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election contest

From the “Oops, how did that get in there?” department

Remember how the final version of SB7, the one that emerged from behind closed doors in conference committee, had a provision in it that would have made it a lot easier to overturn the result of an election via legal challenge? That was one such provision that had not been in previous versions of the bill. Well, apparently no one claims to know how it got there, and we are being promised that the next version of the omnibus voter suppression bill will not have it.

In a sweeping overhaul of Texas elections law that Republicans rushed toward approval in the waning hours of the legislative session, one provision stood out to critics as particularly alarming.

The hastily-added clause would have made it easy for a judge to overturn an election, even if there were only thin evidence of fraud. With former President Donald Trump’s historic efforts to nullify his November loss still fresh in their minds, Democrats singled out the measure as irresponsible.

“Just think about that — your election, YOUR election could be overturned without the other side being required to prove actual voter fraud,” said state Rep. Julie Johnson, D-Carrolton, in an impassioned speech on the floor of the Texas House. “The implications of this are unthinkable. To make matters worse, the provision was not in either the Senate or the House version of the bill.”

The bill never passed, dying at midnight on May 31 after the Democrats blocked a vote on it by walking out. Yet policy debates have given way to an even more basic question: Who added the “Overturning Elections” section to it?

One of the members of the conference committee that crafted the final version of the bill, state Rep. Travis Clardy, R-Nagodoches, says he doesn’t know. Other top Republicans who worked on the final draft of the legislation say they don’t know either.

What’s more, Clardy — and chief author Sen. Bryan Hughes — now denounces the measures related to overturning elections and says Republicans don’t plan to revive them in a future bill.

“There was zero appetite or intent or willingness to create some low bar where a single judge can overturn the results of an election,” Clardy said in an interview with Hearst Newspapers. “That would be horrendous policy, and it would never be healthy for the democracy.”

Democratic members say there is no way those provisions were inserted by mistake. They say they raised concerns about them with Republicans when there was time to spare for the bill to be revised.

The sections would have lowered the standard of proof to overturn an election from “clear and convincing” evidence to a “preponderance of the evidence” for many types of fraud allegations. And they gave judges the ability to void elections even if it couldn’t be demonstrated that fraudulent ballots made a difference in the outcome.

If the bill had passed, Texas would have been one of few states to have lowered the bar so much, opening the door to a flood of potential election challenges, election law experts said.

“If we deliberately design a system that says all you have to do is come up with a simple preponderance — that is, just barely more evidence than the other side — and we’re going to throw out the elections, when we have a whole gamut of election procedures in place that we justifiably expect to produce reliable results in the normal course, we’re really undermining that,” said Steven Huefner, professor of law at the Ohio State University.

[…]

State Rep. Nicole Collier, one of three Democrats on the conference committee and chair of the Texas Legislative Black Caucus, wasn’t buying Republicans’ claims that the language was added by mistake.

“They had time to review it,” Collier said. “The fact that the conference report was signed on Saturday” — the day before it went to the House floor — “means that they had read it, and they approved it.”

Must have been another typo. Really need some better proofreaders, I guess.

This is, of course, all transparent bullshit. The bill was in conference committee for over ten days. Someone put that clause in there, whether anyone will admit to it or not. I will note again how the likes of Dan Patrick were patronizingly telling everyone who made any claim about how the initial version of SB7 would suppress votes to “read the bill”. Who’s not reading the bills now? Maybe if we’d had the time to hold public hearings on this bill, we might have avoided this little embarrassment as well.

And note again, for all of the whining and bitching and threatening to veto funding for legislative functions over the Democratic quorum breaking, the only reason this obvious threat to democracy, which now all of these Republicans agree was a bad idea and which they swear they never intended to include, is not about to be law in Texas is because Dems were able to use the processes available to them to kill that bill. I feel pretty confident saying that Greg Abbott would not put fixing that provision on the agenda in however many special sessions he calls. Republicans screwed this up, because they didn’t care about the niceties of legislating, they just wanted to get their win. You can thank the Dems for sparing us the fallout of their malign incompetence.

The House is working on the omnibus voter suppression bill.

They started last night, and who knows when they may finish. If it comes to a vote, I expect this Trib story will be updated to reflect it. One of the justifications given by Republicans for banning all-night voting hours is that “nothing good happens after midnight”. In this one specific instance, I would agree.

If it doesn’t come to a vote, you can thank Democrats and their ability to wield the rulebook.

Hoping for the best. We should know by the time we wake up. I’ll add an update when we do.

Meanwhile, there was another dose of poison in SB7 that I hadn’t mentioned before:

Despite no evidence of substantial voter fraud in Texas, Republicans are preparing to pass sweeping voting legislation with new provisions that make it easier to overturn an election in which fraudulent votes are suspected and to lower the standard for proving fraud in criminal court.

The burden of proof for voter fraud charges in Texas is “clear and convincing evidence.” The bill would change that standard to “preponderance of the evidence.”

A related measure would allow a judge to overturn an election if the total number of ballots found to be fraudulent exceeds the margin of victory. In such cases, a judge could “declare the election void without attempting to determine how individual voters voted.”

