A motion to reconsider a summary judgment dismissing Precinct 3 Hidalgo County Commissioner Joe Flores’ election contest challenging the results of his March primary race was upheld Monday — further solidifying the outcome in favor of his challenger, and despite the court acknowledging that illegal votes had been cast in the race.
Visiting state District Judge J. Manuel Bañales, of Corpus Christi, dismissed the election contest on July 14 following months of delays and appeals. Flores’ attorneys had filed a motion for the judge to reconsider his decision, which Bañales upheld late Monday evening.
Everado “Ever” Villarreal won the March primary race for Precinct 3 commissioner with 10,037 ballots cast in his favor to Flores’ 9,945.
On Tuesday, his attorney Javier Peña said the judge’s decision to uphold the dismissal came after a lengthy hearing and a late-night order being handed down.
Peña also said that while Flores’ attorneys could submit an appeal, he considered it an “exercise in futility” at this point.
“Joe’s team just made too many procedural errors,” Peña said, referring to allegations of illegal voting the attorney said were not submitted in a timely manner. “The fact that they were happy to just make up evidence I think put a sour taste in the judge’s mouth about this case. There’s no need to try it in the judge’s opinion.”
Among the allegations in the election contest Flores filed on March 24 is that people were paid to vote for Villarreal.
“I know that Joe Flores’ team was out there spreading a bunch of rumors and lies about illegal activity on the Ever Villarreal side,” Peña said. “All the evidence proved that all of those allegations only pertained to one side, and that was Joe Flores’ side. There’s been no evidence that Ever did anything wrong, and the only evidence that they’re able to come up with was fake affidavits and people who they paid $300 to testify.
“I think the judge dismissing the case will finally bring some kind of stability to the west side. Ever looks forward to starting to serve the public.”
Flores’ attorney, Orlando Garcia, said that an appeal notice was filed Tuesday afternoon. Garcia also continued to point to allegations of people being paid to vote for Villarreal, which the court acknowledged but ultimately decided the votes in question were not enough to sway the election.
Specifically, there were 26 votes that the court had found were illegally cast, mostly for Villarreal, in a race that was decided by 92 votes. The court also found that felons who were not eligible to vote cast ballots.
“Of the 26 illegal votes cast and counted, 23 voters stated by affidavit that they voted for Contestee (Villarreal),” read the judge’s order filed Tuesday morning, modifying his July 14 judgment to dismiss. “From the 92-vote margin that Contestee has over Contestant (Flores), the Court must subtract 21 votes, reducing Contestee’s margin to 69.
“Of the remaining three votes, two illegal votes were cast by felons who were not eligible to vote and the other voter did not know how her vote was cast; although there is no indication as to how each of the three voted, the total number of illegal votes is not equal to or greater than the number of votes necessary to change the outcome of the election.”
Garcia considered the order a validation of the allegations levied during the proceedings.
“The modifying order that came down last night accepted those paid votes, and rightfully so,” Garcia said. “We had a hearing and we discussed that evidence. The court did find that that evidence — that the people who were paid to vote, voted illegally. They voted for Ever Villarreal.”
Garcia said he feels Bañales is holding Flores’ team to a higher standard given the lack of guidance in the law, and hopes the appeal is considered quickly.
“It’s still an extremely uphill battle for us because of the time constraints,” Garcia said. “I think that the 13th Court of Appeals has already relayed to us that they understand the exigency here when they dismissed Mr. Villarreal’s initial appeal. In their opinion, they understood that this is a primary election contest and understood the exigencies, so they already know what’s going on.”
He said that he hopes to have a ruling from the 13th Court of Appeals by the beginning of August.
Also in the order, the court acknowledged Flores’ frustration over the pandemic having an affect on the proceedings.
“At the outset, (Flores) lamented the impact that the COVID-19 pandemic has had on this case. He rightly points out that this Election Contest should have been concluded by mid-April. But, the delay has caused him ‘irreparable harm’ with all the proceedings, in and out of court, that have occurred since the Supreme Court Emergency Orders were issued. Similarly, Contestee (Villarreal) replies that COVID affected both parties and the Court,” Tuesday’s modified order read.