Harris County commissioners have questions about the removal of the race for Houston City Council Member District B from the Dec. 14 runoff election and what it could mean for future elections.

Fourteen candidates ran in the Nov. 5 election for one seat on Houston City Council—District B. The seat is currently held by Vice Mayor Pro Tem Jerry Davis, who did not seek reelection. According to Harris County Clerk’s Office election results, the top three finishers were Tarsha Jackson with 3,322 votes, or 20,85%; Cynthia Bailey with 2,302 votes, or 14.45%; and Renee Jefferson Smith with 2,137 votes, or 13.41%. The close results triggered a runoff election between the top two finishers to be held Dec. 14.

But the Clerk’s Office announced Nov. 20 that the District B race would not appear on the runoff ballot, following a legal challenge filed by Jefferson Smith. She asserted that Bailey—the second-place finisher—should not be allowed to run for office as she has a felony conviction.

According to the Texas Election Code, a runoff election for a contested office may not be held until the judgment in the contest becomes final.

“Due to a legal challenge contesting the outcome of the Houston City Council District B Race, the office of the County Attorney advised me that the District B race could not be on the runoff ballot per the Texas Election Code,” Harris County Clerk Diane Trautman said during the Dec. 3 Harris County Commissioners Court meeting. “The city of Houston is just our client—customer, and I am just administering this election for them and following the advice of the county attorney and the law.”

Precinct 1 Commissioner Rodney Ellis said he was concerned about protecting the rights of District B voters and believed only a court ruling would have the legal authority to remove a race from the ballot.

“There are a lot of people, particularly in District B, who are concerned about being disenfranchised in the [voting] process,” Ellis said during the meeting. “I think when it comes to protecting someone’s right to vote, there are a lot of lessons to be learned from what happened here. In my opinion, I think some serious mistakes were made.”

Ellis added that if a court decision on the challenge is not made by Dec. 9, the race may not return to voters Jan. 28 and could be pushed until as late as March, meaning Davis would remain on the council until a successor could be elected.

“I, too, am somewhat angry because I am representing my district and the majority of my district... is disenfranchised—it means that they just don’t get a right to vote, and that’s what’s happening here on Dec. 14,” Davis said during the meeting. “We’re talking about 200,000 [people] that are not represented.”

Rosie Lee McCutcheon, a Texas Organizing Project member and resident of District B with a felony conviction herself, said while she supported Jackson in the Nov. 5 election, she believed Bailey deserved to run for a seat on the Houston City Council despite her past.

“These lawsuits are trying to take away my vote, my voice in two [ways]—one, for living in District B, the other for having a felony conviction,” McCutcheon said during the meeting. “I am a person who deserves respect. I deserve the right to vote, and I also deserve the choice to pursue an elected office. My hope is that this issue is clarified soon and that the courts dismiss the sour grapes of a third-place finisher and allow Cynthia Bailey to take the place she earned on the ballot.”

Robert Soard, first assistant for the Harris County Attorney’s Office, said Trautman followed the law in removing the race from the runoff ballot.

“I don’t believe commissioners court wants an elections administrator who chooses which statutes she follows and which statutes she does not—that’s the bottom line,” he said. “I don’t know how you can read that statute and say that the county clerk can proceed with a runoff election when the statute says 'No, you cannot.'"

Houston Mayor Sylvester Turner, who will also be on the Dec. 14 runoff ballot, said after the Dec. 4 City Council meeting that he believed the county made the best decision possible.

"I believe [the] Election Code states that when an election contest is filed, you can't proceed with the runoff until it is resolved," Turner said. "You have to be very careful with that because it's a slippery slope if any candidate who is not successful can file [an] 'election contest.' But I think the county made the best call that they could, and now we need to make everyone move very quickly to resolve this election contest by the court system so we'll know how to proceed in District B."

Ellis said he was concerned with the precedent that could be set for future elections, adding that the county needed to do something to ensure the County Clerk’s Office would not find itself in this position again.

“If a court decides you couldn’t go forward [with an election], that’s one thing. But I would hate for us to be in this position [again]—it’s uncharted territory,” he said. “This could be a continuous cycle for every election that comes up. Is there anything unique about this set of circumstances to where it couldn’t happen again? I don’t think so.”

The commissioners court went into executive session following the public discussion, but no action was taken on the matter.

Emma Whalen contributed to this report.