An East Texas lawyer on Thursday notified elections and elected officials in both Smith County and the city of Tyler that a temporary restraining order will be filed in district court next week to delay the election for Propositions 1 and 2, which concern allowing beer and wine sales to occur in the city of Tyler and in Smith County JP 2.
Matthew Thigpen, a managing partner at Ladd & Thigpen, P.C., says he and his clients will be in court Monday morning and will ask a Smith County judge to delay the general election from happening Nov. 6 on the alcohol propositions in both Smith County and the city of Tyler.
"It's a simple question of we are filing a lawsuit to see if it was done right," Thigpen said of the petition process in an interview earlier this week. "The lawsuit will be naming the county commissioners court and the city council and those that are involved with the city and the county as to the tabulation of the signatures and certifying them from both those committees."
Thigpen says that the county commissioner's court and the city council are "necessary parties" in the lawsuit because they were required by law to order the propositions to the ballot once they were told there was the correct number of valid petition signatures.
"This is not a lawsuit as to any wrongdoing along those lines," Thigpen said. "It's that we don't even know if they had jurisdiction to make this order because the procedural requirements to get this put on the ballot have not been met."
Thigpen says there are numerous issues on both the city and county's petitions with duplicate names on the petitions, people signing who did not live in JP 2 or Tyler or who have since moved away, and signers omitting information required by Texas law, such as a birth date and address. He says neither side had the correct number of signatures needed to put the issues on the ballot.
"I think part of the problem we're seeing is just sheer mass of information that has to be reviewed, and it's very difficult, if you look on page 1,001 and see John Doe's name to remember his name and signature when you get to page 1,305," said Thigpen.
In addition, Thigpen says 700 pages of the county's signatures are missing a date of issuance from the county. Of those 700 pages, more than 3,700 signatures were counted as valid by the county registrar toward the total number of signatures needed to put the issues on the ballot. Thigpen also says that none of the copies of signature pages his clients have received from the county have the county seal stamped on them.
Texas Election Code Section 501.026 states "[a] petition must show the date the petition is issued by the county clerk and be serially numbered. Each page of a petition must bear the same date and serial number and the actual seal of the county clerk rather than a facsimile of that seal."
"We have questions about the seal on every single one of the county, because so far I cannot find any evidence that they actually have the county seal on them, which would potentially nullify all the signatures for the county," said Thigpen. "So the city did comply with these requirements, so clearly it's not that large of an issue."
Thigpen says he has been working with several concerned citizens, including his clients, for several months after they say the county did not properly respond to multiple public information requests for copies of the petitions.
"The city indicated to us that they would comply. It would just take them a little bit of time because of the massive amount of documents that they had to review," said Thigpen. "The county, however, took a different approach and indicated to at least one of the concerned citizens that at this point, they had produced enough documents to satisfy what they felt was part of the public information request, and that any additional document request would not be granted."
If the judge decides the election cannot or should not be delayed, Thigpen's clients will ask that the election results be enjoined, or kept, from being tabulated and certified to the Secretary of State's office in Austin. In addition, the same will be asked for all early voting ballots that have been cast.
"At this point, our position simply is, we have questions, we have concerns, we have data that supports the fact that we do not believe that the numbers were met," Thigpen said. "Why those were not addressed by the responsible parties, we do not know."
The Smith County Commissioners Court responded Thursday afternoon in a written statement.
"Smith County Elections Administrator, Karen Nelson consulted with the Secretary of State's Office to confirm that the calculation methods for the mandatory number of signatures is correct," the statement asserts. "The requirements do not require absolute perfection, but in fact, allow for some discretion to estimate a range and waive defects of a limited nature."
It continued: "Any confirmed instances of ineligible voters were not considered in the final tabulation of verified signatures. The Commissioners Court merely places the proposition on the ballot and does not opine on the merits of alcohol sales. The matter is now before the voters and elections procedures were properly followed."
Tyler City Attorney Gary Landers confirmed the city received Thigpen's courtesy notice of the lawsuit seeing the temporary restraining order.
"The letter is unclear exactly what he intends to do and if the City is directly involved," Landers said in a statement. "We have exchanged emails with him in which he says he intends to include the City in the legal action."
Landers would not comment any further until the suit is served.
"The city continues to be very confident that we demonstrated due diligence and accuracy in the processing of the petitions and upheld our legal obligation to call the election and allow the citizens to exercise their right to vote based upon our findings," he concluded.
Local group Buy Local First! also released a statement Thursday afternoon supporting the vote.
"Once again we stand by the County Commissioners and City Council and their staffs who did their jobs as required by Texas law," the statement said. "The opposition has now raised this issue in three jurisdictions - City of Tyler, Smith County and Sulphur Springs - and in all three their claims were resoundingly rejected."
"Every citizen of Tyler and Smith County should be outraged at these frivolous actions and show their displeasure by making their voices heard on Tuesday with a resounding vote for Props 1 & 2 on both the City of Tyler and the Smith County JP 2 ballot," the statement continued.
Buy Local First's treasurer Bob Westbrook elaborated on that position in an interview Thursday night. "It's not that we didn't expect it, it's just that we didn't expect an injunction to stop the election," he said. "We knew also that it had been awful quiet and I think that being quiet for such a long period of time we knew something was up, and all of a sudden, here it is. We view it as just a last, desperate act."
"Our view is that our elected leaders of the city and the county have done their due diligence. They certified the signatures on the petitions and then called the election once they had enough signatures on the petitions to do so and we feel that they have done their job," Westbrook said.
If granted, the temporary restraining order would last for 14 days, at which point Thigpen's clients would file an injunction until it can be determined whether there were enough valid signatures on the petitions.
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