Hondo recall replete with irregularities, errors

by Juan O. Sanchez

For the citizens of Medina County, the City of Hondo recall election of May 9, 2009 has raised numerous concerns regarding its validity.

Through multiple sources, La Voz was able to obtain copies of various documents pertaining to the election. The documents include the 80 signed recall petition sheets, a letter from the Hondo city secretary to the Robert Heyen (who organized the recall), a copy of the election ballot, and a copy of the lawsuit filed against the City of Hondo stating that the election violated the 1965 Voting Rights Act, and should be considered invalid.

Upon inspection of the recall petitions, it was clear that Yolanda Benitez, Hondo city secretary, should have never certified them.

Although Benitez initially sent a letter to Heyen on January 26, 2009 stating that the recall petition was “insufficient” due to lack of an affidavit by one of the signers of the petition stating, “The statements made herein are true,” the corrective measures taken by Heyen still made the petitions deficient. Despite this, Benitez certified the petitions.

What exactly are the deficiencies in the petitions?

As noted, the letter to Heyen from Benitez stated that the petition was lacking an affidavit by one of the signers and that the statement at the top of the petition indicating the reasons for the recall was accurate and valid.

The letter also stated that Benitez had been in contact with Paul Miles from the office of the Texas Secretary of State, who apparently indicated that the petition required an amendment to comply with the recall requirements of the city charter.

Additionally, the letter stated that Miles had indicated that an amendment was not required if “the petition papers which already contain the circulators name and signature at the top and in the affidavit…” This, however, was incorrect.

Just what conversation transpired between Benitez and Miles is unknown; it also unknown how detailed the conversation was, and if Miles understood – based on Benitez’s explanation – just what was being asked. What is known, however, is that there were in effect two affidavits required for each petition sheet (there were a total of 80 petition sheets containing signatures).

The first affidavit was located at the bottom of the petition and was, in effect, the affidavit for the circulator of the petition. That is, the person who was gathering the signatures and who, through the affidavit, was stating that they witnessed the signing of the petition by supporters, and that the signatures were those of the person indicated in the petition.

The second affidavit required, and this is the location of the deficiency, was the affidavit of Statement of Fact. This affidavit was required to be signed by one of the individuals signing the petition verifying the statement regarding the reasons behind the recall. The statement itself was at the top of each petition sheet, but there was no affidavit attached.

As previously stated, the letter sent by Benitez to Heyen was dated Jan. 26, and included a statement to the fact that the deadline for submitting the amended petition, which included the affidavit of Statement of Fact, was Feb. 5. This gave Heyen and the recall supporters 10 working days in which to amend the 80 petition sheets in order to meet the requirements of the city charter.

Of the 80 petitions, only 65 were amended to include what was, in effect, an invalid affidavit of Statement of Fact. Petition #4 is an example of the invalid affidavit that was added to the petition. On the bottom front of the petition is the affidavit for the circulator of the petition. In an attempt to amend the petition, the same affidavit is copied on the backside of the petition and notarized by Heyen.

However, just above the copied affidavit for the circulator, there is a single line stating: “The statements made therein are true,” but there is no signature. Instead, what was done was to write in “#3 of said petition,” on the line where the name of the signer should have been.

In this case, the signer on line #3 on the front side of the petition was Tracy Carlson, who signed the petition on January 3, yet Heyen signed as notary public on Jan. 29.

Furthermore, the fact that no signature appears on the line for the statement of fact on the back of the petition, means that the signer on line #3, Tracy Carlson, was not present at the time the affidavit was notarized. Petition #5 is another example of an invalid affidavit added to the document. Just as with Petition #4, the same wording concerning the affidavit for the circulator is copied on the back, with Heyen notarizing it on Jan. 29.

