A Republican candidate vying to replace retiring State Representative Dwayne Bohac (R-Houston) will remain on the March 3 primary ballot although questions remain about his eligibility under the Texas Constitution.
Josh Flynn, son of State Representative Dan Flynn (R-Canton), filed to run as a Republican for Texas House District 138 last November. At the time of his initial filing, Flynn was serving as an elected trustee for the Harris County Department of Education (HCDE) having been elected to a six-year term in 2018.
Wallenstein informed the HCDE Board that under the Texas Constitution a person holding “lucrative” office in the state is not eligible to run for the Legislature.
While HCDE Board members receive a mere $6 per meeting, a 1992 Texas Supreme Court ruling holds that compensation of any amount, “no matter how small,” must be considered “lucrative.”
Initially, Flynn told the Houston Chronicle, “If I were to win the election in November of 2020, then I will resign my position with the HCDE.”
But on December 9, the last day of the filing period for the 2020 primaries, Flynn withdrew his filing for HD 138 with the Republican Party. He then submitted a written resignation from HCDE to an administrative aide, and later returned to Harris County Republican Party offices to re-file for the Texas House primary before the 6 p.m. deadline.
On December 17, 2019, Harris County Republican Party Chair Paul Simpson announced that after the party’s legal counsel had conferred with the office of the Texas Secretary of State and reviewed Texas Election Code, Simpson had determined that Flynn was “not eligible” to run for the state Legislature, on the grounds that Flynn’s resignation had not been properly delivered and accepted by HCDE.
Two days later, Flynn filed a lawsuit against the Harris County Republican Party and successfully sought a temporary restraining order.
Last week, attorneys for the County GOP and Flynn agreed to a mediation settlement separating two issues named in Flynn’s lawsuit. While the parties agreed to keep Flynn’s name on the ballot, the issue of eligibility was separated and abated until after the March 3 Republican primary election.
At the conclusion of the mediation last Friday, Simpson released a statement announcing that “Flynn had agreed that [the] ruling of ineligibility still stands through the March primary election. However, as Texas law also requires, we agreed that Mr. Flynn’s name will remain on the primary ballot.”
Harris County GOP outside legal counsel Trey Trainor added, “We’ve left Mr. Flynn on the ballot because the law requires us to do so, but unless a judge rules otherwise, he’s still ineligible.”
Flynn followed with a video statement calling the mediation agreement a “victory for his campaign.” He also accuses Simpson of changing tactics, saying that while Simpson initially said the HCDE resignation was submitted to the incorrect party, Simpson then said the resignation needed to be submitted eight days prior to filing for the Texas Legislature.
Flynn told The Texan that Simpson had not made Flynn’s attorney aware of the “eight day” objection until the mediation meeting on January 10.
In his video statement, Flynn says that requiring him to resign eight days before filing places a unique requirement on his candidacy and thus violates his equal protection rights under the First Amendment.
Harris County GOP Communications Director Genevieve Carter told The Texan that although Flynn is ineligible, “Texas law requires that his name stays on the ballot. The Party has never tried to remove his name and has always agreed to leave his name on the ballot.”
Additionally, in an email to The Texan, the Harris County Republican Party wrote that Texas Election Code stipulates a resignation is effective on the earlier of, “the date the resignation is accepted by the appropriate authority or on the eighth day after the date of its receipt by the authority.”
The county party asserts that the HCDE Board did not accept Flynn’s resignation until the public meeting on December 18. Therefore, Flynn’s resignation was not effective until the eighth day after it was received.
“As Harris County Republican Party Chair, I must protect the integrity of the ballot and ensure all candidates are eligible,” said Simpson.
Flynn, whose attorney is former Harris County GOP Chair Jared Woodfill, firmly rejects the party’s argument.
“You can sue anybody for anything in this country and they’re trying to sue me off the ballot. They are trying to take a voter’s choice off the ballot.”
Kamau-Imani this week publicly called for Flynn to withdraw from the race, saying that while Flynn is “a good man and an asset to the community… reckless mistakes in filing for this race have thrown it into chaos.”
“The Democrats wait in the wings to sue him if he wins this primary to get him off the ballot for the general. This would effectively flip the seat without a single voter going to the ballot box.”
In 2018, Rep. Bohac narrowly won re-election by 47 votes. Analysis from Rice University fellow Mark Jones indicates the seat now “leans Democrat.”
Since the issue of Flynn’s eligibility has been abated until after the primary, it is not entirely clear as to how primary results will be managed.
If an ineligible candidate named on the ballot wins more than 50 percent of the vote on March 3, County Republican precinct chairs then choose the Republican nominee. If an ineligible candidate wins enough votes to trigger a runoff election, then his or her votes are “set aside.”
If Flynn is successful in his lawsuit, however, votes for him could be declared valid.
The Texas Secretary of State has not responded to requests for comment.
Below is a copy of the settlement agreement.
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Holly Hansen is a freelance writer living in Cypress, Texas. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.