As the Evidence Turns: An Election Contest Merry-Go-Round

By Greg Moses

SaveTexasReps / ILCA Online /
Indymedia Austin / Houston / North Texas / L.A.

The three-ring binder known as the Bettencourt Audit is as thick from cover to cover as my middle finger is long from tip to knuckle. Named after Harris County Voter Registrar Paul Bettencourt, the elected Republican official whose office put it together, the audit contains 167 cases of alleged illegal voting in the contested race for Houston’s House District 149. On Dec. 20, 2004, it was handed over to the Harris County District Attorney.

Although officials say the Bettencourt Audit was nothing but a routine report, no different from any post-election review of voting irregularities, questions about the audit remain. For one thing, it is not yet clear that any other report from the Harris County Voter Registrar has ever targeted voters in a specific election contest. For another thing, it is not clear how the Republican Voter Registrar for Harris County decided to produce an accelerated report that would be turned over to the District Attorney in time to have influence in an ongoing election contest.

Questions about the Bettencourt Audit remain important if one follows the claim of Republican attorney Andy Taylor, who repeatedly argued that, “every Texan has an interest in the outcome of this race.” Not only does every voter have an interest in the outcome of election contests, but every voter has an interest in the way evidence is gathered when one party to an election contest charges publicly that the race was stolen by illegal votes. Should a partisan allegation of widespread illegality be considered enough to activate collection of evidence by a Voter Registrar who then turns over that evidence to the local District Attorney?

In the context of an election contest, the precedent of the Bettencourt Audit raises serious questions that should be addressed before there is a next time. In effect, such a report by an official government agency makes it easier for partisan attorneys to target voters for subpoena during an election contest, even if the investigation shows that voters were not trying to deceive anyone when they returned to their old neighborhoods on election day.

According to the letter of transmittal from Bettencourt to the Harris County D.A., the ‘review of election materials’ from Texas House District 149 was conducted pursuant to Texas Election Code 15.028, which reads as follows: “If the registrar determines that a person who is not a registered voter voted in an election, the registrar shall execute and deliver to the county or district attorney having jurisdiction in the territory covered by the election an affidavit stating the relevant facts.”

As a result of his review of precincts in House District 149, Bettencourt says in the cover memo that he found four voters not registered; two cancelled registrations; five registrations cancelled out of county after the election from provisional ballots; 139 voter registrations cancelled out of county after reviewing statements of residency filed by voters; one voter registration cancelled for lack of citizenship; and 16 voters who went to the wrong precinct. That’s how 167 illegal votes were identified by Bettencourt on Dec. 20.

No indictments came from the Bettencourt Audit, although the D.A.’s Division Chief for Public Integrity Donna Goode says that she and her investigator did treat the book seriously. ”Most election code violations aren’t what they appear to be,” says Goode via telephone from her Houston office. “The voters didn’t do anything deceptive.” The version of the book that was archived in the election contest by Republican attorney Andy Taylor contains mostly photocopies of Statements Of Residency (SOR) filled out on election day by voters who had moved away from Harris County, but who returned there to vote. However, some forty names appear to be missing from the archived version.

”Both sides already have it,” said Taylor on Jan. 27, 2005 as he introduced the hefty sheaf of papers into evidence during the opening hours of the legislative hearing. Democrat attorney Larry Veselka objected that the report had some errors in it, that it contradicted in some places the findings of Republican attorneys, and that it offered lots of redundant material. But legislative Master of Discovery Will Hartnett (R-Dallas) accepted the materials as Heflin Exhibit 283. As a public record subject to impeachment, as a snapshot of a certain date, and as an analysis conducted by the Harris County Voter Registrar, Hartnett ruled that the documents had some relevance worth considering.

Veselka was correct to notice that the Bettencourt Audit contained a substantial amount of “redundant” evidence gathered against the voters of House District 149. Of the 167 voters named in the report, at least 125 would find themselves listed in the final report of the legislative challenge, at least 90 would eventually be served with subpoenas to reveal their votes, and of those, at least 73 would see their votes deducted from the election. In the end, 31 voters from the Bettencourt Audit would see their ballots subtracted from Republican Talmadge Heflin. And another 42 voters would see their votes taken away from Democrat Hubert Vo, winner of the original election, the recount, and the legislative challenge. So we might say the Bettencourt Audit changed history by taking at least eleven votes away from Hubert Vo. No biggie, perhaps.

