Documentary Irregularities and Why they Matter
in the Houston Election Challenge
By Greg Moses
It’s not the first time I’ve occupied a room filled with state documents in Texas, but it is the first time that I’ve been treated to full-time surveillance while I thumb through everything, and actually I’m kind of happy about this. The chaperones have been altogether polite and quiet. And the surveillance itself is the best sign the state could send me that I’m probably taking notes on the right documents Tuesday.
The most significant section of this ten-foot row of notebooks set up in front of me is a group of original depositions taken from Houston-area residents who were accused of stray voting in the November election when they cast ballots in the district that elected Vietnamese immigrant Hubert Vo to the state house.
Page after page of these depositions tell mundane stories of voters who once moved from Houston to Sugar Land but who didn’t keep up with their paperwork, went back to Houston to vote, and then two months later got their doors knocked on by people with pens, carrying threatening documents that said in dandy legal language, you better answer these questions or we’ll throw you in jail: Where do you really live and who did you vote for?
“Told us not to come back,” is the pointed note that one process server makes on threatening documents that were intended for delivery to a voter in Katy, Texas at 4:30 p.m. on New Years Day. Since she told them to get lost, and refused to incriminate herself as a voter who crossed back to her old neighborhood on election day, attorneys went to work on her file. They showed that according to the tax district she owned the home in Katy and that according to Mapquest the home was 6.58 miles away from the elementary school where she voted. And of course they had a copy of her signature at the voting place and a copy of the statement of residence that she was asked to fill out there. Two days before the hearing, they went back and got their deposition from her, too. In the end, she never gave a clear answer about who she voted for.
This is the kind of thing you see over and over again, the kind of thing that put everyone to sleep during two days of public hearings that failed to overturn the election. Time after time, dedicated voters got caught failing to keep their registrations in order, and people just dozed off. So the hearing room was pretty much cleared out by the morning of Jan. 28 when Master of Discovery Will Hartnett (R-Dallas) sat silently looking at the deposition of a citizen from Fresno, Texas.
“Um, I’m just going to point this out, I don’t know what to make of it, but this one has different ink and maybe different handwriting. I’m no handwriting expert but I think the parties should look at this. It definitely has two different pens on it, and I don’t know the handwriting is hard to tell, you all just need to look at this.”
At which point (1:26:31 into the Friday morning broadcast archived online) Republican attorney Andy* Taylor walks briskly to the Master, retrieves Ms. Wyatt’s deposition, and flips the pages dramatically.
“I’d just suggest contestee look at it to see if there’s any possible irregularities,” says Hartnett, index finger on chin. “The main answer appears to be in the same ink as the person’s name, so that’s my primary interest, but it’s just odd, it looks that the N/As (indicating that a question is not applicable) are in a different pen. But you all can look at that later if you want, I’m just pointing it out.”
By this time, attorney Larry Veselka (representing contestee Hubert Vo) is saying that the N/As are indeed in different ink, different handwriting, and appear to match certain other N/As found on other depositions that have been turned in only days before the hearing. Meanwhile Republican attorney Taylor is huddling with his client, the deposed incumbent, saying something very close to his ear.
My own notes from reviewing the deposition in question on Tuesday suggest that the N/As are not in the flowing cursive style that the voter uses for the rest of her answers. And her signature is written in the same ink that the server of the deposition uses to write his own name.
“We really need a brighter light to look at it,” said Hartnett on the day of the hearing.
“Yeah,” said Veselka, pointing out that the deposition had been signed Jan. 21, less than a week before the hearing, and six days after the close of the discovery period, Jan. 15.
The very next deposition taken up on Jan. 28 by Hartnett also had N/As that Hartnett and Veselka agreed fit a pattern of looking more like each other than the handwriting of the voters in question.
My notes show that there are at least two more depositions with N/A look-alikes submitted into the record on Feb. 1, the Tuesday after the hearing ended, along with another deposition that has two colors of ink.
I also found in the batch of Feb. 1, two returns of service, both dated 9:30 a.m. Jan. 26 and signed by the same voter. The most likely explanation would be that the voter was served with two subpoenas at once. But why was one service receipt printed on a fax machine while another was not? And why were two subpoenas needed?
I ponder the puzzles of these documents, their careful protection, and their lack of public attention as I walk out of the state building past television trucks that are set up for live shots on the evening news. I know what they won’t be reporting again.
For example, they won’t be reporting the deposition of one 49-year-old Houston voter who I will name with the initials MP. Somehow MP’s deposition didn’t make the final list, and my guess is that the case was dropped like a hot potato because MP testified with such clarity that the Republican attorneys did not want to discuss the deposition in public.
But in order to get in the mood for MP’s deposition you have to first read the subpoena that like all the others is signed by Republican attorney Andy Taylor and commands: “HEREIN, FAIL NOT, but have you then and there before me, at said time and place this writ, with your return thereon, showing you have executed the same.”
And next you have to read the Jan. 11 letter from Hartnett that says, “If you do not cooperate, I, working under the jurisdiction of the Select Committee on Election Contests, have the power to cause you to be taken into custody by law enforcement, and held until you answer the requested questions.”
And then you have to read how you are ordered to appear at your own home at 5:00 p.m. on Jan. 15 (the last day of discovery) to submit your answers in writing to the questions that have been handed to you. Now you are ready to read MP:
Question 12: “Has anyone ever tried to intimidate you in any way or accuse you of breaking the law when asking you about voting in the Nov. 2, 2004 general election?”
MP: “Not until I got this notice from Mr. Heflin” (the deposed Republican incumbent who demanded this election contest).
Question 13: “What did they say or do to you?”
MP: “It seems like I’m accused for cheating. I don’t think I did anything wrong on that day. I went to vote as one of my duties as an American to support the country. I feel sad to fill out this paper. Those candidates are not pur
suing their career for the cou
ntry but for their own fame and money? How sad it is!” And just to make clear how she feels about her candidate, she answers elsewhere: “I’m glad I did vote for Mr. Hubert Vo.”
Intimidation is what MP calls the election contest, and that experience of intimidation is what makes irregularities in ink color and handwriting vibrant issues for all of us. If the law is serious about calling voters to account for their irregularities, it should be just as serious about the irregularities that crop up wherever voters are pursued. If we are entitled to fair elections, we are also entitled to fair election contests. Which is why I am pleased to be watched every minute that I handle the sacred depositions of the voters from House District 149. And why I look forward to returning once again to hear the stories they tell…
Note: Frist reference to Andy Taylor corrected 2/17–gm