“If you don’t have to show that they would have made a difference, then even ‘illegal votes’ or ‘fraudulent votes’ for your side get factored into that equation,” said Tommy Buser-Clancy, staff attorney with the American Civil Liberties Union of Texas. “This is just a perpetuation of the Big Lie, and as we’ve seen throughout the nation, this is a further weakening of the institutional strength of our democracy.”

The new provisions are last-minute additions to Senate Bill 7, legislation that has drawn the ire of Democratic and civil rights groups that have called it voter suppression since its first draft. The final version of the bill hadn’t been posted online as of early Friday evening — and was not made available to the public — but the Houston Chronicle obtained a copy.

Nothing says “election integrity” like making it easier for the loser of an election to get a judge to throw out the result of that election.

And nothing is certain but death, taxes, and litigation over this abomination of a bill if it passes.

If the bill passes the state House of Representatives and is signed by Gov. Greg Abbott—both of which are expected—the Texas chapter of the NAACP will immediately file a lawsuit against it, chapter President Gary Bledsoe said at a news conference Sunday afternoon, the Dallas Morning News reports.

The bill would ban drive-through voting and 24-hour voting, both of which were used extensively last year in and around Houston, according to the New York TimesAmong its many restrictions, the bill would limit voting by mail for people with a disability, add new ID requirements for mail-in voting, and make it a felony for election officials to send mail-in ballots to voters who did not request them. And it would set limits on early-voting hours, such as requiring polls to open at 1 p.m., not 9 a.m., on Sundays—which could impact popular “Souls to the Polls” held by many Black churches, the Morning News notes.

As it happens, early voting hours in Harris County were 1 PM to 6 PM for Sundays, at least before 2020. I imagine that was more out of tradition than anything else, and there may have been some issues with getting enough poll workers for the Sunday-morning-go-to-church hours, but that is a surmountable challenge and there’s no real reason beyond that. As Sen. Royce West noted during the debate over SB7, we can now buy booze on Sundays starting at 10 AM. Why can’t we vote earlier than 1 PM? (Spoiler alert: We all know the reason for that.)

Anyway. As I sign off, the status of SB7 in the House is unknown. Look for an update below if you didn’t stay up all night following the action live or on Twitter. Daily Kos has more.

UPDATE: Well, this was dramatic.

The sweeping overhaul of Texas elections and voter access was poised from the beginning of the session to pass into law. It had the backing of Republican leaders in both chambers of the Legislature. It had support from the governor.

Democrats who opposed the bill, chiding it as a naked attempt of voter suppression, were simply outnumbered.

But on Sunday night, with an hour left for the Legislature to give final approval to the bill, Democrats staged a walkout, preventing a vote on the legislation before a fatal deadline.

“Leave the chamber discreetly. Do not go to the gallery. Leave the building,” Grand Prairie state Rep. Chris Turner, the chair of the House Democratic Caucus, said in a text message to other Democrats obtained by The Texas Tribune.

Senate Bill 7, a Republican priority bill, is an expansive piece of legislation that would alter nearly the entire voting process. It would create new limitations to early voting hours, ratchet up voting-by-mail restrictions and curb local voting options like drive-thru voting.

Democrats had argued the bill would make it harder for people of color to vote in Texas. Republicans called the bill an “election integrity” measure — necessary to safeguard Texas elections from fraudulent votes, even though there is virtually no evidence of widespread fraud.

Debate on Senate Bill 7 had extended over several hours Sunday as the Texas House neared a midnight cutoff to give final approval to legislation before it could head to Gov. Greg Abbott’s desk to be signed into law.

In between their speeches opposing the bill, Democrats seemed to be trickling off the floor throughout the night, a number of their desks appearing empty. During an earlier vote to adopt a resolution allowing last-minute additions to the bill, just 35 of 67 Democrats appeared to cast votes. Around 10:30 p.m., the remaining Democrats were seen walking out of the chamber.

Their absence left the House without a quorum — which requires two-thirds of the 150 House members to be present — needed to take a vote.

By 11:15 p.m. about 30 Democrats could be seen arriving at a Baptist church about 2 miles away from the Capitol in East Austin.

The location for Democrats’ reunion appeared to be a nod at a last-minute addition to the expansive bill that set a new restriction on early voting hours on Sundays, limiting voting from 1 p.m. to 9 p.m. Over the last two days, Democrats had derided the addition — dropped in during behind-closed-door negotiations — raising concerns that change would hamper “souls to the polls” efforts meant to turn out voters, particularly Black voters, after church services.

Standing outside the church, Democrats said the walkout came only after it appeared Democrats’ plan to run out the clock on the House floor with speeches wasn’t going to work because Republicans had the votes to use a procedural move to cut off debate and force a final vote on the legislation.

“We saw that coming,” said state Rep. Nicole Collier, a Fort Worth Democrat and chair of the Texas Legislative Black Caucus. “We’ve used all the tools in our toolbox to fight this bill. And tonight we pulled out that last one.”

With about an hour left before the midnight deadline, House Speaker Dade Phelan acknowledged the lost quorum and adjourned until 10 a.m. Monday morning. Midnight was the cutoff for the House and Senate to sign off on the final versions of bills that have been negotiated during conference committees.

A couple of things to note here. One is that this is almost certainly a temporary victory. There’s going to be at least one special session already for redistricting, and so this will be on that session’s agenda or there will be another special session, possibly right away, just for this. We know that this is a top Republican priority and they are not going to just accept defeat, in the same way that they are not accepting Trump’s loss in 2020. They have the power to try again and they have the numbers to make it happen.

