Can A Candidate With A Felony Conviction Stay On The Ballot In Houston?
When Cynthia Bailey made the runoff for the Houston City Council District B race, no one was more surprised than she was.
“I went to bed in third,” Bailey said. “But when I woke up, I was in second. I said, ‘Oh, Lord.’ I got so excited. And I knew then that, hey, these people really care, and they really know the work that I do, that it speaks for itself.”
Bailey founded Impacting Houston Inc., a nonprofit for local kids, and starting in 2017 she formed a team to clean up District B, picking up debris from illegal dumping. More than a decade ago, Bailey was convicted of theft. Now she’s running to represent District B, which includes majority African American neighborhoods like Kashmere Gardens and Acres Homes.
“I just ask God, ‘Are you sure this is for me? You sure this is for me?’ And I keep asking. And the next thing I know,” Bailey said, “I was in the runoff.”
But it turns out, Bailey won’t be on the runoff ballot in December, because the District B race was removed after the third place candidate sued the city and county, contesting the election results on the grounds that Bailey’s felony conviction disqualifies her under state law. It’s raising questions about how Texas law restores the rights of formerly incarcerated people, and how Texas fits in with a national trend to destigmatize involvement in the criminal justice system.
“It makes me feel bad because you’re telling me ‘you can do good, as long as you don’t get on my level.’ No, we all should be at a certain level in life after we pay our debt to society. We did the time. We did everything you asked of me. So now I can never come up to the top step. I always have to be in the middle of the step,” Bailey said. “And I don’t think that’s right.”
She’s hoping her campaign will send a message to other people in her shoes: “Don’t be afraid. If you did your time, and you paid your debt to society, step out on faith, and God will guide you through the steps you need to take.”
Criminal justice reform advocates have supported Bailey’s right to run, like the Texas Organizing Project’s communications director Mary Moreno.
“If you can vote, you can run. Your rights have been restored.” Moreno said.
Many District B residents are upset the race won’t be on the December ballot, and Moreno said the question of Bailey’s eligibility means a lot to people in the district — and across the state of Texas.
“If you have money, a lot of times you can get a lesser penalty, a lesser conviction. But if you’re poor, it’s easier to get a felony conviction. And so we can’t keep punishing people for that,” Moreno said. “If we’re saying that you’ve paid your debt to society, then we should allow people to live full lives, and that includes running for office.”
At a Friday afternoon rally outside City Hall, District B residents demanded the right to vote in the runoff election at the same time as everyone else in Houston, and for the candidates they chose on November 5. It was an unusual political event where two runoff opponents stood side by side at a rally together.
“It makes me feel good,” Angela Johnson, a District B resident, said, “because I see two African American women up there that are not fighting and tearing each other down, but are holding hands and saying ‘I got you, my sister.’”
Johnson said she went to the rally because she thinks Cynthia Bailey and others with felony convictions deserve the right to run.
“I believe that at the end of the hour if she can do the job she deserves to have that position,” Johnson said. “Second chances are what we’re about.”
Tarsha Jackson, the frontrunner in the District B race, said she’s worried the decision to remove the race from the December ballot will disenfranchise voters who won’t make it to the polls when a special election is called sometime next year.
“It’s going to be difficult to get people back out,” Jackson said. “So their voice won’t be heard like it would be heard on the 14th.”
A lifelong criminal justice activist, Jackson is unequivocally supporting her opponent’s right to run.
“It just says a lot about the moment that we’re in right now in criminal justice reform,” Jackson said. “That we really need to start looking broadly not just at bail reform but at true second chances – whether it’s a job, housing, that our district, which is majority black and brown. I mean they’re suffering from being disproportionately impacted by the criminal justice system, and so we need to pay attention to it all.”
Jackson also said there was no need to remove the race.
“I think the city attorney had the power to say no, because the city contracts with the county. So the city attorney could have said ‘Hey, no, we’re going to run our race, we’ll deal with this later,'” Jackson said. “I’m really disappointed in the city attorney for allowing the county to pull District B off the ballot.”
Houston City Attorney Ron Lewis issued a statement on Friday, saying that both lawsuits are governed by state law, not city ordinances. “The legal process should be allowed to proceed. Since the City is a party to these cases, I will have no further comment,” he said.
Jerry Davis, the current District B councilmember, is term-limited and can’t run for his seat again. He showed up at the rally to support both candidates and to speak about the frustrated phone calls he’s getting from constituents.
“They’re very pissed that they won’t be included on the December 14 ballot,” Davis said. “If it was an issue, it should have been taken care of on the front side, not on the back side now causing all of the issues that we’re facing today.”
So, Can She Run?