In the line corresponding to the signature of the affidavit for the Statement of Fact is entered “# 4 of said petition.” Number 4, in this case, is Claire W. Sweet who signed the petition on Jan. 8. Additionally, she signs the Statement of Fact on the front and dates it on Jan. 27, two days prior to the date of the signed notary by Heyen on the back of the petition.
In this case, we have three dates:

• The date corresponding to the signing of the petition by Sweet (Jan. 8 )
• The date corresponding to the date when Sweet signed the Statement of Fact on the front side of the petition (Jan. 27)
• The date when Heyen notarized the backside of the petition on Jan. 29

Once again, what is evident is that Heyen notarized the affidavit without the signer present. This type of discrepancy regarding the signature dates is evident on the 65 petitions that were amended. In some instances, the difference between the signature dates on the front and back is up to 30 days.

Another deficiency in the petitions, specific to the 85 that were amended, is that in the attempt to quickly amend the petitions, the same affidavit for the circulator was used as the affidavit for the signer of the petition verifying the statement in the petition regarding the recall as being true.

As previously noted, the exact same affidavit located on the front of the petition was copied on the back and made to appear as though this was the affidavit for the statement. However, the affidavit for the signer verifying the statement should have included language specific to verification of the statement.

Instead, it contains the same language specific to the circulator. The affidavit on the back, therefore, is completely incorrect for the intended purpose – verification of the statement regarding the recall (see Petitions #4 & #5). The noted discrepancies should have invalidated the petitions, why the city secretary certified the petitions is unknown.

However, this is not the end of the deficiencies in the petitions. Recall that according to the letter of Benitez to Heyen, the city secretary states, “Mr. Miles also states that the petition papers which already contain the circulators name and signature at the top and in the affidavit do not need to be amended.”

As previously stated, this is incorrect.

The petitions required two affidavits; one for the circulator, and one for the signer. What Benitez indicates has been stated by Miles is that if the person signing as circulator has also signed the petition, that such petitions will not need to be amended.

However, having signed as circulator and having signed the petition does not mean that the same person also signed the affidavit of statement of fact, because no affidavit of statement is included. Two affidavits are required, just because the same person signed as circulator and signed the petition does not automatically mean that the second affidavit, the affidavit of Statement of Fact, has been signed.

Each petition sheet required two affidavits, but there is no second affidavit for the fifteen petitions in which the same person signs as circulator and signs the petition. Such petitions are invalid because they do not have the required second affidavit.

What does all this mean? It means that all the petitions are invalid, 65 because;

(1) They contain different dates with respect to singing the petition and the date when the affidavit is notarized on the back,
(2) Some contain different dates besides the signature on the statement of fact on the front, and the date when Heyen on the back of the petition signed the affidavit,
(3) The affidavit for verification of the statement on the back of the petition is the same affidavit for the circulator on the front, in other words, it is the wrong affidavit,
(4) 15 of the petitions contain no second affidavit, thus they are also invalid.

If the city secretary was intelligent enough to note the deficiencies in the petitions the first time, the question is why she did not note the deficiencies the second time after the petitions had been amended?

The public is left with only two possibilities: Either the city secretary is incapable of performing their duty, or she has been coerced into accepting the petitions, even though they were invalid.

It is apparent that the city secretary had reviewed the city charter requirements regarding the petitions; this is why she did not accept them the first time. Sections 6.03 and 6.07 of the city charter are clear regarding the requirements of affidavits, yet the city secretary accepted the petitions even though they did not meet the specifications.

With respect to the ballot used in the election, this too, was invalid because it did not meet the specifications under the city charter. Sections 6.07 – 6.12 specify the manner in which the ballot is to be formatted. Section 6.09 specifically states:

“Ballots used in recall elections shall read as follows: ‘SHALL (name of person or persons) BE REMOVED FORM THE CITY COUNCIL BY RECALL?’
Below such question there shall be printed the following as to each person named:
‘FOR REMOVAL OF (name of person)
‘AGAINST REMOVAL OF (name of person)”

Note should be taken of the term “shall,” this term is indicative of how it must be done, there are no exceptions. Additionally, the format for the ballot is not one in which all the individuals being recalled are voted on as a block. The candidates should have been separated, and each one should have been voted on individually. Therefore, the ballot format used was incorrect.

However, the ballot format was not the only problem. The Spanish words used concerning the recall made voting on the initiative confusing. Whereas in English the wording for or against removal was clear, in Spanish the word revocar is the equivalent of revoke and can be interpreted as revoking the petition, not the candidate. (This is also covered in the lawsuit). This misunderstanding actually led some Spanish-language voters to vote in favor of the recall, instead of against it.