But the only reason the Republicans are in this position in the first place is because it took them so long to produce the final version of SB7. They had to suspend their own rules in the Senate to bring the bill to the floor for a vote there on Saturday because they were running out of time. The quorum break happened at 10:30 last night – I actually saw a tweet or two to that effect before I went to bed – which meant they were down to the last 90 minutes of available time. You wait till the last minute, things can happen, you know?

I had been wondering why this obvious priority of theirs had been seemingly stuck in conference committee for so long. Surely the Democratic amendments that had watered down some of the more stringent provisions that were later reinstated didn’t have enough supporters in the committee to make this difficult. My thinking was that the Republicans were sitting on this bill, which by now was as bad as the original SB7 that had begun to draw strong criticism from the business world, precisely because they wanted to sneak it through over the holiday weekend, when fewer people would be paying attention. It’s the explanation that makes the most sense to me, because they had to know that the Democrats would do everything they could to make them miss the deadline. Why risk that if you didn’t have to? They had full control over the schedule. Cover of darkness is the best explanation. And it deservedly blew up in their faces.

As noted, they’ll get their second shot at this. But now there’s time for everyone to pay attention again, and for the activists to get businesses and other organizations engaged. The Republicans will get their bill but the Democrats bought themselves some time, and gave their base a big feel-good moment. That’s a trade I’ll take.

What the Burnam case is about

I’m still not sure what to think about Rep. Lon Burnam’s electoral challenge against Ramon Romero in HD90.

Rep. Lon Burnam

In a case that election officials statewide are monitoring — because it involves the use of electronic devices such as iPads — attorneys say enough ballots are in question to make a difference in the race Burnam lost by 111 votes to local businessman Ramon Romero Jr.

“We feel like there’s basically voter fraud and illegality that went on out there,” said Art Brender, a local lawyer and former Tarrant County Democratic Party chairman who is on the legal team representing Burnam. “We’ll know pretty soon.”

Romero, a businessman who owns A-Fast Coping Tile and Stone, said he believes this case will be resolved soon — in his favor.

“We didn’t have tablets. What he’s alleging has nothing to do with our campaign,” he said. “I don’t believe there was anything illegal that happened. It is sad that this is where we are. We should be moving forward.”

[…]

Burnam’s lawsuit alleges that some voters in the district were approached by campaign workers who asked them to fill out applications to vote by mail on an electronic device such as an iPad.

Burnam wants to review these applications, saying he believes “that these documents and other testimony will establish beyond question that the computerized-signature operation was illegal and that I won the election.”

His legal challenge claims that of the nearly 5,100 votes cast in this race, 951 were mail-in ballots — more than enough to decide the election.

But his request for copies of all applications for mail-in ballots was rejected Friday during a hearing before state District Judge Robert McFarling of Denton, who recently was appointed to oversee the case.

Ann Diamond with the Tarrant County district attorney’s office argued against releasing all the applications, saying they are not publicly available and they include private information (telephone numbers, addresses and more). About 30 of the forms have been released.

Brender maintains that the records are public information and what he has reviewed already shows that at least three people may have voted twice — once in early voting and once on election day. A review of all the applications could show even more problems and potentially invalidate enough ballots to flip the election results.

McFarling chose to not order the release of that information, saying even if there was a problem with the way a ballot was requested, the vote should still be counted.

And he said there was no proof that data requested would lead to “admissible evidence” in the case.

“You have to have a factual basis … before we start messing with the rights of individuals to vote,” he said. “I don’t think it’s sufficient to say … we think there might be something wrong … and we want to check it out.”

See here and here for the background. I have no opinion on this particular ruling, I’m more interested in the big picture.

A key issue in this case is the use of electronic devices to request mail-in ballots — and whether that’s legal in Texas.

Political observers say the state’s Election Code only addresses electronic signatures at polling places, such as when voters cast their ballot during early voting or on Election Day.

“The use of an iPad to fill out forms to request an absentee ballot would not appear to comply with the letter of state election law, but would appear to be in line with the spirit of the law,” said Mark P. Jones, a political science professor at Rice University in Houston.

“The law simply has not been updated to take account of the rising use of iPads and other mobile devices, leaving a vacuum in the state’s election law.”

Stephen Vickers, chief deputy elections administrator in Tarrant County, said he couldn’t comment on the case because of the pending litigation.

The ultimate ruling in this case may well determine how election officials statewide process mail-in ballots for at least the rest of the year.

“This case also should hopefully spur the Texas Legislature to modify the state’s election law during the 2015 legislative session to allow for the use of electronic devices to complete mail-in ballot request forms,” Jones said. “Perhaps that reform will be the first bill that Rep. Romero files.”

[…]

Officials with both major political parties say they are watching this case.

“We trust the courts will take the issue seriously … [and] determine the best manner in which to proceed,” said Manny Garcia, communications director for the Texas Democratic Party.

Said Republican Party of Texas Chairman Steve Munisteri: “We are interested observers to see what the court rules to see if we are following the law correctly.”

