Smiley recount upholds results; Benavidez new mayor

Former Smiley City Councilwoman Lisa Dominguez Benavidez will become the first female mayor of Smiley after a Tuesday, May 31, recount confirmed she was elected by a one-vote margin.

Gonzales County Elections Administrator Gwen Schaefer said the results from the May 7 mayoral election, which had Benavidez receiving 69 votes and incumbent Mayor Mike Mills receiving 68 votes, will stand.

A three-person appointed recount panel — comprised of people with no stake in the Smiley municipal election — completed the recount Tuesday evening at Schaefer’s office in the Randle Rather building in Gonzales with Smiley City Secretary Deborah Bustamente overseeing the recount.

Mills had told the Inquirer he sought the recount after allegations of what he called “election violations, ethics violations and voter fraud” came to light during the campaign. Among those allegations was a claim that at least one individual cast a ballot for Benavidez despite that person not living within the Smiley city limits.

However, according to the Texas Secretary of State’s Elections Division, a recount “does not have the scope of an election contest in court.” This means that a recount does not look at the manner in which voters were qualified to vote in person or by mail. It doesn’t contest the official election results nor does it authorize requalifying or disqualifying of voters.

Schaefer, who served as the recount chair, said the panel was comprised of Nicole Vogel, Scott Jewett and Barbara Jewett.

The recount did not discard any votes due to questions about the intent of the voter (for whom they were trying to vote), nor were there any over votes where a person voted for more than one candidate in a race.

Mills presided over the election canvass on May 18, which was performed by Benavidez and City Councilwoman Diana Moreno. The two top votegetters in the at-large City Council race — Melva Childress and Ellis Villasana — were declared to have been elected and were sworn into office by Municipal Judge Gary Schroeder that day.

Benavidez was sworn into office by Gonzales County Judge Pat Davis on Wednesday, June 1. She is expected to preside at the next Smiley City Council meeting on Thursday, June 16.

Right to contest

Mills still has the right to dispute the outcome of an election through a formal election contest. A formal election contest can challenge the outcome on the basis that “(1) illegal votes were counted, or because (2) an election officer or other official administering the election either (i) prevented eligible voters from voting, (ii) failed to count legal votes, (iii) engaged in fraud or illegal conduct, or (iv) erred in some material way.”

The contest would be filed in either the 25th District Court of Judge William Old III or the 2nd 25th District Court of Judge Judge Jessica R. Crawford. Since the recount did not change the outcome of the election, the filing deadline is 30 days after the canvass took place, which will be June 17.

If Mills formally contests the election, he would be filing suit against Benavidez as the defendant since she was the winning party in the election. Voters at large within a political subdivision do not possess standing to intervene as parties to an election contest for public office, so only Mills could file the contest.

In an election contest, the court has the authority to: (1) examine ballots and equipment; (2) compel voters to reveal how they voted; (3) declare an election void if illegal votes are greater than or equal to the number of votes necessary to change the outcome or cannot ascertain the true outcome of the election; (4) order a new election (or new runoff election), if unable to ascertain true outcome; (5) subtract illegal votes, if able to determine the side for which an illegal vote was cast; or (6) declare outcome of election, if able to ascertain true outcome.