Heflin challenge could reverberate statewide

By Amy Smith
©2005 The Austin Chronicle
January 28, 2005

By the time the Lunar New Year rolls in early next month, the state's Asian-American community may well have a whole new perspective on Texas politics.

Perhaps it's a long shot, but the Year of the Rooster could bring about a dramatic shift in the voting patterns of Asian Americans, who typically vote conservatively but not necessarily as a one-party bloc. Now, thanks to the Republican Party's obstreperous efforts to oust the first Vietnamese-American ever elected to the Texas Legislature, the Asian vote could become the Democrats' secret weapon.

The GOP's problem with Houston Rep. Hubert Vo is not his ethnic heritage but his party. Vo is a Democrat who narrowly defeated Talmadge Heflin, a powerful 22-year Republican incumbent, and last session's chair of the mighty House Appropriations Committee.

With Gov. Rick Perry's apparent blessing and a $10,000 contribution, Heflin has undertaken an aggressive election challenge that goes to a hearing today (Thursday), barring a last-minute retreat or some other kind of maneuver. State Rep. Will Hartnett, R-Dallas, the designated House "master of discovery," will consider Heflin's allegations of illegal balloting in the District 149 race and make a recommendation to a special committee of five Republicans and four Democrats appointed by Speaker Tom Craddick. The full House will then decide whether to uphold Vo's 33-vote victory, overturn it and seat Heflin, or ask the governor to order a new election in this southwest Houston district.

Amy Wong Mok, an Austin businesswoman and community activist, says Asians here and abroad are closely following this case. The outcome, she believes, could have long-lasting effects on the overall political landscape of Texas – home to the fourth-largest Asian population in the country. "If they take away Hubert Vo," said Mok, "Asian-Americans are going to be very angry for the next two generations. It would be a slap in the face." Mok, a former candidate for Austin City Council who leans Democratic, says the state GOP will have a hard time justifying itself to those Asians who traditionally vote Republican. "Many different Asian organizations are united behind Hubert Vo," she said. "As we see it, this is about arrogance ... it's about not accepting defeat gracefully."

Heflin's fight to regain his seat comes just months after his unsuccessful attempt to claim his former housekeeper's 20-month-old child, a legal spectacle that likely contributed to his political collapse. This case, too, could extend a cloud of bad fortune over other political careers. "I have no numbers to back this up, but the 'Rs' have already been hurt in Texas by this effort to seat Heflin," said Kelly Fero, chief strategist for Take Back Texas, a sister organization of the state Democratic Party. Fero points out that Rep. Martha Wong, R-Houston, the first Asian-American woman elected to the Texas Legislature, is herself vulnerable and could lose her next re-election bid – "with help from the Asian community." Rep. Joe Nixon, another Houston Republican, could also draw a challenger, already identified as attorney Robert Pham, a Vietnamese-American with a compelling success story like Vo's, Fero said.

In truth, some House Republicans have privately questioned the wisdom of picking a sensitive partisan fight at a time when the Legislature is under the gun to overhaul the school finance system and fix Child Protective Services. That Perry kicked in $10,000 toward Heflin's war chest after the election leaves the more cynical Capitol watchers to offer up wild suggestions that he's egging this case forward, however weak it is, to circumvent progress on school finance. Under this scenario, the Lege becomes hopelessly deadlocked, the case is kicked over to the state Supreme Court, and the governor avoids the slings and arrows that would inevitably follow a reform package fashioned under his watch.

If that's true, Speaker Craddick must not have gotten the memo. Heflin's committee chair wasn't even cold before Craddick replaced him on the powerful Appropriations Committee, naming Rep. Jim Pitts, R-Waxahachie, to preside over the state's purse strings. On the other hand, Heflin has Andy Taylor, the indefatigable Republican go-to lawyer, fighting on his behalf. In a pleading filed Jan. 21, Taylor asserted that if not for the "illegal votes" counted in Vo's favor, Heflin would have won the election fair and square – by five votes. "Thus," Taylor wrote, "a dark and troubling cloud looms over the purported outcome of this race because of the enormous number of illegal ballots which were cast and counted."

Taylor supports his argument with a mathematical calculation: Of the 250 votes cast illegally in this race, 118 of these illegal vote casters were deposed. Under oath, 78 people said they voted for Vo, while 40 said they voted for Heflin. By subtracting the number of illegal votes from Vo's margin of victory, Taylor was able to arrive at Heflin's five-vote victory.

"Junk science," Vo's attorney declared in a response filed late Monday. In a 39-page brief, Houston lawyer Larry Veselka offered equally descriptive prose in requesting that the committee reject Heflin's contest – "because accepting this challenge under these flawed circumstances would cast a pall over all urban elections, dampening future election participation and inviting more contests whenever someone can hurl an unsubstantiated charge of 'fraud.'"

No one denies that voting errors were made, but the Vo team argues these were honest mistakes, the majority of them the result of untrained election officials faced with the challenges of a large turnout, the complexity of the Election Code itself, and new procedures for provisional balloting. Moreover, Heflin bears the burden of providing clear and convincing evidence that proves the illegal votes "materially affected" the outcome of the race. By Vo's own measure, the final tally actually raised his margin by three points, giving him a 36-vote victory over Heflin.