An appeals court has overturned a judge’s previous decision declaring Willie Mims as the winner of the Democratic Primary for Smith County Precinct 1 constable and issued a runoff election take place between the other two candidates.
In an opinion issued Thursday, the 12th Court of Appeals in Tyler granted Bobby Garmon’s request for a permanent injunction, which stops Smith County Democratic Party Chair Michael Tolbert from certifying Mims as the primary winner.
Garmon appealed Judge Jim Parsons’ March 18 judgment that allowed Mims to become the winner of the March 3 contest, in which he received 51% of the vote. The appeals court granted a runoff election between Garmon and the third candidate in the race, Curtis Traylor.
On Jan. 9, Garmon, who has been serving as the constable in an appointed role since 2017, filed a lawsuit against the Smith County Democratic Party that claimed Mims did not have the required number of signatures on the petition he used to file for candidacy.
During a Jan. 21 hearing, Parsons agreed with Garmon’s claims and issued a temporary injunction to prevent Smith County Democratic Party Chair Michael Tolbert or other party members from declaring Mims the party nominee if he were to win the election.
After the primary election, he said that a runoff between Garmon and Traylor was needed to determine the winner.
On March 18, Parsons said in a final judgment that a candidate cannot be declared ineligible once the voting process had begun. Ballots with Mims listed as a candidate had been mailed out for overseas and military absentee ballots when Parsons made his original ruling.
In the primary election, Mims received 51% of the vote compared to Garmon’s 38% and Traylor’s 10%. There is no Republican challenger in November.
In the 12th Court of Appeals opinion, Chief Justice James Worthen wrote that Parsons’ judgment was made in error and Garmon is entitled to injunctive relief under the Texas Election Code.
“Accordingly, we conclude that under the circumstances of this case, Judge Parsons had no discretion to deny Garmon’s petition for permanent injunction and abused his discretion by doing so,” the opinion read.
Worthen writes that Garmon’s lawsuit did not seek to remove Mims’ name from the ballot, but he does seek equitable relief in the form of a runoff election between the two candidates “the voters should have chosen.”
Garmon said he decided to file the appeal for Parsons’ judgment to fight for the people who voted and donated to his campaign. He wanted to make sure the voter law was followed correctly.
“I feel real good,” Garmon said Friday. “My main thing is I wanted it done the right way.”
Garmon said he didn’t know what the chances were of him winning the appeal. Through the help of his lawyer, Dallas Tharpe, family and friends, Garmon decided to appeal.
He paid for the lawsuit and court process fees through his own money and campaign funds. His next step will be to continue campaigning and reach out to voters ahead of the election.
Mims said he doesn’t agree with the appeals court decision because it goes against the Texas Election Code.
“They’re trying to tell people their vote doesn’t count, and we’ve come too far to hear that,” Mims said.
Mims added that he was not surprised by the latest court decision. He said the appeals case should have been held in a different location other than Tyler due to bias.
His next step will be meeting with legal counsel to determine the next action.
Traylor said the ruling caught him by surprise.
“I think the election was stolen from the citizens,” Traylor said. “I didn’t know there was an appeal. It caught me off guard.”
Traylor said he had put the election behind him and the most recent ruling doesn’t make sense to him.
“I’m here for the Precinct 1 citizens so they have some kind of choice,” he said.
The Texas Election Code states that a challenge to a candidate cannot be made after the 50th day before the date of the election.
Worthen writes in the court opinion that the deadline is for filing a challenge, and that challenge can continue after absentee ballots are mailed as long as equitable relief does not interfere with the election schedule.
The runoff election was originally scheduled for May 26, but due to COVID-19 Gov. Greg Abbott said the election would be postponed to July 14. Under this schedule, absentee ballots will be mailed by May 30.
Worthen states that the runoff between Garmon and Traylor would not interfere with the election schedule in November.