The mayor of Floresville is considering legal action after the city council canceled the municipal election set for Nov. 5 and rescheduled it for next May — an action that appears to violate state election law.
Mayor Cissy Gonzalez-Dippel expressed frustration with the lack of guidance she has received from state elections officials, the Wilson County district attorney and the city’s own attorney, Sylvia Rodriguez, before and after the cancellation.
According to the Texas Election Code, cities like Floresville, southeast of San Antonio, have been prohibited since Jan. 1, 2017, from changing their municipal election dates.
Over the objections of Gonzalez-Dippel, the council of five voted unanimously to push back the election, extending by six months the two-year terms of three of the council members. In Floresville, the mayor does not have a vote on council matters.
Gonzalez-Dippel said she has enlisted the support of three candidates who filed papers to run for those three council seats. The mayor said she asked for legal advice because she has gotten conflicting opinions about the legality of the election change, in particular from the Texas Secretary of State’s Elections Division.
“From what I’m getting from the state, they are expecting us, the citizens, to do something,” Gonzalez-Dippel told The Texas Monitor. “If the state wasn’t willing to do anything about this, why did they bring it to our attention? It’s very discouraging.”
While the Election Code is clear that the city should not have canceled the election, it says nothing about what happens to a city that doesn’t follow the code. Gonzalez-Dippel said she was told the state would not take action until Floresville holds its illegal election in May.
“I just can’t believe we have to do it this way,” she said.
State, county and local officials familiar with the election matter have been silent. The Texas Monitor contacted three top officials with the Elections Division, including Keith Ingram, the state’s director of elections, the day before Floresville’s scheduled election date and several times after the date to ask for their answers to legal questions. They have responded to none of those inquiries.
Similarly, messages left with Wilson County District Attorney Audrey Gossett Louis and Rodriguez, the city attorney, have not been returned. The council members serving beyond their two-year terms — Gerard Jimenez, Gloria Morales Cantu, and Juan Ortiz — and the two others who voted for the cancelation, Marissa Ximenez and Gloria Martinez, also did not respond to requests for comment.
“It’s like the city attorney and the council have been put on a gag order by someone, I don’t know who,” Jan Nissen, the wife of council candidate Nick Nissen, told The Texas Monitor. “I think they think they got one over on us and they can do what they damn well please.”
Art Martinez de Vara, a municipal law specialist and the former mayor of Von Ormy (a small town about 40 miles northwest of Floresville), told The Texas Monitor the Floresville council clearly did not abide by the elections code and did not qualify for any of its exemptions.
The council and city attorney also probably violated state open meetings laws by meeting in secret to discuss the matter and then coming out and voting without public discussion, Martinez de Vara said.
A previous council voted in 2011 to move the date of the municipal election to the first Tuesday in November to coincide with other local, state and national elections. That action would seem to have violated Floresville’s city charter, which still calls for elections in May. However, state law takes precedence over local legal authority.
While there had been council discussions about returning to the May date, including during 2016-18 when Nissen served on the council, no formal action was taken.
In late June the city posted notices for candidates for three council positions to file papers beginning July 20, for the November election. The city notarized papers for at least three candidates, including Nissen, Gonzalez-Dippel said.
The council, however, called a special meeting on July 17 to vote to call off the November election. Council members who spoke during a brief public portion of the meeting said they wanted to push back the election to conform with the city charter.
Gonzalez-Dippel said an email exchange with staff in the legal department of the state elections office convinced her the council was breaking the law. In August, Chuck Pinney, an attorney for the Elections Division, emailed Floresville Schools Superintendent Sherri Bays, advising her not to cancel the school board election.
“As we have explained, Election Code 41.0052 does not currently provide any authority for the city to move the date of their general election at this time,” Pinney’s email to Bays said. “Pursuant to Election Code 41.008, an election that is held on a date not permitted by the Election Code is considered void.”
Unlike the city, the Floresville school district held its election on Nov. 5.
Since then, Gonzalez-Dippel has attempted to contact state election officials again, with mixed success. One official told Nick Nissen that he and other citizens in Floresville couldn’t take any action until after the city violated the election code by holding an illegal election in May.
Martinez de Vara said legal action might be needed to get clarification and direction from the state about what to do with its election and its three council members who are serving without voter endorsement. If an election in May is illegal, it might be necessary for Floresville to call for a special election as soon as that determination is made, he said.
Residents have been venting their frustration via Vote Now Floresville, a Facebook page with 155 members as of Thursday.
“They’re mad,” Jan Nissen said. “By stealing the opportunity to vote, they’re taking from us the loudest freedom we have and that’s the voice of the public.”
Mark Lisheron can be reached at [email protected].