March 17, 2006
Smith wants more info on Tarrant voting glitch

Former State Supreme Court Justic Steven Smith, trying to win back a seat on the bench but losing a close primary contest to inexperienced Perry appointee Don Willet, has formally requested detailed election data pertaining to the vote count problems in Tarrant County on Primary Day (see here for more).

Smith’s campaign filed a request under the state’s public information law with the Tarrant County elections office, seeking to review data including the audit trail, optical scan ballots and precinct-by-precinct results.

“Serious mistakes were made in the counting of ballots in Tarrant County,” Smith said in a news release Thursday. “We want one fair, accurate and complete count.”

Smith lost to incumbent Justice Don Willett by about 5,000 votes, according to results posted on the Texas secretary of state’s Web site. Some results may still be in flux as counties statewide canvass their results.

The request comes more than a week after a computer programming error counted some votes cast in the March 7 primary multiple times and boosted the final tally in both party primaries by as much as 100,000 votes.

Hart InterCivic, the company that made the equipment and wrote the software, took responsibility for the error last week. Hart officials said they will work with local officials to minimize future problems. Company President Britt Kauffman said in a statement that a procedural error led to inflated counts when merging totals from early voting, absentee-by-mail voting and election-day voting into one report on election night.


Smith spokesman David Rogers said the former justice isn’t likely to request a recount because it would have to be statewide and would include all paper ballots, an effort he said could cost as much as $300,000.

No formal recount requests have been filed in Tarrant County. The deadline for such requests is Monday, after both parties have canvassed the election results, officials have said.

“Unfortunately, the true result in Tarrant County may never be known,” Rogers said. “To date, there has not been a correct count of Tarrant County ballots.

“There has been an incorrect count and there has been an attempt to correct the errors in that count.”

I don't know what joy Smith will get from this request. If he decides to pursue the matter in court, it could get interesting. I've got his press release beneath the fold, which will provide some more grist for the mills of the electronic voting machine skeptics.

Former Texas Supreme Court Justice Steve Smith announced today that he has taken the next step towards filing an election contest or request for recount in his race for Texas Supreme Court, Place 2. "Serious Mistakes were made in the counting of ballots in Tarrant County. We want one fair, accurate and complete count," Smith said. "To that end, we have filed a Public Information Act request with the Tarrant County Elections Administrator seeking to review public documents relating to the Republican Party primary election in Tarrant County," added David Rogers, Smith's campaign manager.

"Unfortunately, the true result in Tarrant County may never be known," said David Rogers, Campaign Manager for former Justice Smith. Though there were 211 election day voting locations for the 635 precincts, audit tapes reporting the election results in each machine were run in only 103 locations. One hundred and eight (51%) of the voting locations did not have properly run audit tapes.

Initial results in Tarrant County included 27,895 phantom votes. The final statewide margin between Smith and Willett was 5,441 votes. The first "corrected" result reported by Tarrant County was a margin of 7,922 (62%-38%). That margin is larger in terms of raw votes than the margin in Harris County, Dallas County or Bexar County, all of which have substantially larger populations than Tarrant County. The "corrected" results switched the first and second place results in Tarrant County's 342th District Court.

Those numbers for Tarrant County are suspect in part because Tarrant County voted for Smith in the 2004 primary by 11,423 to 10,331 (53%-47%), and Smith only lost Tarrant County in the 2002 by 17,411 to 15, 215 (47%-53%). In 2002 and 2004, the statewide margins were substantially higher (7% and 6%, respectively) than the statewide margin in 2006 (less than 1%). The combined statewide margin between Smith and his primary opponents over three elections is less than 1/40th of one percent (417 votes). (Smith: 841,586; Rodriguez, Green & Willett combined: 842,003.) If Smith's margin in Tarrant County is actually the same as his margin in either 2002 or 2004, he won statewide.

Despite the fact that Tarrant County Interim Elections Administrator Gayle Hamilton has expressed a desire to count the Tarrant County ballots correctly, attorneys for the Tarrant County District Attorney's office and the Secretary of State's office have told Hamilton she may not count the ballots without a court order, an election contest or request for a recount.

"To date, there has not been a correct count of Tarrant County ballots," said Rogers. "There has been an incorrect count and there has been an attempt to correct the errors in that count. What we want - and what we understand the County Elections Administrator and the County Republican Chair want - is a single correct count of the ballots in Tarrant County. We know for certain that mistakes were made, and the acknowledged mistakes changed the Tarrant County result by a number of votes more than double the remaining statewide margin. Former Justice Smith thinks that a single accurate count is a reasonable request."

The Texas Election Code requires that a recount for a statewide office would require that all paper ballots statewide be recounted in addition to the ballots in Tarrant County, and that the expense would be borne by the party requesting the recount.