Here’s what the state election code says: “A finally convicted felon is not eligible to be a candidate for public elected office in this state unless they have been pardoned or otherwise released from the resulting disabilities.”
Earlier this year, during the Texas legislative session, State senator Pat Fallon (R-Prosper) pointed out that virtually no one knows for sure what the end of that sentence means.
“The ‘resulting disabilities’ line is unclear and without legal precedent, causing confusion as to who is exactly eligible to run for public office,” Fallon said.
Fallon introduced legislation that could have settled the question about whether people with felony convictions are eligible.
“They have broken their pact with society in a very egregious manner and should not have certain rights restored,” Fallon said. “SB 466 strikes this ambiguous part of the election code to make it clear that only convicted felons who have been pardoned are eligible to run for office.”
He pushed for the measure because of a situation very similar to what’s happening in Houston. Last year, Lewis Conway Jr., a candidate with a felony conviction on his record, ran for Austin City Council. Conway didn’t make the runoff, so Austin didn’t have to figure out what would have happened if he’d won — but it did spark a debate.
Conway testified against Fallon’s bill.
“No matter what we do,” Conway said, “in his eyes, we are forever second class citizens. Slaves, if you will. And these lowly second class citizens that have been punished and served their time – how dare they seek public office?”
Fallon’s bill failed. Now the unanswered question is resurfacing, this time in a courtroom in Houston.
The third place candidate, Renee Jefferson Smith, immediately filed a lawsuit after the November 5 election. A judge denied her request to stop the city from certifying the results. Jefferson Smith appealed that ruling, and in a second lawsuit she’s contesting the results. Jefferson Smith also argues that Bailey perjured herself by signing a sworn statement saying she was eligible when she filed to run for office.
Nicole Bates, Jefferson Smith’s attorney, said the city could have avoided a special election.
“They’ve been unresponsive, and I’ll just leave it at that,” Bates said. “But there are things in the code that require the city to do something and that just hasn’t been done.”
The Texas Secretary of State’s office and Houston’s City Attorney declined to comment on whether Bailey is eligible to run, but Bailey has argued she is eligible because she regained the right to run for public office at the same time that she regained her right to vote.
At least, that’s how it works in 23 other states.
A National Trend
“Most frequently the pattern is that the right to vote and the right to hold office travel together,” said Margaret Love, a former Pardon Attorney in the U.S. Justice Department who runs the Restoration of Rights Project.
According to Love’s analysis:
- 23 states and Washington DC link restoration of vote and office eligibility, restoring both after release from prison or completion of sentence.
- 14 states make restoration depend on receiving pardon or official rights restoration. In three of those states, restoration of office goes with restoration of vote.
- Nine states either don’t disqualify from office at all (LA, ME, MA, VT), or disqualify only for conviction of bribery or corruption in office (AR, CA, MI, NJ, NY).
- Three states authorize the court to restore (TN) or restore after a term of years (OK after 15 years, UT after 10 years). Only in Delaware is office eligibility lost permanently even after pardon.
“In Texas it seems like this is an effort that’s sort of working itself out within the major cities, and so that’s an interesting development,” said Nicole Porter, advocacy director with the national organization the Sentencing Project. “But here is a history of candidates with prior conviction history seeking office and being elected to office in other cities around the country.”
Love recalled a client with a felony conviction, Sala Udin, who sat on Pittsburgh City Council for 12 years, while Porter pointed to politician Marion Berry in Washington DC as another example.
Porter said Houston’s City Council race is part of a bigger trend.
“Candidates are publicly disclosing their criminal conviction history. I think that’s part of an ongoing effort to destigmatize prior justice involvement that’s a part of a movement to challenge mass incarceration,” Porter said.
It’s unclear when a special election will be scheduled, depending on the outcome of the election contest lawsuit. According to Nicole Bates, Jefferson Smith’s attorney, the state would remove Bailey from office if she were elected and the city seated her.
At a community meeting over the weekend, Oliver Brown, Cynthia Bailey’s attorney, said his goal is to clarify that Bailey is on the ballot legally and can be seated if she wins. He wasn’t surprised that the Texas Secretary of State’s office and the Houston City Attorney’s office have avoided explicitly weighing in on whether Bailey is eligible.
“I think because it’s such a political hot potato people are trying to stay out of it,” Brown said.
At the City Hall rally, Jackson acknowledged there wasn’t much hope of being reinstated on the December election since paper ballots had already been mailed, but she didn’t sound discouraged, either.
“You have to keep putting pressure on your leadership,” Jackson said. “We have to stay out here and keep yelling from the top of our lungs and let them know that we’re not just going to take this standing down. We demand that our district, a district that has been historically left behind, get an opportunity to go to the polls.”
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