032514.WESLACO_ELECTIONS.jm.003

Weslaco City Commissioner Lupe Rivera listens as mail-in ballots are contested in the 139th state District Court at the Hidalgo County Courthouse on Tuesday, March 25, 2014, in Edinburg. photo by Joel Martinez/ jmartinez@themonitor.com

EDINBURG — A judge ordered Weslaco to call a new District 5 City Commission election “as soon as possible” Thursday after weeks of considering arguments in an challenge to last fall’s election results.

“This is a victory,” candidate Letty Lopez said after the decision. “The judge called it the best that he could, getting the facts on each voter.”

Lopez sued Commissioner Lupe Rivera after she lost the seat by only 16 votes in November. She alleged widespread voter fraud in the contest and challenged some 44 votes.

Visiting Judge Menton Murray Jr. sided with Lopez on most of those Thursday in a detailed decision that included proclaiming some Rivera family members had deliberately committed fraud with regards to at least two of the votes.

Based on testimony from voters, Murray subtracted illegal votes from the totals of both sides — but mostly Rivera — that reduced the margin between the candidates to two votes. The judge also rejected 11 ballots that were undetermined in which candidate they supported.

Because that number exceeded what he found to be the margin of victory, Murray ordered a new election.

Rivera’s attorney, Gilberto Hinojosa, said he would appeal the decision. Both sides said that would be an expedited appeal, but its timeline was unclear Thursday. Rivera will not be removed from his seat in the meantime.

If the seat were to switch from Rivera to Lopez, it would flip the commission’s majority in the politically polarized city.

Murray’s findings included that the mail-in ballots and applications of Jacqueline and Ricardo Garcia — the sister and brother-in-law of Rivera’s son’s girlfriend Illiana Guerrero — had clearly been forged without the knowledge of the couple, who live in Mercedes.

“It is clear that several frauds were committed with someone, my guess would be Illiana Guerrero Rivera, filing a change of residency form and someone in the old Rivera homestead applied to vote by mail and voted by mail,” he judge said. “The court further finds, based on this, that the votes were cast for Lupe Rivera.”

As Rivera, his son and Guerrero reacted to the decision afterwards with Hinojosa, they expressed surprise that the judge had called those votes for him.

VOTE BREAKDOWN

Other votes challenged included mail-in ballots that Lopez’s attorney Jerad Najvar said had been cast with unauthorized assistance and people who voted from residencies where he argued they didn’t really live.

Murray sided with Najvar in his legal arguments that mail-in ballots where voters had received assistance or had someone else drop them in the mail required an assistant’s signature to be legally counted.

The judge rejected 14 of those where there was evidence they had been for Rivera and subtracted them from Rivera’s total. He also threw out seven more mail-in ballots for whom the votes were unclear.

As for voters in the commissioner’s house, the judge threw out the ballot of a family friend who apparently had not been there in some time. But he upheld the votes of two Rivera children and Guerrero, who testified that she was Lupe Rivera Jr.’s common-law wife. She had voted from a different address, but called it an accident.

Murray called the votes of Delma Cadena and six family members valid at 1518 E. Sixth St. — Cadena’s parents’ house, where 23 people were registered to vote — noting that all considered it the family home and had voted there for a decade or more.

He tossed out the votes of three Rivera family members at 316 W. Los Torritos — noting  they had registered there suddenly before the election with no apparent change to the residence where they had previously voted — but called it unknown who they actually chose. He upheld two other votes at that address.

He threw out the votes of two people at 717 N. Padre, also saying they had registered there suddenly with no change to their previous residence. Murray noted that one’s vote was unknown and the other, Tomasa Cavazos, testified she had voted for Lopez.

That vote, along with two others of Cavazos family members who live in Mercedes, were deducted from Lopez’s total vote count.

Murray did not address Lopez’s sister and brother-in-law, who were not part of the election contest, but whose residencies at her home were challenged during testimony.

Finally, the judge opted to uphold the decision of an Hidalgo County ballot board in rejecting seven mail-in ballots due to signature discrepancies, despite seven witnesses testifying that they had intended to cast those votes for Rivera.

Hinojosa called himself surprised by the overall decision and ready for an appeal.

“He heard seven people testify that this was their ballot, that they signed the ballot, and he ignored that,” he said. “Had he counted those ballots with his calculation, Mr. Rivera would have won.”

efindell@themonitor.com

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Elizabeth Findell covers Pharr, San Juan, Alamo, Donna, Weslaco, Mercedes, Progreso and general assignments for The Monitor. She can be reached at efindell@themonitor.com, (956) 683-4428 or on Twitter at @efindell.

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