There’s been some trolling about voter ID on this, but of course the voter ID law is only about in person ballots, and this challenge is all about absentee ballots. Technically, it’s not about the ballots themselves, but about the process to request an absentee ballot, and whether an iPad or similar device is allowable under the law as written. By the letter of the law I’d say not, but by the spirit – the law does allow for “telephone facsimile machines” – it’s clearly a Yes. I have no idea how the courts – or the Legislature, if this eventually winds up as an election contest to be adjudicated by the Lege – will rule, but I definitely agree (and have already said) that the law should be updated to allow this usage. There’s no good reason for it not to be allowed. There is good reason to be concerned about the peripheral effects of this case:

Romero said he wasn’t surprised by the lawsuit. But he believes this isn’t something “as Democrats that we should be insinuating.”

“Lots of people came out and were excited about being part of the primary. Now they don’t understand what’s going on,” he said. “They hear words of illegality and that scares people and makes them stay away.

“He should be welcoming me in Austin, helping with the transition. Instead, he’s doing this,” Romero said. “But he has a right to do this and we’re not mad at him. We’ll be down in Austin come January.”

I agree with Romero on this, and if his magnanimity is any indication, he’ll make a fine State Rep if he prevails in this case. Whatever the outcome, let’s make sure we update that law.

Neil finally concedes in HD48

At long last, it’s finally over.

Republican Dan Neil dropped out of the race today for the Texas House seat in District 48.

Neil lost to Rep. Donna Howard, D-Austin, on Election Day by 16 votes. After a recount, Howard’s margin fell to 12 votes. Neil then exercised his right to contest the election, which sent the matter to the Texas House. There, Speaker Joe Straus appointed Rep. Will Hartnett, a Dallas Republican, to serve as a “master of discovery” and hold a trial-like hearing.

After four days of listening to voters whose votes were suspect, Hartnett eliminated several ballots, and Howard’s margin was reduced to just four votes.

But just like in any contest, a tight victory is still a victory. And Hartnett said in a recommendation that Howard should retain her seat.

That was followed by the unanimous vote of the special committee in favor of Howard. Hard to see a path to victory from there, I suppose. A statement from Rep. Howard is beneath the fold. The Trib has more.

(more…)

Howard wins again

It’s fourth and long for Dan Neil.

The House Election Contest Committee unanimously voted [Tuesday] to uphold Rep. Will Hartnett’s determination that Donna Howard won the long-disputed House District 48 seat. Committee members said Republican Dan Neil did not provide clear and convincing evidence to win. If Neil decides to challenge the committee’s vote, it will go to the House floor.

[…]

The committee, chaired by Rep. Todd Hunter, R-Corpus Christi, heard closing arguments from both sides today. Neil’s lawyer and former state Rep. Joe Nixon focused on five voters — two who lived outside the county and three who lived outside of the district during the election season. According to current statutes, residents are allowed to vote in their individual district if they reside in the same county and fill out a statement of residence. The three voters, Nixon said, did not fill out a statement of residence.

“It’s like having a suspended driver’s license,” he said. “You don’t really have one.”

Nixon said Neil was bearing the burden of human error, and that it was up to the committee to fix those mistakes if the true outcome could be ascertained — and, if not, to declare the election void.

Howard’s attorney, Randall “Buck” Wood, said Neil was asking for legislators to ignore existing law and make new law.

“They are simply asking you not to ask a judicial body, but to act as a legislative and political body,” Wood said. “But you’re sitting here as judge and jury.”

Hartnett said the only issue in question is where the individual actually lives.

“If we open the door to strict application to these requirements, we might as well allow re-dos for every time an election is this close,” he said.

After the committee vote, Neil said he was not surprised about the outcome, but about the unanimous vote. Going into today’s committee meeting, Neil said his team leaned toward taking the matter to the House floor, but he is likely to finalize that decision [Wednesday].

Seems to me that if we always adhered to the standard Nixon advocates, Sen. Bill Birdwell would have been knocked off the ballot last year. Be that as it may, I don’t know what Neil was expecting. I doubt he’ll get any more joy from the House, but hey, it’s Bob Perry’s his money. Rep. Howard released a statement that said:

I am obviously pleased with the committee’s decision regarding this extremely close election. Their unanimous vote reaffirms Master Hartnett’s thorough scrutiny of the details of this election contest. I look forward to continuing to serve the residents of House District 48.

As do the rest of us. Most of us, anyway. Postcards has more.

Neil in it till the bitter end

I guess he doesn’t have anything else to do right now.

After some vacillation, the Republican who is contesting his loss to incumbent state Rep. Donna Howard said [Wednesday] that he is now inclined to take his fight the distance.

Last month, Republican Dan Neil said his decision to continue contesting the election might depend on the upcoming recommendation of a special House committee. But now, he said, he wants to push the matter all the way to the House floor.

“I’m back and forth on it,” Neil said.

Howard beat Neil on Election Day by 16 votes. Eventually, Neil contested the election, which led to a trial-like hearing led by Rep. Will Hartnett, a Dallas Republican. Hartnett ruled that Howard should keep her seat.

Hartnett presented his opinion to a special House committee. And next week, the committee will hear from both sides’ lawyers. Then, the committee chair, Rep. Todd Hunter, R-Corpus Christi, will announce the committee’s thoughts on the matter.

And ultimately, the members of the House could figure it out. No date has been set for the members to consider the matter.

