Motion to dismiss Precinct 3 election lawsuit denied

A judge has ruled against dismissing a lawsuit that could possibly void the March 2020 Hidalgo County Precinct 3 Primary election and will hear a second motion to dismiss that same lawsuit next week.

Visiting Judge Jose Manuel Bañales ruled to not dismiss a lawsuit filed by outgoing Hidalgo County Precinct 3 Commissioner Jose “Joe” Flores to dismiss the results of the local March 2020 Democratic Primary.

Hidalgo County Precinct 3 Commissioner Jose “Joe” Flores and Everardo “Ever” Villarreal.

In that election, businessman Everardo “Ever” Villarreal, beat Flores in the primary by 92 votes. Citing more than 1,000 illegal votes, Flores filed the lawsuit after the March Democratic Party primary election and requested that the results be declared void and a new election be held.

“Villarreal built his political campaign around a promise of honesty and transparency. The discouraging reality, however, is that Villarreal’s campaign demonstrated the extreme opposite…His campaign paid many voters to vote for him,” according to the lawsuit. 

“Villarreal’s campaign altogether consciously ignored the law in order to obtain more votes. Victory at the expense of the true will of the voters is not a victory at all but rather a slap in the face to our democracy and the citizens of Hidalgo County Precinct 3. A new election must be ordered to restore trust to the citizens of Hidalgo County Precinct.”

Villarreal responded by filing a motion to dismiss the lawsuit June 1 claiming that his rights were being violated under the Texas Citizens Participation Act.

According to an order filed Monday, Judge Bañales dismissed the motion on the day of the hearing Friday, June 19. 

“The sole and principle issue in any election contest is whether illegal votes were cast and if so, whether enough illegal votes were cast such that the outcome of the election would be different, not whether a candidate’s free speech rights or free association rights were violated or adversely affected,” the order signed by Bañales said. “Moreover, if this contest were to be dismissed under the TCPA, then every election contest henceforth would be subject to summary dismissal by simply filing a TCPA dismissal motion.”

Now Bañales is set to hear on a summary judgement hearing Wednesday, July 1 after Villarreal filed a June 8 motion to dismiss the lawsuit based on a lack of evidence.

In the 17-page motion, Carlos Escobar, a lawyer representing Villarreal, brought up how Flores refused to answer the questions asked of him during his deposition and that Flores’ legal team did not present any evidence of illegal voting during discovery. 

“There is no evidence that 93 or more illegal votes were counted in the March 3, 2020 Election for Hidalgo County Precinct 3 Commissioner,” the motion reads. “There is no evidence that the outcome of the contested election, as shown by the final canvass, is not the true outcome. There is no evidence that illegal votes were cast in the March 3, 2020 election and that different and correct result would have been reached by not counting the illegal votes.”

Escobar discussed the lack of evidence in the June 19 hearing where he called the affidavits collected by Flores’ legal team as “Defective and inadmissible.” They included testimony from an individual claiming to personally know that several of the people who voted for Villarreal and required assistance at the voting polls due to a disability they didn’t have and an individual who admitted to being paid $300 for his testimony.

When reached for comment, Villarreal directed all questions to his attorney, Javier Peña, who expressed confidence in the upcoming summary hearing.

“They have no evidence of any wrongdoing, they’ve been trying to get some affidavits but all we’ve seen in the discovery was that Joe Flores was paying for votes and his lead investigator on the record offering $300 for people to testify against Ever,” Peña said, adding that he’s not surprised at how Bañales ruled on their initial order to dismiss the lawsuit.

“With the TCPA being relatively new, the judge may not have felt comfortable dismissing it on those grounds, but the judge didn’t comment specifically on the evidence or lack of evidence,” Pena said. “We felt that because of that and Flores refusing to answer questions on his deposition and the paid testimony, this is a frivolous case from someone who doesn’t want to accept the will of the voters. This is all sour grapes on his part.”

When reached for comment, Flores directed all questions to his attorney Orlando Garcia who noted the time sensitive nature of the case.

‘If a new election has to be held, I don’t know how quickly the elections department can act on it but we are cutting it pretty close,” Garcia said. “They need to be able to submit the ballots for the November general election.”

As Villarreal has no Republican opponent, he would be the Precinct 3 Commissioner elect following the November election if the March election isn’t declared void.

“The summary hearing is similar to the hearing we had but that one was with a motion that argues that Villarreal’s constitutional rights were benign infringed upon by our lawsuit which the judge took as an exaggeration and found the law was applied rightfully,” Garcia said. “We are very confident the summary judgement motion, like the TCPA judgement, will be denied and we will proceed to trial July 7 and call the witnesses.”

Garcia defended the testimony he has collected and said that his legal team has collected more testimony from people who didn’t have to be paid for their time.

“We have the 93 votes we need to turn the election the other way, but all we really need to establish is that there were irregular votes,” Garcia said. “It’s not the right way someone should be in an elected position.”