If three days of early voting are any indication, the tense runoff fight for the state Senate 26 seat between Trey Martinez Fischer and José Menéndez is attracting more voters than cast ballots in the first round election on Jan. 6, the result of record spending in the campaign that has pitted two Bexar County Democratic members of the House against one another in the fight to succeed departing Sen. Leticia Van de Putte, who is running for mayor.
The Jan. 6 state Senate ballot included two Republicans, Alma Perez Jackson and Joan Pedrotti, and a third Democrat, Al Suarez. Voter turnout was a miserable 5%. The five candidates in the first round drew only 19,158 voters, including 8,215 early voters. Martinez Fischer finished well ahead of Menéndez and the others with 8,231 votes, or 43.28%. Menéndez finished a distant second with 4,824 votes, or 25.37%.
Special elections seldom draw many voters, and in most cases, a runoff would draw even fewer voters with one party knocked off the ballot. This time it's different. A total of 6,977 people voted in the first three days of early voting this week, which continues today and Friday. At the current pace, that would add up to more than 11,000 early votes, or a 35% increase in the early turnout. If the same increased turnout occurs on Election Day the race will draw more than 25,000 voters, still a low percentage of registered voters, but enough of an increase to suggest a tight race.
Click here for early voting sites. The special election runoff will be held Tuesday, Feb. 17.
The increased turnout appears to be driven by negative campaigning and the role of outside money that aims to rally Republicans to cross party lines and vote for Menéndez. What's different about this race is the role the powerful Texans for Lawsuit Reform (TLR), an ultra-conservative lobby, is playing, contributing more than $550,000 to finance broadcast ads and direct mail pieces attacking Martinez Fischer and supporting Menéndez. The Express-News reported Tuesday that more than $2.3 million has been spent on the race, including the TLR money that actually exceeds the $513,000 that Menéndez has spent to date.
There are no limits to what individuals and political action committees can contribute to a state candidate. Martinez Fischer himself has spent $1.27 million, and as Menédez pointed out in the newspaper article, that includes a $215,000 contribution from Houston personal injury lawyer Steve Mostyn, a nemesis of the TLR.
While that might not set a record for a state Senate race, it's an extraordinary sum in a special election with an abbreviated campaign timeline. If this were a normal runoff, attracting mostly party regulars who vote in all elections, Martinez Fisher would be expected to win handily based on the first-round results. Whether that remains the case with heightened turnout and cross-party voting will be a good measure of whether Big Money can swing a race.
Martinez Fischer is a plaintiff's lawyer and a vocal, at times coarsely spoken Mexican-American. He looks and sounds like a boxer. Menéndez, a title company executive, is softer spoken and less combative. People who watch Austin politics more closely than I say newly elected Lt. Gov. Dan Patrick would prefer to keep Martinez Fischer out of the Senate, which is now a bastion of ultra-conservative Republicans, who now outnumber Democrats 20-11. Regardless of the runoff outcome, the winner will be the least senior of the minority party, but Fischer-Martinez would be a thorn in Patrick's side, while Menéndez has said he would cross party lines to try to be effective.
Texans for Lawsuit Reform, founded in 1994, has come to stand for much more than what its name implies. The group was originally formed to tackle Texas' well-deserved reputation as the "capital of frivolous lawsuits," as one Wall Street Journal story stated. Plaintiffs lawyers sought to file lawsuits in the state whenever possible, and the venues of choice were San Antonio and south to the border, especially state district courts in the Rio Grande Valley, where working class Mexican-American jurors were famous for returning monumental damage awards against corporations.
In 1987, CBS' "60 Minutes" broadcast a Mike Wallace piece on venue-shopping titled "Justice for Sale," which cast the state in a negative light as an anti-business state where wealthy plaintiffs lawyers bankrolled judicial candidates who showed their gratitude with favorable treatment in trial courts. TLR's founders had little difficulty galvanizing broad support for their reform efforts.
Given the reputation South Texas enjoyed as happy hunting grounds for big jury awards, it's no surprise that the rapid growth and political influence of Texans for Lawsuit Reform is deeply rooted in San Antonio. That's evident with a visit to the TLR website, which features a home page video tribute to Red McCombs, arguably San Antonio's most famous and colorful billionaire and the first business owner to hold a fundraiser for TLR in its early days.
That tribute video, which was made for a 2014 TLR gala in Austin honoring McCombs, includes such San Antonio luminaries as Bartell Zachry, chairman of Zachry Interests; Lowry Mays, co-founder with McCombs of Clear Channel Communications; Charles Martin "Marty" Wender, one of the city's most successful real estate developers, and U.S. Senator John Cornyn.
"TLR always does what's good for Texas, just like Red," Dick Weekley, co-founder and CEO of TLR, remarks in the video.
As Republicans gained power in the state, a wave of tort reform bills were passed by the Texas Legislature, first in the 1995 session, with new bills added in 1997 and 1999. By the year 2000, Texas was no longer a welcoming venue for plaintiffs lawyers as more and more professions and industries gained protection against massive jury awards. More tort reform legislation was passed in every legislative session since 2003 through 2013, except in 2009.
It's hard to see what else the TLR has left to accomplish in limiting corporate and business liability in Texas courtrooms. When "60 Minutes" and Mike Wallace returned to Texas in 1998, to ask if justice was still for sale in Texas, "it got the same answer it got when it asked in 1987. Yes it is, only the players have changed," wrote one Austin-American Statesman editorial writer. What the program found is that Texas, one of only eight states that elects judges in partisan races, now had a state judiciary, including the Texas Supreme Court, firmly in the hands of Republicans. Where plaintiff's lawyers once spent huge sums to keep favored judges and justices on the bench, today it's businesses, corporations and insurance companies spending big money to keep like-minded judges in office.
Today, the deeply funded TLR serves more as a defender of all ultra-conservative causes in Texas, focused on keeping the state as deeply Red and pro-business as possible, rather than a lobby focused only on tort reform legislation.
"The pendulum in Texas needed to swing, but it has swung way too far to the right," one moderate observer of the Senate District 26 race said.
How influential the TLR will prove to be in the Senate District 26 race will be a good barometer of whether unlimited campaign contributions determine the outcome of a race. Either way, it's hard to believe that Martinez-Fischer and Menéndez, who once described themselves as friends, will be spending any time together after next Tuesday.
House District 123
Big outside money is not in play in the other special election runoff that will be decided next Tuesday to determine who will take the seat vacated by former state Rep. Mike Villarreal, who also left the Texas Legislature to run for mayor. Former City Councilmember Diego Bernal almost pulled off a first round win Jan. 6 on a crowded ballot of six candidates that included three Democrats, one Republican, one member of the Liberal Party and one member of the Green Party. Bernal finished with 3,3,72 votes, or 47.46%, while the runner-up, little-known Republican Nunzio Previtera, finished with 1,512 votes, or 21.28% in a race that also drew 5% of registered voters.
While outside money is not playing a major role in the race, the early voting turnout appears to be greater than it was in the first round, perhaps as a result of the turnout for the Senate race. House District 123 overlaps with the larger Senate District 26. Republican Gov. Greg Abbott also made a campaign appearance in San Antonio for Previtera, which could be driving greater turnout. There were 3,211 early votes cast in the Jan. 6 election. If the early voting turnout continues apace Thursday and Friday, that number will reach 3,600, an increase of 10%.
Correction: An earlier version of this story said Menéndez is a lawyer, he is actually vice president for Stewart Title Guaranty.
*Featured/top image: Texas State Capitol building in Austin. Photo by Stuart Seeger.