Whatever. It’s his right, and Bob Perry’s his money. If nothing else, this ensures he gets cited in future news stories about election contests, as in “The last time a contest went all the way to the House floor was in 2011 when Dan Neil contested his loss to Rep. Donna Howard”. Gotta grab that little bit of immortality whenever you can, I always say.

Howard declared the winner in HD48

At long last.

Rep. Donna Howard won the House District 48 seat by four votes over Republican Dan Neil, according to state Rep. Will Hartnett, R-Dallas. Hartnett was appointed to investigate their election after Neil challenged the results.

[…]

Hartnett’s recommendation goes now to a select committee chaired by Rep. Todd Hunter, R-Corpus Christi, which in turn will make a recommendation to the full House. The House’s decision is final. Neil can, if he chooses, withdraw his appeal at any time.

During the four-day hearing, Neil’s lawyer, Joe Nixon, argued the margin of votes was too close to definitively declare a winner. Howard’s lawyer, Randall “Buck” Wood, said Neil could not request a recount just because he did not like the results.

Seven voters moved out of Travis County but did not change their address before voting in the election, Hartnett wrote in his recommendation. Hartnett opened four ballots during the course of the trial and did not count one of those votes because of ineffective registration, which left Howard’s margin of victory at four votes, he said.

The full report will be out later; I’ll link to it when I find it. I expect Neil to withdraw his challenge before this ever get to the House, as Talmadge Heflin did in 2005 after contesting his close loss to Rep. Hubert Vo. But who knows, he may draw it out further still.

One important point to note, from Patricia Kilday Hart:

Representative Will Hartnett, Master of Discovery for the Election Contest for Texas House District 48 releases the following statement:

“After a thorough review of the numerous challenged ballots, I have concluded that Donna Howard won the House District 48 election by 4 votes.

Voters who had moved out of Travis County without changing their voter registration and returned to vote in their former precinct caused a net subtraction of 7 votes from Ms. Howard’s margin of victory. Counting 4 unopened ballots subtracted a net of 2 votes from Ms. Howard’s margin.

Striking 1 vote by a voter who was not effectively registered added 1 vote to her margin.

I have seen no evidence of any voter fraud or of any substantial errors by any Travis County election official. My report will be released later this evening.”

Emphasis mine. Fraud, rampant fraud, was also alleged by Heflin in 2005, and it too turned out to be nothing. Be sure to remind your local teabagger of this the next time they rant about illegal immigrants stealing elections or whatever else the voices in their heads are telling them. A statement from Rep. Howard is beneath the fold.

(more…)

HD48 election contest still going on

There’s still some more testimony to be heard in the election contest between Dan Neil and Rep. Donna Howard in HD48. That and closing arguments are scheduled for today. There was a key development in the contest on Thursday just before everyone headed home to hunker down for the Snowpocalypse:

On Thursday morning, a Travis County sheriff’s deputy arrived at the hearing with a locked bag of ballots. He was accompanied by Travis County Clerk Dana DeBeauvoir, whose integrity was to be tested.

Neil’s lawyer, Joe Nixon, stood beside Ray Bonilla, one of Howard’s lawyers, as they examined the 265 nonmilitary mail-in ballots. DeBeauvoir observed from a couple of feet away.

Nixon said he thought the votes might have been included in the recount in December. Buck Wood, another one of Howard’s attorneys, said the votes had been properly eliminated.

In the end, it was determined that the votes had not been included in the recount.

Howard, Neil and members of their campaign staffs watched as the votes were announced by Nixon and agreed upon by Bonilla.

Neil said he wasn’t disappointed and was glad to get “to the bottom of it.”

Howard said the recount corroborated her position. “It lends more credibility to what we’ve said all along.”

If Thursday’s count hadn’t matched the number from the December recount, Neil’s effort to unseat Howard could have gotten a substantial boost. Such a finding would have cast suspicion over how the ballots were handled by the clerk’s office. And it might have provided enough of a reason for Hartnett to recommend something that Neil has been after all along: a new election.

Hartnett is Rep. Will Hartnett, the Special Master appointed by Speaker Joe Straus to investigate the matter. By all accounts, Howard is still leading though a couple of votes have been knocked off her tally. Barring anything dramatic, it looks like she’ll hold on, but we won’t know where things stand officially until Hartnett writes his report. Looks like we may have some answers this week, just in time for committee assignments.

UPDATE: We should have a result by Friday.

Update on the HD48 election contest

Patricia Kilday Hart sums up the state of things in HD48, where there’s a recount of the recount and a lot more testimony to come. I have no idea what to expect from this, but I think she’s right that it’s unlikely the House would vote in the end to seat Dan Neil, if only because if Special Master Will Hartnett tallies it in his favor, he’d likely be declared to be ahead of Donna Howard by an even smaller margin than she currently has. I can see a do-over election being called, for which I’d make Howard the favorite – the environment is considerably different than it was three months ago – and I can see Howard being seated if she manages to maintain the lead. Beyond that, who knows? Honestly, one more R wouldn’t mean that much now, and I’m sure the redistricting process will seek to make HD48 more GOP-friendly regardless of the outcome of this contest. We’ll see how it goes.

Senate stands down again

No vote on the rules till next week, so the 2/3 rule lives for a few more days.

In an hour-long caucus behind closed doors, Texas senators decided today to put off for a week a potentially acrimonious public debate over changing their rules. The discussion will occur next Wednesday, as Senate leaders had hinted yesterday.

