March 27, 2008

Primary Battle Could End Up in Court
after Recount Trims Challenger's Lead

By Mike Hailey
Capitol Inside Editor

State Rep. Nathan Macias of Bulverde picked up 21 votes but failed to overtake Doug Miller in a recount of a Republican primary race that could end up in court with the challenger clinging to a 17-vote lead that won't be official until the latest tally is canvassed.

The gap between Miller and Macias based on the unofficial recount is closer than the 20-vote victory that Democratic incumbent Alec Rhodes claimed in the general election in 1998 in a race that Republican Rick Green eventually won by 36 votes when a recount overturned the initial results.

The current count in the Miller-Macias bout is closer than the official results of State Rep. Hubert Vo's 33-vote victory over Republican Talmadge Heflin in 2004 in an election that the incumbent contested after a recount whittled 19 votes off the challenger's lead. But Vo's victory that year came in a general election that Heflin contested in a challenge that the House considered after it convened in regular session two months after the ballots were cast.

In the event that Miller is still winning after the recount is canvassed in the next day or two, Macias would have to go to court to challenge the outcome of a primary election if he decides to contest it. If that happens, it would be the first time in 16 years that a court was forced to determine the winner of a primary election in a Texas House race have been contested at the courthouse.

But the GOP primary battle for an Austin-area House seat that current State Comptroller Susan Combs won in 1992 was even closer than the race between Miller and Macias is at this point in time in the wake of the recount. Combs lost to Bill Welch by a razor-thin margin in the primary election that year before a recount reversed the outcome and gave her a seven-vote victory. But Combs led Welch by only one vote after he contested the election in a Travis County state district court.

Miller, a former New Braunfels mayor, led Macias by 38 votes after the initial tally that wasn't complete until the wee hours of the morning on the day after the primary election was held earlier this month. But Miller lost 12 votes when the votes were recounted in Comal, Bandera and Kendall counties on Monday and Tuesday - and the perilous lead that he held was trimmed by another nine votes Wednesday after the recount in Gillespie County.

Macias said he would be exploring his options before deciding what his next move might be in the event that he doesn't come out ahead once the results are official.

The ultimate decision on a costly court challenge in the HD 73 race could hinge on whether House Speaker Tom Craddick supports such a move. Macias has been a solid Craddick supporter in the ongoing House leadership battle while Miller has been viewed as a possible foe in light of support that he's had from individuals and groups like the Texas Parent PAC. Miller, received more than $160,000 in cash and in-kind contributions from the Texas Parent PAC for the primary fight with Macias. While the Texas Parent PAC says that it has not taken sides in the speaker's race, the group has backed more House candidates who oppose Craddick than those who support him. The group says that it's supporting Miller because he's been a strong advocate for good public schools while Macias supports school vouchers and home schooling.

But there's been increasing speculation that Miller might be in Craddick's camp in his bid for a fourth term as House leader by the time the next election for speaker is held when the regular session convenes in January. The speaker could run the risk of alienating Miller if he took sides in an election contest.

Recounts are expensive and court challenges cost more. Former House member Arlene Wohlgemuth, for example, was forced to spend more on a recount that she survived in 1994 than the entire campaign had cost up to that point.

It's been 10 years since a recount reversed the outcome of an election in a Texas House race. That happened when a recount produced a 56-vote swing that vaulted Green to victory after losing to Rhodes in the first count. Green was re-elected in 2000 before Democrat Patrick Rose ousted him in a close vote two years later.

Vo led Heflin by 52 votes before his lead shrunk in the recount. The special master that Craddick had appointed to oversee Heflin's election contest eventually determined that Vo had won the election by at least 16 votes.