Today, the Dallas Court of Appeals ruled against Kim Brimer in his attempt to keep Wendy Davis off the fall ballot.
The court did not reach the actual question of Davis’s eligibility under the statute, instead concluding that the challenge became moot on August 22, 2008 — shortly after the Texas Supreme Court denied Brimer’s request for emergency relief.
The Texas Election Code provides “[i]f a candidate dies or is declared ineligible after the 74th day before election day, the candidate’s name shall be placed on the ballot.” Tex. Elec. Code Ann. § 145.039 (Vernon Supp. 2008). If the name of an ineligible candidate appears on the ballot, the votes cast for the candidate shall be counted and entered on the official election returns. Tex. Elec. Code Ann. § 145.005(a) (Vernon 2003). The general election is set for November 4, 2008. See Tex. Elec. Code Ann. § 41.002 (Vernon 2003). The 74th day before the general election was August 22, 2008. Accordingly, even if we declare Davis ineligible, her name will remain on the ballot and any votes cast for her will be counted. See Tex. Elec. Code Ann. § 145.005(a) (Vernon 2003). No order that we might enter would be effective to change this result….
Brimer’s only legally recognized interest in pursuing this appeal is to avoid being opposed by an ineligible candidate. Even if Davis is ineligible to hold office – an issue we do not reach in this appeal – her name will be included on the November 4, 2008 general election ballot in opposition to Brimer. We cannot, at this point, change that outcome and, therefore, this appeal is moot.
Brimer has 45 days, of course, to file his petition for review in the Texas Supreme Court, if he chooses. Update: Brimer’s campaign has now said that it is “leaving the question of eligibility to be determined by action taken after the election.”