With only a 45-vote difference in favor of the recall, the use of correct wording could easily have resulted in an opposite outcome with the shifting of 23 votes. Based on the results of the election, with Clyde Haak and Michael Sanchez, individuals who opposed the recall winning, it is of interest that the individuals targeted for the recall lost.

This may be explained due to the confusion associated with the ballot. Had the ballot been formatted as specified by the city charter, and worded in such a fashion that it would not have created confusion; the election results could well have been different.

The last item to be covered is the lawsuit initiated in the U.S. District Court for the Western District of Texas in San Antonio, on May 18. The plaintiffs in the lawsuit are Odilia Garcia, Ricardo Benavides, and Raquel G. Morin. The lawsuit provides numbered paragraphs that detail the reasons for the lawsuit.

The lawsuit cites violation of Section 5 of the 1965 Voting Rights Act; changes to the election procedures that were inconsistent with the city charter, and inaccurate Spanish translation on the election ballot that resulted in confusion. It also states that the city of Hondo did not pre-clear any of the changes with the proper judicial authorities; it asks that the city not conduct elections in the un-pre-cleared manner in which it did, and asks that the election of May 9, 2009 be nullified.

The lawsuit cites Section 6 of the city charter and notes the violations by the city regarding the improper format of the election ballot, and the lack of the affidavit of statement regarding the recall petition that must be signed by one of the signers of the petition.

In Paragraph 15, the lawsuit details the deficiencies of the petition and the fact that the city secretary certified the petition even though it failed to comply with the city charter requirements.

The lawsuit also detailed the improper format of the election ballot in that it did not comply with city charter guidelines stating that the recall of council members should be conducted individually, not collectively, as was done. According to the lawsuit, because an improper ballot format was used without proper judicial clearance, “Such election is void as a matter of law.”

Another issue covered by the lawsuit was that a school district election was held at the same time as the city election, without separating the voter lists specific to the city and school district elections. This, it stated, may have allowed some residents within the school district who did not reside within the city limits of Hondo to actually vote in the city election thereby giving the supporters of the recall the win.

Another item of interest in the lawsuit is the assertion that the date set for elections to fill the vacancies created by the recall, do not conform to state law regarding when municipal elections can be held. According to the lawsuit, “the Texas election code clearly requires that the uniform election dates set out in state statute that may be used for municipal elections. The next uniform election date would be the first of Tuesday after the first Monday in November, 2009.” (Section 41.001, Texas Election Code) The lawsuit further states that the city’s date of an election in July has not been submitted for judicial approval as required by the Voting Rights Act of 1965.

Citing the many violations committed by the city, the lawsuit states: “With full knowledge of and in spite of the total absence of compliance with Section 5 of the Voting Rights Act, the Defendant has conducted its 2009 recall election and begun the process for filling the vacancies resulting from that illegal action.”

The lawsuit states that the city, in conducting the election violated the Voting Rights Act and that because of the lack of judicial clearance in using a modified election process that the election “is void and should be set aside.”

It also asks for an injunction barring the city from using election procedures that are not judicially approved “as required by Section 5 of the Voting Rights Act.” Another request of the lawsuit is that “a three-judge court be convened to hear the case.”

On the final page of the lawsuit it asks that the court declare the actions of the city regarding the elections as a violation of the Voting Rights Act;

• That the city reinstate the council members that were “illegally removed;”
• That it not allow the city to conduct an election to fill the positions held by the members recalled;
• That a new recall be initiated that follows the procedures established by the city charter.

It further asks that the court order the city to comply with Section 5 of the Voting Rights Act; that it pay attorney’s fees; that the court maintain jurisdiction over the matter until the city and those involved comply with the mandates of the court, and allow for whatever else is deemed as just and proper by the court.

It is blatantly clear to all that the election was completely invalid, as well as a failed attempt by those accustomed to wielding control to regain political dominance of the city of Hondo. At this point, it is up to the court system to decide based on the facts, and not the “facts” for a select few.