SAN ANTONIO – It's been two months since the state's congressional primary, and the 28th Congressional District still doesn't have an official Democratic nominee.
The paper ballots have been counted, recounted and then recounted again in the heavily Democratic district that runs through 11 counties from the San Antonio area to the Mexican border. The latest tally puts challenger Henry Cuellar (search) ahead of incumbent Rep. Ciro (search) Rodriguez by 58 votes out of nearly 50,000 cast.
After a brief trial Tuesday, Cuellar prevailed in a voter fraud lawsuit filed by Rodriguez stemming from the March 9 primary. Attorneys for Rodriguez had asked for more time to count ballots but state Judge Joseph Hart ruled there had been sufficient time to count the ballots in two counties.
Rodriguez spokesman John Puder said Rodriguez will file an appeal with the state's 4th Court of Appeals in San Antonio as early as Wednesday.
According to the Texas Election Code (search), any ruling by the appeals court is not reviewable by the state Supreme Court. But it could be appealed to federal court if constitutional or voting rights issues are raised.
Before the trial, Cuellar urged his opponent — a one-time ally in the Texas House of Representatives — to just end the fight.
"When do we stop?" he asked with some exasperation. "Do we keep doing this just because we have an option to file an appeal? Or do we stop and think, 'Hey, look, I've got to put the best interests of the community in mind."'
The Rodriguez camp perked up Friday after a second recount of ballots in Webb County, where Cuellar lives. Cuellar had an overall lead of 203 votes going in, but that margin shrunk by 145 votes by day's end.
Last month, the Texas Democratic Party certified Cuellar as the Democratic nominee pending the outcome of the Rodriguez legal challenge. The eventual winner on the Democratic side will face Republican Jim Hopson in the November general election.
Rodriguez filed his lawsuit shortly after the first recount in Webb County, during which Cuellar picked up 170 votes. Combined with 177 additional votes discovered in the recount in neighboring Zapata County, the challenger went from trailing Rodriguez by 150 votes to leading by 203 votes.
John Puder, campaign consultant for Rodriguez, said a team of investigators dispatched to Webb and Zapata counties turned up case after case of ineligible voters casting ballots. A documents expert also has been hired by Rodriguez to look for signs of tampering.
The Cuellar campaign dismissed the attempts as simply a fishing expedition.
"They haven't caught anything yet, so they keep casting," said Colin Strother, Cuellar's campaign manager. "It could be vote fraud, or it could be ballot tampering, or the eclipse of the moon or whatever. It's hard to admit they got beat."