In the meantime, the Senate will continue to operate under the rules it approved last session.

At issue: A proposal championed by state Sen. Dan Patrick, R-Houston, to change a rule that requires two-thirds of senators to agree before a bill can be brought up for debate. Most senators say they favor leaving the rule as it is. Patrick insists the two-thirds rule thwarts debate on important issues — read that as ones that Republicans want to pass, and Democrats don’t.

Under the current rule, because the 12 Democrats constitute a third of the Senate, they can block debate on some issues.

As Trailblazers notes, the rules the Senate operated under last session allowed for voter ID legislation to be exempted from the two thirds rule. If the default is to simply use the previous rules, which I believe is the norm, then that’s what we’ll get this session as well. This is what I expect to happen, but we’ll see. Burka has more.

There was a little bit of House action to note:

Rep. Todd Hunter will now chair the select committee in charge of determining the HD 48 vote. After a recount, incumbent Democrat Donna Howard won by just 12 votes—a result challenged by opponent Dan Neil.

The rest of the committee: Eiland, who will serve as vice-chair, Kolkhorst, Giddings, Guillen, Bonnen, W. Smith, Madden, and Lewis. State Rep. Will Hartnett remains the master of discovery.

After the committee was read, Hunter took the floor to tell members to “be very careful in discussing this matter.” Members could inadvertently cause problems by discussing the controversy in casual conversation. The committee will ultimately issue a report on the challenge.

Hartnett’s discovery report is still the main thing. In 2005, once his report made it clear that Talmadge Heflin had no case in his contest against Rep. Hubert Vo, Heflin withdrew his challenge before the House voted on it; it may have been before the committee vote as well, I honestly don’t remember. Point being, the hope is that this committee winds up having little to do.

Howard files formal response to Neil’s election contest

Just before Christmas, Dan Neil filed an election contest that challenged the result of his race against Rep. Donna Howard in HD 48, in which Neil lost by 12 votes. Howard filed a response called “special exceptions” at that time, and now she has filed her official response to Neil’s contest.

Every allegation made by Republican Dan Neil “is either wrong under the law or has no factual basis,” Democratic state Rep. Donna Howard said today in her formal response to Neil’s contest to her narrow victory in the House District 48 election.

“I am still troubled by the lack of detail Mr. Neil has provided thus far,” Howard, D-Austin, said in a statement. “If his motives aren’t purely political, then he should have no problem answering questions about the allegations he has made.”

Also today, she filed a notice of intent to take Neil’s oral deposition.

Zach Vaughn, Neil’s campaign manager, said today that Neil “is perfectly willing to answer any questions.” Vaughn said that the campaign does not yet have all the information it needs from Travis County and has more research to do on information it received last week.

“She’ll get the details as we get the details,” Vaughn said of Howard. “We believe that once we get the information we originally requested, we’ll have proof of our case.”

That deposition, which is requested for January 4 at Buck Wood’s law office, ought to be fun. You can see Howard’s answer here and her deposition notice here. Among other things, Howard says that “In one glaring instance, Neil seeks to have ballots counted in this race which should not be counted but which, if counted, would increase Howard’s margin of victory from 12 votes to 38 votes.” Wonder what Neil’s answer to that will be.

In related news, Speaker Straus has appointed Rep. Will Hartnett to be the master of discovery for the contest. Hartnett was the master for the 2004 Heflin/Vo contest, and did a commendable job. I have no reason to doubt that he’ll do another good job this time around.

Neil files for election contest in HD48

I suppose this was inevitable.

Republican Dan Neil is continuing his challenge of state Rep. Donna Howard’s razor-thin election night victory with an appeal to the Texas House of Representatives.

Neil, who trailed Howard by 12 votes after a recount earlier this month, filed a contest of those results with the secretary of state late Monday afternoon, the deadline for such a challenge.

The decision now falls to the House members, who must either determine the clear winner based on the evidence or send it back to the voters.

House Speaker Joe Straus will soon appoint a representative to lead the investigation as well as a committee to hear to the case and make a recommendation to the full chamber.

The vote of the House is the final word.

The House last heard such a case after Republican Talmadge Heflin, a former powerful committee chairman, contested his loss to Democrat Hubert Vo in 2004, said Jeff Archer with the Texas Legislative Council . Heflin’s appeal did not clear the committee.

Neil maintains that, of the 51,500 ballots cast in the western Travis County district, some were mishandled or lost, a handful of legal votes were discounted, and more than 1,900 ineligible voters participated.

There were a couple of other contests filed in legislative races in 2004, and one in 2008, but all were dropped before they were heard by the House. From what I can tell, the last time that an election contest was upheld was after the 1980 election. It should be noted that even if Neil wins his challenge, that doesn’t mean he gets to be seated. According to Section 241.220 of the Elections Code, “In an election contest in which the election is declared void, the house or committee, as appropriate, shall include in its judgment an order directing the governor to order a new election.” In that 1980 case, the winner of the contest, who was a sitting Representative, lost the rematch election by a wide margin. Just something to keep in mind as we watch this unfold. My guess is that it’s more likely Neil withdraws his contest than he wins it, but we’ll see.

