Wednesday, November 28, 2012


"§ 213.057. CANVASS FOLLOWING RECOUNT.  As soon as
practicable after completion of a recount that changes the number
of votes received for a particular candidate
or for or against a
measure, the final canvassing authority shall conduct a canvass for
the office or measure involved using the recount supervisor's
report, instead of the original county election returns, for each
county in which a recount was conducted.  An original final canvass
for the office or measure is void,
and the new final canvass is the
official final canvass for the election on that office or measure. 
If no change occurs in the recount in the number of votes received
for a candidate or for or against a measure, the official result of
the election is determined from the original final canvass."

The Election Code

Here is what is happening.  The original final canvass is may not be void until the new canvass occurs.  The new canvass has not occurred.  The language is actually not clear if the old canvass is void before or after the new canvass is conducted.  The law uses the word "Shall" in terms of conducting a new canvass so long as a change in the number of votes occurs. Under Texas law the word "shall" is not always mandatory.  It's called judicial activism - they did not like the result in a case so they created a doctrine which makes "shall" sometimes discretionary.  "Shall" imposes a duty.

If Healthsmart is reinstated their lawyers will argue that until such time as BISD conducts a new canvass Chirinos has no right to vote.  The problem is, the old one is not void until a new one is conducted.  There is plenty of room for long term litigation on the issue.  The question is does the use of the word "shall" make the new canvass mandory or discretionary?   Smart money says, do not gamble - simply redo the canvass and swear in Chirinos a second time.  But this is BISD, where smart money has no place at the table.

While writing this someone posted a comment stating the AG says no new canvass is required so long as the recount did not change the winner.  I guess the AG is reading a different statute from me.  The above statute in plain and simple language states "changes the number
of votes received for a particular candidate."
I do not see a qualification based on winner.

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