Additionally, in far west Texas, Winkler County, which went for Smith by margins of 260-92 (74%) and 468-249 (65%) in the 2002 and 2004 elections, went against Smith by an unbelievable 0-273 (100%) margin. Governor Perry received only 83% of the vote in Winkler County, and no other contested candidate topped 80%. The propositions on the ballot topped out at 93%.

Winkler county used machines from Election Systems and Software (ES&S), a company that was severely criticized by county officials in Webb county for programming errors and delays during the primary election, according to reports from the Laredo Morning Times of March 14, 2006. ES&S machines operate in 144 of Texas's 254 counties.

Beyond that, Duval County, made infamous by Lyndon Johnson's 1948 theft of the U.S. Senate election in that county, has reported an astonishing 55% turnout, with allegations of vote farming and vote fraud, as reported in the March 16, 2006 Corpus Christi Caller-Times.

Additionally, Jefferson County vote totals were changed by more than 1,500 for each candidate in a race for Jefferson County Judge when a recount was held on Monday, according to reports from the March 14, 2006 edition of the Beaumont Enterprise. Jefferson County had double-counted some ballots, including 644 Republican ballots. (The Jefferson County margin between Smith and Willett is 325 votes.) Some precincts had reported more votes than voters. Tarrant County double, triple, quadruple, quintuple and sextuple-counted some votes. The Enterprise reported that ES&S would cover the cost for the recount in Jefferson County, estimated at $8,000.

According to a March 16, 2006 report in the Fort Worth Star-Telegram, Tarrant County will charge any candidate who wants a recount. No mention was made of any offer by Hart InterCivic, whose machines were used in Tarrant County, to pick up the cost of a correct count.

Smith won 152 of 254 counties. No Republican primary was held in 18 counties, and the candidates tied in 2 counties. Willett won 82 counties (33%).

Steve Smith is best known as a conservative former Justice of the Texas Supreme Court who was elected in 2002 despite opposition from insurance industry interests. In private practice, Smith was best known as the attorney who filed, litigated and won the Hopwood case that ended racial preferences at Texas universities from 1996 through 2003. Smith served as a Justice on the Texas Supreme Court from Nov. 20 of 2002 until Dec. 31, 2004, and was one of only two Republican justices who did not accept contributions from insurance industry front group Texans for Lawsuit Reform.

Posted by Charles Kuffner on March 17, 2006 to Election 2006 | TrackBack


Case law for sound elections!

Honest Legal Advice for Your Local Elections Officials.

by LandShark (Paul Lehto, an attorney) at Democratic Underground 3 16 06


Tattoo these Three to your local elections officials, courtesy of the Mississippi Supreme Court opinion Debra Waters v. James "Danny" Gnemi, ordering new elections. (call these the Three Sisters if you like):

1. "Any expense or burden such compliance {with strict procedures} creates is trivial when compared to the value of the goal of maintaining our Republic."

2. "Integrity of our government can be no greater than the integrity of elections which put our government officials in office."

3. "It is therefore the duty of every {elections official} to endeavor to comply with the election statutes regardless of the personal inconvenience it may create."


Note that the Mississippi Supreme Court specifically held that they were NOT saying that fraud occurred via elections officials, but nevertheless because the opportunity to detect it was removed, extraordinary remedies like new elections were warranted. The Mississippi Supreme Court concluded their opinion by quoting itself from 1983, showing it's continuing relevance to this 2005 opinion:

"Although there is a strong public policy in attempting to preserve the will of the electorate as reflected by the tabulation of all of the votes, we take this opportunity to remind throughout the state that they invite election contests, uncertainty and the opportunity for fraud by failing to pay close heed to the election statutes whether they be mandatory or directive. Any expense or burden such compliance creates is trivial when compared to the value of the goal of maintaining our Republic. Integrity of our government can be no greater than the integrity of elections which put our government officials in office. It is therefore the duty of every registrar to endeavor to comply with the election statutes regardless of the personal inconvenience it may create." Waters v. Gnemi, 907 So. 2d 307, 336 (Miss. Sup. Ct. 2005) (citing Riley v. Clayton, 441 So. 2d 1322, 1328 (Miss. Sup. Ct. 1983).

In the Waters case, reconsideration was denied August 4, 2005, and a motion for clarification of opinion was denied August 25, 2005 (filed by Waters' counsel). At this point it is not being appealed anywhere and is as "settled" as relatively new case law is. But keep in mind that the best language was ripped out of a 1983 Mississippi case.

posted by MCM at 11:46 AM

Posted by: Support Science to Reverse Global Warming, if still possible on March 17, 2006 3:54 PM

Damn! This is serious. And I thought Webb County had problems. Smith makes a strong case that there were serious voting problems in Tarrant County and elsewhere that likely affected a statewide election.

Posted by: Chito on March 17, 2006 5:12 PM