In the meantime, Howard has filed her response (called “special exceptions”) to Neil’s petition, which you can read here. Of interest, from the email that accompanied this:

“The level of detail in Mr. Neil’s petition does not match the seriousness of his claims. To demand the time and attention of the Legislature, I would have expected him to do more than just throw out a bunch of ideas to see what sticks,” said Howard.

The most notable deficiency was a vague reference to 1,900 ineligible voters. No specifics were given on who these voters are, whether or not they are registered to vote in House District 48, or whether or not they even voted in this election.

“The contestant in an election contest is required to provide specific information regarding the voters and votes in question. After reviewing what Mr. Neil has submitted, it is clear that he failed to perform the due diligence necessary to file a complete petition,” said Buck Wood who Howard has retained as her legal counsel.

Another puzzling allegation concerns those voters who live overseas, are eligible to vote only in federal elections, and cast a straight party vote. The contestant states that all of these ballots should be counted even though the voter wasn’t eligible to vote in the District 48 race.

“A closer inspection of these ballots reveals that Rep. Howard would have gained at least eight votes if straight ticket ballots from indefinite voters were tallied,” Wood said.

I haven’t seen Neil’s petition yet, but it is worth pointing out that there were some very specific claims of fraud made in the Heflin-Vo race of 2004. Most of them turned out to be bogus or unhelpful to Heflin’s cause, but they did identify specific voters whose ballots they said were invalid. One presumes Neil will either do the same or will drop the matter.

UPDATE: The Trib has more.

Howard still wins after recount in HD48

Her margin is margin is a bit smaller, but still greater than zero, and that’s what counts.

With the votes counted again, the Austin Democrat beat Republican challenger Dan Neil by just 12 votes, Travis County Clerk Dana DeBeauvoir said Thursday night.

Neil had called for the recount after Howard had been declared the winner of the Nov. 2 election by just 16 votes of more than 51,000 cast in northwestern Travis County’s District 48.

In the end, only a few mistakes were found — all of which were on paper ballots — and there were not enough discrepancies to change the outcome of the election, officials said.

Howard said she wasn’t surprised by the outcome but nevertheless was happy to put the recount behind her.

“I’m glad to have a final outcome that is actually final,” she said. “The work of the district continues.”

Before the results were announced Thursday, Neil sent out a news release complaining that the clerk’s office didn’t properly count several overseas ballots.

But DeBeauvoir said Neil’s concerns were unfounded.

That’s likely to be the end of it, though Neil may file for an election contest. There’s been at least one of those filed for the past few elections, with only the Heflin-Vo contest actually making it to the point of being investigated. My guess is if one is filed it will go nowhere, too.

Rep. Donna Howard wins re-election

The closest election of this cycle has been decided, for now.

State Rep. Donna Howard, D-Austin, has defeated Republican challenger Dan Neil for state representative in District 48 by 16 votes.

The count came after Travis County officials tallied all provisional and overseas ballots, which were due to the county clerk’s office [Monday] evening.

On Nov. 2, Howard outpaced Neil by 15 votes. The Travis County Clerk’s Office said tonight that 58 additional votes were counted since election day.

Howard won with 25,026 votes, or 48.54 percent, to Neil’s 25,010, or 48.51 percent. Libertarian Ben Easton received 1,518 votes, 2.94 percent. A total of 51,554 ballots were counted.

There are still some formalities to be observed, and Neil will have until the end of them to request a recount. As noted before, that is unlikely to amount to anything. An election contest is also possible, but as I have not heard any complaints so far about irregularities, that seems a bit more remote. But I wouldn’t be too surprised by that, either. We won’t have truly final results for some time yet.

Edwards drops lawsuit to challenge election result in HD146

Former State Rep. Al Edwards, who had filed a lawsuit challenging his electoral loss in the HD146 primary to Rep.-elect Borris Miles, has now dropped the suit, which should clear Miles’ path to Austin.

Miles’ lawyer, Randall “Buck” Wood, of Austin, said he received notice Thursday afternoon that Edwards had dropped his suit, but he was not completely sure that was the end of the matter.

“I’m sitting here mystified,” Wood said. “I filed a motion Tuesday to dismiss, but I don’t know if they’ve actually dropped the lawsuit or they’re just trying to buy time. The thing is, they’re beyond the statute of limitations, so they can’t re-file it. I sure would like to know if something is going on.”

Edwards’ attorney Jay Beverly confirmed that Edwards had withdrawn his challenge.

“The Edwards lawsuit has been dismissed,” he said. “We believe there are good legal grounds for going forward, but Rep. Edwards has decided not to go forward for his own reasons.”

If that’s the case, then I wish him well. I was thinking that an election contest in the House might still be possible, but according to Texas law:

Sec. 241.003. PETITION. (a) The contestant must state the grounds for the contest in a petition in the same manner as a petition in an election contest in the district court.

(b) The contestant must file the petition with the secretary of state not later than the seventh day after the date the official result of the contested election is determined. The contestant must deliver a copy of the petition to the contestee by the same deadline.

That would suggest that the end of the lawsuit is the end of any remaining challenge Edwards may make. Congratulations to Rep.-elect Miles on his now-official victory.