Director of Voter Registration for the Harris County Tax Collector’s Office George Hammerlein explained via telephone on Mar. 7 that the Bettencourt Audit should be considered as no different than any “poll book audit” that is routinely conducted after every “major election” and that a countywide review is still underway. To get an idea about how “routine” was the referral to the District Attorney’s Office of 167 voters in a single election contest, the Texas Civil Rights Review has filed an Open Record Request with Hammerlein, asking for copies of cover memos from other “poll book audits” that have been similarly forwarded for prosecution since 2000. We will post the results of that request when they become available.

Hammerlein explains also that special attention paid to HD 149 voters was prompted partly by phone calls “from both campaigns” looking for information about particular voters and partly by a request from Master of Discovery Will Hartnett (R-Dallas) who, according to Hammerlein, said he would “appreciate you frontloading the research” for the race. [We have been unable to confirm that claim with Hartnett, who said in an email of March 10 that he first heard of the audit after it was issued. Hartnett also said he thinks the audit was part of Bettencourt’s duties and served a helpful purpose.] Meanwhile, says Hammerlein, “we probably won’t segment anything else.” In other words, only the voters of House District 149 will be getting special treatment from their Voter Registrar’s office this year.

Comparing names from the Bettencourt Audit with names that made the final report in the legislative election contest, it appears that Republican attorneys did much better scoring hits with illegal voters when using names matched to the Bettencourt Audit than when using names that fell outside the audit’s list. Out of a total of 268 ‘problematic’ voters listed in the final report of the legislative c
hallenge, 68 were ruled legal by M
aster Hartnett. That’s a 25 percent miss rate. But among 125 names that were imported into the hearing from the Bettencourt audit, there were only nine legal voters found. That leaves 59 legal voters among the 143 names that still remain outside the Bettencourt Audit, a miss rate of 41 percent.

Chasing down illegal voters in the race for House District 149 was a very sloppy business when not assisted by the Voter Registrar’s own audit. The list may have had flaws and at times contradicted the Republican case, as Democrat attorney Veselka warned, but it was a list not nearly as flawed or contradictory as the one that attorneys generated all by themselves. Careful consideration of the Bettencourt Audit yields the interesting conclusion that the further attorneys strayed from it, the more desperate their search came to be.

Once again, we make reference to the “deportation” of District 149 voters into another district. Two voters who were victim to this scheme filed provisional ballots that clearly explained they were victims of a scheme, and those ballots were accepted by Harris County voting authorities. Yet along comes Andy Taylor who scoops these voters up into his net of alleged illegal voters, along with plainly written evidence that they were victims of unknown others, not perpetrators of voter fraud.

As we have reported, Hartnett called up at least one of these voters at home and ruled they were legal voters. But why did things get that far in the first place? The version of the audit that Taylor placed into the record does not include these names, although Taylor’s argument during the hearing indicates that one of the voters may have been flagged as not registered, leading investigators to the spouse.

How else were voters identified for pursuit? I find three other examples where one spouse is identified in the Bettencourt audit, but both spouses end up in the final report. Two of the couples in question are identified through depositions as Vo households. The third couple was not deposed. So this is one way that subpoenas might be served next time this sort of thing is done. Attorneys can just match spouses to voters flagged by the Voter Registrar.

Cautionary evidence regarding the relationship between the Voter Registrar’s Office and partisan attorneys also comes from two cases where attorneys affected official records while the election contest was underway.

Consider the case of a voter who turned 18 last Sept. On Oct. 3 she filled out her first-ever voter registration and mailed it the next day, forgetting to check the citizenship box. On Oct. 17, she filled out another form, and again forgot the citizenship box. Finally, on election day, she got the form filled out right and her vote was accepted. During the legislative hearing, attorney Taylor said that the Bettencourt Audit had flagged the voter as not registered (although the pertinent pages appear to be missing from the report we viewed at the archives.) Yet in public records posted by the Voter Registrar’s Office on Jan. 9, the voter continued to be listed as eligible.

Attorney Veselka introduced the public record from the Harris County Voter Registrar’s web page dated Jan. 9, 2005 showing that our first-time voter was considered registered as of Oct. 31, just in time to vote.

”Okay, so how does contestant respond to that?” Master Hartnett asked Taylor during the afternoon hearing of Jan. 27.

”They updated their records,” explained attorney Taylor. “We demonstrated that [the voter] was not registered to vote.”

