Lawyers for Talmadge Heflin and Hubert Vo had their day in the House yesterday.
Heflin's lawyer, Andy Taylor, maintains that Vo's "razor close" victory margin was decided by illegal ballots, and that the election otherwise would have gone to Heflin.
Taylor said he contacted 129 voters who cast ineligible ballots and agreed to reveal their votes, and that Heflin would have won by 10 votes if the ineligible ballots hadn't been counted.
But Vo's lawyer, Larry Veselka, said his examination of the ballots increased Vo's margin of victory to 37 votes.
Taylor, who previously has alleged fraud in the election, toned down that language Thursday, saying only that there were "serious and deep flaws."
Most errors resulted from actions of unspecified election officials, Veselka said.
"It should be clear what we have at stake here," he said. "We don't have voter fraud, but honest mistakes by people living busy lives."
He said Taylor failed to seek enough evidence to prove that the election results should be overturned.
[Rep. Will] Hartnett, the presiding lawmaker, appeared skeptical of arguments by both sides.
"You are asking me to assume an awful lot," he said during discussion of the eligibility of one voter. "There's no clear evidence in all of this. It's muddied up."
In considering a dispute over whether signatures on an Election Day list indicated a double vote, he said: "It's suspicious, but it seems to me we are speculating. At best we have sloppy activity."
As the lawyers began arguing over individual cases, Hartnett made it clear he was holding Taylor and Heflin to a tough standard.
Under the law, evidence must be "clear and compelling" in order to throw out a vote as illegal. As Vo lawyer Larry Veselka put it, that is higher than the "preponderance of evidence" needed to decide ordinary lawsuits but lower than the "beyond a reasonable doubt" of criminal trials.
Here's an example of Hartnett's use of the standard.
Both sides agreed that scores of voters had voted illegally, mostly because they had moved. Often they were mistakenly told by election officials that they could vote at their old precincts.
In those cases, their votes would be subtracted if it could be determined for whom they voted. They were sent written questionnaires with questions from both attorneys, and signed them in front of a notary.
In one case a voter testified that he voted the straight Democratic ticket. But in a later question he was asked if he possibly voted for Heflin. He answered "Don't know."
It is possible, on the electronic ballots used, to push a button for the straight ticket but to then vote for individuals of the other party down-ballot.
Veselka argued that the voter may have done that. Taylor argued that it was pretty clear that "straight ticket" meant "straight ticket."
Master Hartnett responded: "My inclination is that under 'preponderance of the evidence,' yes. But 'clear and convincing? No."
Finally, this wouldn't be our Lege if there weren't an element of unintentional comedy.
Heflin has fellow Houstonian, former legislator and lawyer Ron Wilson on his side. Wilson, a Democrat who lost the primary race in March, said he offered his services — for free — to Heflin because "it just so happened that he's the one that came out on the bottom."