ‘By the time I do that, I can send them individually,’” Ward said.

E-filing sounded complicated. Because of her political activism over the years, she had email addresses for Chief Justice Judy Parker and Justice Larry Doss. She did not have an address for Justice Alex Yarbrough.

Ward said, “Gary [Boren] had nothing to do with my actions. I’ve always fought for transparency, integrity & consistency based on facts not favoritism.”

Please click here to support Lubbock Lights.