The debate about the voter went back and forth for twenty-five minutes, much to the amusement of Hartnett, who is caught grinning from ear to ear as he listens to Taylor explain the fine points of the ten-day rule or “relation back doctrine” which must be strictly interpreted to dis-allow the voter’s late attempt to re-register in time for the election. But the important admission had already been made for the record. Taylor told Hartnett flat out that Republican attorneys “demonstrated” to the Voter Registrar’s Office that the voter should be considered illegal.

Said Democrat attorney Larry Veselka, the Bettencourt records of Jan. 9 showed that the voter was effectively registered. “And but for them [the Republican attorneys] going back for this proceeding and trying to get records changed, it would still be that way.”

Sometime between Jan. 9 and Jan. 26, the online records were changed to reflect new effective dates for her voter registration. A voter registration that on Jan. 9 (three weeks after the Bettencourt review) had been listed effective as of Oct. 31, 2004 was by Jan. 26 changed to reflect an effective date of Nov. 24. That vote was eventually deducted from the Vo column by Master Hartnett. Two phone calls were not able to reach the voter, and I doubt I will try again.

In another case of changing records, a 24-year-old woman registered to vote on Sept. 21, 2003. According to notes that I took at the archives, she filled out a “new registration” with her name and address, but failed to check the citizenship box. In August 2004 (why the eleven month gap?) she was notified by mail to complete her registration, so she sent it in again, forgetting once more to check the citizenship box, which had been moved outside the form field containing all other questions. Finally on Oct. 22 she got the box checked properly and she voted on election day 2004.

A Dec. 7 record from the Voter Registrar’s online database showed the voter registered as of Jan. 1, 2004. ”This is a muddle,” complained Hartnett, as attorney Taylor explained that he was simply looking at a “photograph of facts prior to rejection of the registration.” Taylor encouraged Hartnett to focus on the significance of the rejection letter of August. But on Dec. 7 the voter was still listed as registered. ”Maybe they have updated their records,” added Taylor as he walked casually to the Master’s bench and handed over a Jan. 26 printout showing an effective registration date, not of Jan. 1, but of Nov. 12, not eleven months prior to the election, but ten days too late. At which point Hartnett could not suppress a laugh. Said Taylor quietly, “I think I said yesterday that Mr. Bettencourt’s office constantly updates his records.” To which Hartnett responded without looking up, “Sure!.” And Veselka quipped, “Particularly as it pertains to this race!” In the end, Taylor succeeded in having the vote deducted from the Vo total.

After a couple of phone calls to the voter’s house, I can tell you that she is not much interested in talking about all this. And I’m probably not going to try again. But it is interesting to see how a voter can submit at least three registrations prior to election day, be listed in good standing in early December, and then see her records “updated” by the Voter Registrar’s Office during the course of a legislative contest.

Here we have two young voters, both women, who filled out three consecutive registrations each, who were allowed to vote, and who were at one point officially listed as registered on election day. Both women saw their voter registration records changed by the Voter Registrar and their votes deducted from the Vo column. The plain explanation for this is the one offered by Republican attorney Andy Taylor during live broadcast, that his partisan team of advocates was allowed to “demonstrate” the fine-print technicalities of these cases to the Voter Registrar while an election contest was underway.

As for serious questions that should be asked about the existence of the Bettencourt Audit in the first place, we’ll wait to see the history of materials routinely given to the Harris County District Attorney by the Voter Registrar. For our part, the matter of the Bettencourt Audit is a case not yet closed.

“I feel like I’m on a merry-go-round!” declared Hartnett as he considered the shifting evidence of a voter whose

records passed from legal to illegal during the month of January. That merry-go-round is the one that spins us all a little too quickly whenever the distinction between partisan advocate and official record-keeper gets blurred during the course of an election contest. The Bettencourt Audit and the shifting records of the Bettencourt database are signs of a merry-go-round between partisans and officials that should not be spun in times of election contest. To paraphrase “Sheriff” Andy Taylor, “every voter has an interest in this.”

The above story includes passages from a previous article entitled “Notes from the Bettencourt Audit”, adds information from telephone interviews, and attempts to sharpen questions important to the Texas Civil Rights Review. Several revisions posted on March 8 update details and issues in two cases of voter records that were changed during the election contest for Texas House District 149. In those cases, the account has been augmented by review of the archived broadcast of the hearing. Furthermore, all numbers assessing the impact of the Bettencourt Audit on the final legislative report should be considered both preliminary and low, since there were about 40 names missing from the copy of the Bettencourt Audit that we examined in archives. For the same reason, any assumptions about names missing from the Bettencourt Audit must also be discounted pending review of a fuller record.

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