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13th Court of Appeals sides with Mayor O’caña in election contest

EDITOR’S NOTE: This story was originally published Friday, March 29 and updated on Wednesday, April 3 to reflect the print version.

The 13th Court of Appeals handed down a decision last week in the Mission election contest — and sided with Mayor Armando “Doc” O’caña.

Former Mayor Norberto “Beto” Salinas filed the election contest last year, claiming the O’caña campaign bribed voters and manipulated mail-in ballots during the June 2018 mayoral runoff. After a two-week trial, state District Judge J. Bonner Dorsey said the evidence convinced him Mission must hold a new election.

Armando Ocana 2015The 13th Court of Appeals, however, reversed Dorsey on March 29.

Two justices determined that Beto Salinas, who depended on expert witness testimony to estimate the number of tainted ballots, hadn’t actually proved his case. A third justice dissented.

“We reverse the trial court’s judgment declaring the results of the June 9, 2018 Mission mayoral run-off election void, and we render judgment denying Salinas’s election contest suit,” according to the opinion released by the 13th Court of Appeals. “In order to expedite final resolution of this matter, no motion for rehearing will be entertained.”

Beto Salinas may appeal to the Texas Supreme Court.

“I think when you read the opinion, it makes absolutely no sense,” said attorney Rick Salinas of Mission, who represented his father.

The lawsuit pitted Beto Salinas, a no-nonsense mayor who governed Mission for two decades, against O’caña, a mild-mannered member of the City Council nicknamed “Doc” — a reference to his doctorate in educational administration.

O’caña and businessman Jaime Gutierrez challenged Beto Salinas in May 2018.

Beto Salinas won 49.96 percent of nearly 6,200 ballots cast, falling three votes short of a majority, according to Hidalgo County Elections Department records.

That sent Beto Salinas to a runoff with O’caña, who placed second.

O’caña narrowly defeated Salinas in June, winning about 51 percent of nearly 6,800 ballots cast, according to Elections Department records. He won by 157 votes.

The results sent a shockwave through Mission, where Beto Salinas wielded unquestioned authority. After initially accepting the results, he filed a lawsuit.

Attorneys for Beto Salinas claimed the O’caña campaign bribed voters and manipulated mail-in ballots.

The trial, which started in September, riveted the Hidalgo County Courthouse. Witnesses testified about bribes and stacks of mail-in ballots collected by politiqueras.

To win election contests, attorneys typically attempt to prove the number of illegal ballots exceeded the margin of victory.

Rick Salinas took a different tact.

Throughout the two-week trial, Rick Salinas adopted the role of a prosecutor, attempting to prove the O’caña campaign had become a criminal conspiracy.

While he elicited explosive testimony about illegal activity, Rick Salinas didn’t call enough witnesses to challenge the margin of victory. To cast doubt on the results, Rick Salinas hired an expert witness who claimed, based on a theory about the stamps on mail-in ballots, that hundreds of votes showed signs of illegal activity.

Attorneys for O’caña argued the stamp theory didn’t hold water.

Moments after the attorneys concluded their closing arguments, Dorsey handed down a decision from the bench.

“I find the evidence is clear that there was a combination or conspiracy by the campaign of Dr. O’caña to do this. And I say that because the evidence is that several members of the campaign were working together in concert to bribe voters, to take the mail-in ballots and mail them separately,” Dorsey said on Oct. 5. “I find by clear and convincing evidence that the number of illegal votes was in excess of 158 — somewhere in excess of 158. There’s no way to possibly determine.”

Attorneys for O’caña appealed the decision.

The 13th Court of Appeals assigned the case to Chief Justice Dori Contreras, Justice Gina M. Benavides and Justice Leticia Hinojosa.

Contreras and Benavides concluded that Beto Salinas hadn’t proved the number of illegal votes exceeded the margin of victory, the determining factor in election contests.

“Considering direct evidence of both bribed votes and harvested ballots, there were at most 31 votes for which there was clear and convincing evidence of illegality—far short of the amount which would cast doubt on the results of the election,” according to the opinion. “This case therefore hinges on the circumstantial evidence of illegal votes.”

While they weren’t impressed by the stamp theory, the justices wrote that allegations of voter fraud concerned them.

“This case has uncovered clear and convincing evidence of election fraud, resulting in at least 31 illegal ballots being cast. This is extremely troubling. But the evidence in this case showed that both candidates benefitted from these irregularities,” according to the opinion. “In any event, our inquiry in this proceeding is not to determine whether crimes have been committed, nor is it to determine whether there was a ‘conspiracy’ to obtain illegal votes, as Salinas alleges—we confidently leave those questions to the able hands of the criminal justice system.”

Hinojosa dissented.

“As with the majority, I am confident that the criminal justice system is available to prosecute any potential conduct that violates the Texas Penal Code, Texas Election Code, and applicable federal law,” Hinojosa wrote in her dissent. “But the criminal justice system’s primary goal is not to remedy the effect of illegal votes. Unlike the majority, I do not believe that the civil justice system is powerless to remedy the tainted mayoral runoff election that is the subject of this appeal.”

Hinojosa found the circumstantial evidence convincing. She also cited trial transcripts throughout the dissent.

“In closing, the majority puts forward that its holding safeguards a voter’s right to have his or her lawful vote counted. I believe that it does not,” Hinojosa wrote. “By reversing the trial court’s judgment, the majority allows lawful votes to be diluted and may dissuade voters from participating in the electoral process.”

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