Being the cynical type, I have to wonder what other reasons Edwards may have had for giving up his pursuit. One is money, though the word I’d heard was that funds would be available from interested parties – read: “Tom Craddick supporters” – for this challenge. The other possible reason I can think of is that pursuing this lawsuit meant digging up evidence to support allegations of electoral fraud. Given that meant accusing fellow Democrats of criminal behavior, it’s possible Edwards ran into some resistance. It’s probably a better strategy just to wait two more years and try again in what should be a higher-turnout race, which worked well for him last time, as Edwards was the familiar name for a lot of casual voters even though Miles was the incumbent. Miles is better known now, and one presumes he won’t have anything like the troubles he encountered during that one prior term in office, so maybe that won’t be so successful this time. It’s still probably the better shot, and it won’t alienate any potential voters. Besides, the upcoming session is going to be rough, what with budget and redistricting issues to deal with. If you’re going to pick one to miss, this would be the one.

Miles wins recount, Edwards sues

Mary Benton has the release from the Borris Miles campaign:

Borris Miles’ victory in the March 2010 Democratic Primary for State House District 146 has been confirmed by an official recount. The recount, conducted today by the Harris County Democratic Party with assistance from the Harris County Clerk’s Office, upheld Miles’ victory by 8 votes out of 10,788 ballots cast.

“I am grateful that due process was followed, and that the election result has been finalized,” Miles said. “I thank those from the Harris County Democratic Party and County Clerk’s Office for their hard work and dedication during this recount. Most of all, I thank the people of District 146 for the opportunity to serve them in Austin. I look forward to getting to work on their behalf.”

From eleven to ten to eight. Have I mentioned lately that every vote matters? Congratulations to Rep. Borris Miles.

Well, congratulations for now, anyway. Al Edwards still isn’t going away. He’s now claiming there was fraud in the election.

Edwards boils down whose votes were wrongfully counted into five categories:

One, voters who live outside of his district; two, voters who were improperly registered or whose registration had been canceled; three, voters who were ineligible to vote because of a felony conviction, four, voters who did not properly fill out early mail voting applications, and lastly, that ballots were cast for Miles that were procured by fraud or without the knowledge of the actual voter.

In the petition, Edwards also claims that he believes that votes cast for him by legal voters were not counted because of fraud and that illegal conduct prevented legal voters from casting their ballots.

Way to parrot a whole bunch of GOP talking points there, Al. I wonder who’s bankrolling this effort, because between it and the recount, it’s going to cost him a fair bit of money. Will it be followed by an election contest in the House if he loses again? We’ll just have to see how it goes.

Miles wins by 10

Just call him Landslide Borris.

State Rep. Al Edwards, who lost his rematch with challenger Borris Miles by 11 votes in last week’s Democratic primary, saw that margin narrow by one vote Tuesday, after an early-voting ballot board canvassed provisional and mail ballots. After 39 votes were added to the total, the tally was 5,050 for Miles and 5,040 for Edwards.

[…]

I asked the veteran lawmaker just a few minutes ago what he plans to do. “I haven’t revealed that yet,” he said. “We’re looking at all different angles.”

Keir Murray, a Miles campaign consultant, said he wouldn’t expect a recount to change anything, since most of the votes were cast electronically. “We’d rather be in our position than Edwards’,” he said. “I guess anything can happen, but historically it’s been very difficult for results like these to be changed.”

I was unable to make it to the precinct chairs’ meeting tonight, so I can’t personally confirm that the result was accepted by the HCDP, but I haven’t heard anything to suggest it wasn’t, so I daresay it was. I’ve also heard that Edwards will formally request a recount on Monday. As Murray suggests, it probably won’t change anything, but you never know. We’ll see how it goes.

Recount coming in HD146?

It’s not official yet, but I can’t imagine there not being a recount in a race decided by 11 votes.

[Borris] Miles, a former police officer who owns an insurance business, said he had not yet received a concession call from [Rep. Al] Edwards, but looked forward to working with him “and getting him alongside me to work with me to address some of the issues in our community.”

Edwards did not return repeated calls seeking comment Wednesday, but in public remarks made shortly after the election, he indicated an interest in seeking a recount.

KTRK and KPRC also mention Edwards talking about a recount. I fully expect that to happen, though I presume it will wait until this election has been certified by the County Clerk.

Thirty-three Democratic voters cast provisional ballots in the race, said Hector DeLeon, a spokesman for the Harris County Clerk, which conducted the primary. A provisional ballot is used when a person tries to vote on election day when his or her name is not on a list of registered voters in that precinct. The clerk’s office, by law, also must wait five days after election day for ballots that could be mailed from overseas, DeLeon said.

A ballot board made up of Democrats appointed by the party is expected to meet Tuesday and decide which provisional and overseas ballots will be counted, said John German, the administrator of elections for the clerk’s office.

The official results are expected to be certified two days later, officials said, and either candidate can request a recount by March 13. That request would have to be made to Harris County Democratic Party Chair Gerald Birnberg.

Figure that overseas ballots are unlikely to make any difference. It’s hard to say with provisional ballots, but given how few of them there are, even if all of them were accepted, Edwards would have to receive two thirds of them to affect the outcome. I think his main hope will be that a recount of the absentee ballots will yield some changes, and if that’s not enough he may try an election contest. We’ve seen a few of those in recent years, though only the 2004 challenge by Talmadge Heflin against Hubert Vo actually proceeded to completion, and the result still stood. Anything can happen, but my money is on Miles. The Trib and Nancy Sims have more.