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Voters Win Election, But Have They Also Lost Some Rights?

Selected as top story for State News at Harvey Kronberg’s Quorum Report, Feb. 10.

Hartnett Moves Forward with Questions about Democratic Voter Registrations, Holds Back On Issues Concerning Republican Attorneys

A Texas Civil Rights Review Editorial
By Greg Moses

ILCA Online

The two months of discovery in this case show that very little about the November 2004 election in District 149 has not been examined. If anything, this contest has pulled back the carpet and allowed the master, the parties, and the Select Committee to sweep away the dust to allow an in-depth examination of the problems of conducting a modern election in a mobile urban society, while guaranteeing access to the ballot box for all and ensuring the integrity of elections. (p. 16)
–excerpt from report of Master of Discovery Will Hartnett in the Vo election contest

Master of Discovery Will Hartnett (R-Dallas) ruled Monday that after two months of thorough investigation, facts show that Hubert Vo still wins his election by 16 votes [we predicted 13].

Within hours of the report’s release, Talmadge Heflin withdrew his challenge, reports Kristen Mack of the Houston Chronicle.

While Hartnett did a great job protecting Vo’s right to a fair hearing, we wonder if voters’ rights have been equally well served. In particular, we are concerned about Hartnett’s efforts to minimize troubling practices of Republican attorneys who pursued this elusive contest for too long in too many questionable ways.

While Hartnett had no qualms forwarding some findings for further investigation, he confines other issues to footnotes, to be held in fine print so long as the Vo victory stands. But why are some issues worthy of further investigation right away, while other issues are either ignored or buried in dependent clauses? The answer seems to depend on whether the possible wrongdoing concerns Democratic voters or Republican attorneys.

To begin with the matter of Democratic voters, Hartnett writes that voters with Nigerian surnames were re-registered without their knowledge into a nearby house district that featured a candidate of Nigerian heritage. To his credit, Hartnett refused to rule that the voters had cast illegal ballots when they voted at home, despite the fact that their registrations were in technical violation of election laws.

It is also to Hartnett’s credit that he forwarded evidence concerning the attempted “deportation” of these voters for further investigation by the Harris County District Attorney and Voter Registrar.

But in matters concerning the actions of Republican attorneys, the Master acted less aggressively. He ignored completely his own significant observations that written depositions submitted by Republican attorneys had been apparently “assisted” and that official voter rolls had been “adjusted” as a direct consequence of Republican pressure on the Voter Registrar’s office. Why did Hartnett not encourage further investigation on these issues as well?

Furthermore, in a footnote discussion about professional ethics, Hartnett noted that Republican attorneys bore ethical responsibility for tapes of alleged illegal voters that had been recorded by a polling firm without first informing people that they were being recorded. While the practice of recording conversations without permission is not illegal in Texas, it may be an unethical practice for attorneys. And since the poll was conducted at the request of attorneys, Hartnett concedes in a footnote that the issue might be worth re-visiting in the event that the tapes would be used politically to support findings of a Vo defeat. But what about the outcome of the process makes the tape recordings more or less ethical? And why didn’t Hartnett refer this possibly unethical practice for further investigation?

On the question of voter records adjusted during the course of investigation, Hartnett ruled that in some cases the Harris County Voter Registrar had mistakenly affirmed a voter’s legality and had therefore correctly removed the voter following meetings with Republican lawyers. It remains to be seen, however, if every change in voter records secured by Republican attorneys during the challenge was sustained by the Master. And an important question remains open in any case: is it proper for partisan attorneys in an election contest to be affecting the legal status of voters while the contest is underway?

As for depositions on which Hartnett noticed at least two colors of ink and two kinds of handwriting, not a word about this appears in the Master’s record. Hartnett does mention in a footnote that some depositions were alleged by Vo attorneys to have come in after the discovery deadline. Because the report finds in Vo’s favor, Hartnett holds that alleged violations of discovery rules would have no relevance. For Hartnett, the matter of late depositions might become relevant again only if Vo’s election were overturned. But since the tardy depositions also included the irregular answers, the issue seems to remain safely buried so long as the Vo victory stands.

Again, on the question of depositions that were possibly forged in part, what about the practice of submitting forged evidence would not be illegal in the event that the evidence fails to produce its intended result? Doesn’t the very appearance of irregular depositions, submitted in an attempt to overturn an election, demand further investigation in its own right?

In a statement to the Houston Chronicle, Heflin attorney Andy Taylor said: “We made a political decision not to ask for the select committee to overrule Rep. Hartnett . . . I didn’t think that would be in the best interest of the parties or the House.”

Aside from the best interests of high-powered players in this drama, there are some citizens whose rights need tending, and they are the voters themselves. The process of this election investigation was offensive to voters and interfered with their rights in several ways: subjecting them to unauthorized taped conversations that were placed into public record, removing some voters from official rolls as a direct result of partisan influence, making public record and posting on the internet more than 260 names of suspected illegal voters along with many of their voting preferences, intruding on their right to cast secret ballots, and producing apparently forged evidence in an attempt to overturn an election.

The challenger in this election contest conducted his investigation under pre-text of looking for voter fraud, but then admitted that looking for fraud would have hampered his investigation. Now that the contest has been withdrawn for lack of merit, who will pursue the damage done to voters who were wrongfully bothered in wrongful ways?

We are very happy that Vo has finally been declared the winner, but we remain concerned about the damage done to voter rights in Houston, and we wonder if there is a nonpartisan authority that can properly defend them.

Link to the pdf file of Hartnett’s report

By mopress

Writer, Editor, Social Democrat

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