Author: mopress

By Greg Moses

ILCA Online / IndyMedia Houston , North Texas, Austin

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.

http://www.tlc.state.tx.us/legal/elec_contests.html

Hubert Vo Election Challenge Hearing:
An Abridged Transcript
Evening of Jan. 28, 2005
John H. Reagan Building, Austin, TX

Master of Inquiry Will Hartnett (R-Dallas): Where do we stand on evidence that could be categorized as evidence of fraud or evidence of non-fraud?

Andy Taylor, Attorney for the Challenger: One area that has come out as troubling in the past few days is there seems to be some pattern involving the registration of voters without their consent or knowledge or approval in House Dist. 137 (NOT Vo’s District) for whatever purpose I know not. But we’ve seen that over and over and over again as we’ve gone through these pieces of paper. So, one possible area of fraud that the local District Attorney in Harris County may wish to consider is just exactly what was going on in those instances. That’s number one.

Hartnett: And that’s about four or five votes?

Taylor: I think so.

Hartnett: OK?

* * *

Taylor: In fact, we were able to prove through one voter under oath, that she had voted twice. We were able to demonstrate several other voters voted more than once.

I’m not here to state or speculate what was in the mind of any of these voters. I do not know. And I want to make it very clear that the purpose of this election contest is not to determine if voters broke laws with criminal intent. The purpose of this proceeding is merely to determine if ballots were cast illegally. And illegally is a word that can be misunderstood. Under the election code, in the election contest context, illegal means not eligible to be counted. We did not seek any discovery from any of the 268 questionable ballots that we alleged as we started this hearing, no evidence was sought by us as to whether these illegal votes were done knowingly or in violation of any penal statute. That’s not our purpose, that’s not our burden. And we suggest that would be in the jurisdiction of others such as the local District Attorney in the county where the activities transpired.

So hopefully I’ve been clear that we have uncovered facts which are deeply troubling in specific instances as we have talked about over the past two days, but we’re not here to say that any criminal laws have been broken.

* * *

Taylor: In fact I think it would have been counterproductive, because had I asked questions that sought to elicit responses that penal code violations criminal laws had been broken, then there might very well be some immunity issues that would have to be worked out. There might be some self-incrimination privileges that might attach, and we might actually find ourselves in a situation where voters did not have the ability to answer my questions for fear that they might incriminate themselves in a court or in any kind of criminal sanctions situation.

Hartnett: It could have hampered this process.

Taylor: Absolutely.

* * *

Hartnett: A final question. And so the total number of votes for which we arguably have or may have evidence that fraud was associated with is approximately 15 votes?

Taylor: I’m not sure I can put a number on it, and I actually would rather not even say as to the numbers that we found that evidence is troubling that that constitutes anything more than an ineligible vote that cannot be counted or an eligible vote that shouldn’t have been discarded. I would rather not state on the record any opinion about whether or not any of these fact patterns go beyond civil election code violations and go to a higher level of criminal consequence. With the master’s permission I would simply not answer that question because frankly I don’t know.

Hartnett: Well, you’ve pleaded fraud, and so that’s why I have to ask, because this is a very serious allegation, so for the members of the house, I think that is something that would rise to extremely high level of concern. For their benefit, I have to somehow be able to quantify, because they are going to ask me where are intentional misdeeds in attempting to thwart the election as compared to innocent or inadvertent or sloppy election law violations.

Taylor: I understand your question, let me try to answer that and I’ll be done. First of all, I’ve been speaking in terms of whether or not criminal statutes have been broken. When I use the word fraud, I’m not talking about breaking criminal law. That was never my intention when I filed the election contest and said we had found deeply disturbing evidence of voter fraud and other irregularities. So I was not intending ever to say that penal statutes had been violated. Having said that, let me get to your question.

I think that the areas where there is a very significant concern are the ones in which voter registration applications have been forged by others and where people have voted more than once.

Hartnett: Fifteen votes.

Taylor: Yes, approximately a dozen or so fact patterns that cause us that concern.

* * *

Hartnett: So besides those two fact patterns you have not presented any evidence of fraudulent conduct by any person in this case.

Taylor: I have not even tried to, because I don’t know what was in the minds of the voters. That’s right, Master Hartnett.

Hartnett: Okay, thanks very much. Do you want to respond?

Larry Veselka, Attorney for Hubert Vo: I just want to say, is contestant Heflin withdrawing his pleadings of fraud or at least limiting his pleadings of fraud to the instances of accusations of double voting or in instances where there may have been some evidence or finding by the Master of fraudulent re-registration of somebody outside their precincts.

Hartnett: I don’t think he’s filed that amendment, but if you’ve got anything to say Mr. Taylor.

Taylor: I stand on what I just said.

Hartnett: OK

Veselka: I just want to say that a double vote that was found was for Heflin, and the fraudulent re-registrations were issues where there were African American votes being pulled away that they were trying to preclude from being counted here. So I don’t want to spend a whole bunch of time, but in a potentially political audience which I address I believe fervently that both sides want an accurate and fair hearing here, but there’s some concern about crocodile tears at this time after what all’s gone on over the last three months to claiming that. ‘oh, how did anybody ever think we were talking about fraud?’ I just feel that that needs to be said for the audience that hears it there.

We believe, as we have said all along, that this is a fair election. We believe that there are people that make mistakes, they get busy, and they don’t always complete all their paperwork right. And we have election judges that don’t do it all right. And they get confused on the technicalities and some of them have been doing it one way for 20 years and the laws change or the forms change, or the provisional ballots change, and they don’t always get all the new training. They’re making a great effort, they’ve all made a great effort, the people that are involved in this….

* * *

Taylor: I would like to make one last comment base on what was just stated. I’m very proud of the fact that we went as vigorously for illegal votes that were cast for my client as we did for ones that were cast for Mr. Hubert Vo. One of the double voters voted for my client, and I brought that evidence to you. I also, because I don’t know how people voted, I didn’t screen them and selectively go after them.

Co-counsel for Hubert Vo, Richard E. Gra
y, leans forward and clears his throat.

Taylor: I didn’t ask voters the question who didn’t want to answer the question, and guess what, the answers I got, illegal votes for my client. And you know I’m proud of that.

Master Hartnett says uh-huh.

Taylor then talks about one voter who was identified for questioning by the Vo team but who was not reached in time to meet the deadline for discovery, so Taylor took it upon himself to secure the deposition after the deadline passed. And although the deposition showed the voter had NOT voted for Vo in the first place, Taylor brought in the deposition anyway. He wonders if Vo’s attorneys would have done the same?

Veselka: There was an accusation there that we’re not following the rules in this proceeding. And I think the record is pretty clear who has followed the rules and who has followed the deadlines and who has not.

The true outcome of the election was for Hubert Vo.

Is the record closed?

Hartnett: The record is closed.