By Greg Moses
While it may be another week before the Master of Discovery releases a report on the challenge brought against the election of Texas State Rep. Hubert Vo (D-Houston), informal signs indicate that the challenge will fail. In fact, given irregularities discovered in voter questionnaires that have been returned by the challenger with two kinds of ink and two kinds of handwriting, it would seem best if the challenger gracefully withdrew as soon as possible.
By the time that Master of Discovery Will Hartnett (R-Dallas) called the first break on the second day of hearings Friday, it would have been clear to him that the challenge had failed. That was the point at which he had completed his review of voter depositions. While his case-by-case assessment of depositions resulted in a net loss of some 20 votes from Vo’s 33-vote election victory, his informal rulings would not have reversed the outcome.
So it is significant that when Hartnett returned from the break on Friday morning, he advised the parties that he was attempting to contact the chair and vice-chair of the special legislative committee in charge of hearing the challenge. Only a few minutes later, Harnett called another quick break.
When Hartnett returned from the second break Friday morning, he announced that he had just taken the second phone call verifying that both the chair and vice-chair of the committee would endorse his intention to rely strictly on deposition testimony and consider only those votes that were improperly cast and where the identity of the candidate was specified.
Hartnett spent the rest of the day collecting information on the total number of illegal votes cast and listening to an argument that the effect of the total illegal ballots could be extrapolated. While he said he would forward those raw materials to his colleagues in the Texas House, the Master of Discovery said he would not put any weight on those matters in formal recommendations that he says will be reported one week from Monday.
Of course, it is possible that Hartnett will change his mind about many things in the coming week as he considers one last round of briefs due by Monday afternoon. And it is possible that when the vote goes to the floor of the legislature, Hartnett’s recommendations will not be decisive. But preliminary signs show that after a very close election victory, recount, and legislative challenge, Vo will be allowed to make history as the first Vietnamese immigrant to serve in the Texas legislature and the first Democrat to represent an increase in that party’s representation at the statehouse since the 1970s.
Also, the House may vote to side with the challenger under the argument that the total number of illegal votes exceeds the margin of electoral victory, and Hartnett has said he will present his best estimate of that total, which may exceed 100. But Vo attorney Larry Veselka argues that the large number of “undervotes” characteristic of the “down ballot” race, prevents an assumption that any number of illegal ballots would have affected this race. A deposition would be needed from every illegal voter to find out whether they voted in the race and who they voted for. Hartnett agrees.
If legislators agree to throw out an election, because the total number of illegal ballots exceeds the margin of victory, they would ensure themselves a robust future of election challenges in any close race. As hearings in this case have amply demonstrated, since election days are fraught with some number of illegal votes, it may not be that difficult to identify hundreds in any given case.
While an attorney for the challenger has argued that illegal votes made the difference in this race, the argument depends upon an assumption that more illegal votes would be cast on one side rather than another. But on what basis does one make the case that Vo votes are substantially more illegal than others? This is where suspicions arise that some amount of racism may be involved in this election challenge.
The challenger notes that voting margins switch sides when early ballots are compared to election-day votes. The challenger won the early vote, but lost on election day. The challenger intensifies the racism of his allegation against Vo voters when he alleges that the best account for the election-day reversal depends upon illegal voting. It is an allegation that leaps over other possible accounts of election day turnout to criminalize Vo voters who largely represent the “South side” of the district. In this case, it is the challenger who replicates longstanding cultural patterns, where “North side” folks exhibit malicious attitudes toward southsiders.
The provocative nature of the challenger’s campaign was illustrated Friday afternoon when, under questioning from Hartnett, the challenger’s lead attorney backed down from his public allegations of massive voter fraud. In fact, said the attorney, he didn’t even TRY to substantiate that allegation. Observers are warranted in concluding that when Northside lawyers accuse Southside people of massive fraud and then don’t even try to back up their allegation, that the only evidence in play is stereotype.
While some voters may have voted twice, including a voter who went for the challenger, the only other pattern of possible election fraud was found by Hartnett during the hearing itself. In about four or five cases, Vo voters had been “deported” to another House district by means of forged voter registrations that changed their addresses, despite the fact that they never moved.
One other pattern of irregularity was also detected by the hawk-eyed Hartnett. Deposition questionnaires had been returned by the challenger with two sets of ink and two styles of handwriting. Some questions, it would appear, had not actually been completed by the voter. What Hartnett will do with this discovery remains to be seen, but it would make a fine reason for the challenger to gracefully close this process within the week.
Desperation of the challenger was also painfully revealed in so-called expert testimony from a Republican pollster who said that the results of the depositions could be extrapolated into a statistical trend. Suppose you went to a pollster and said, I have contacted 500 Texans and asked them what they think, can you tell me what this says about all Texans? And then suppose the pollster said, without any further questions, oh this is easy, you simply multiply your known numbers by an amount that will give you the total voting population. The pollster would be put our of business for this kind of behavior, yet that is exactly how he suggested one should handle the known pattern of illegal votes, simply multiply them to the total. This is “junk science” indeed. Hartnett admitted the testimony, but the cum laude Harvard graduate said he will give it no weight.
View Hartnett taking note of the differences in ink and handwriting in depositions submitted by challenger at video of Friday morning’s hearing at 1:26:30 – 1:31:40 and 1:35:00 – 1:38:10.