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With Republican lawyers checking a nearby room for files of new evidence Thursday, and a Texas Legislative Master of Inquiry saying that the legislature may take an interest in the “total number of illegal ballots” the election victory of Houston Representative Hubert Vo was narrowed but not overturned in the first day of a hearing that will continue into Friday.

Although official discovery period for the unusual legislative challenge ended on Jan. 15*, Republican attorneys produced 22 new depositions this week and in some cases held up the Thursday inquiry while they checked a nearby room to see if fresh depositions were there on file.

In the hearing that lasted until 7:30 Thursday evening, specially appointed Master of Inquiry for the election contest, Will Hartnett (R-Dallas) sifted through some 50 allegations of illegal voting, ruling informally that two of the cases were illegal ballots for the Republican challenger, while 12 were deducted from Vo’s side.

Those numbers were added to an initial roster of about 80 cases where lawyers for both sides agreed there were 36 illegal ballots cast for the Republican, 44 for Vo. At the end of the day a net 18 votes were deducted from Vo’s 33-vote election margin, narrowing the race, but not overturning it.

All rulings on Thursday were informal ones, with Harnett explaining his sense of the matter and inviting further arguments prior to his report which is expected next week.

Early in the day, Hartnett refused to admit tapes made by a polling firm hired to call alleged illegal voters and determine their vote. Vo attorney Larry Veselka of Houston argued that it would be difficult to authenticate the tapes and that often the questions were leading, with pollsters first asking: “Did you vote straight ticket Democrat?”

At one point in the hearing, Hartnett said the full report will go to the floor of the Texas House of Representatives. At that point, he warned, lawmakers may be interested in the total number of illegal ballots cast as they decide whether to seat Vo’s opponent or call a new election.

Note: *Date corrected.

Part One of final argument by the Mexican American Legal Defense and Educational Fund in the 2004 Texas school funding trial. Delivered on Sept. 15 by attorney David Hinojosa in the District Court of Judge John Dietz.

Your Honor, if it please the Court, “lost opportunities” are two simple and yet profound words to describe why our clients, the Edgewood intervenors, appear once again in court.

Lost opportunities for our clients to provide a quality education to each and every child in their district because of the inequity in funding between property poor and property rich districts.

Lost opportunities for our clients to provide a quality education to each and every limited English proficiency child in their district because of the insufficient weight and allotment provided for bilingual education.

Lost opportunities for our clients to provide a quality education to each and every poor child in their districts because of the insufficient weight and allotment provided for compensatory education.

Lost opportunities for our clients to provide a quality education to each and every child in their districts because of the inequitable and insufficient funding for facilities, forcing our districts to place their children in overcrowded, deteriorating and unsafe facilities.

And all of these lost opportunities lead to the most glaring, the most disheartening opportunities lost, and those are for our Texas children.

Lost opportunities for our children to succeed in school, to make the most of their abilities, and to learn in facilities that are safe and not overcrowded, ultimately lost opportunities to fully participate in the social, economic and educational opportunities that present themselves now and those that await them in the future.

Our clients ask for nothing more and our children deserve nothing less. And what our children deserve is exactly what our Constitution guarantees.

Is it too much to ask our great state of Texas for equal access, meaningful opportunities for each and every child, whether they’re rich or poor, black, white, Hispanic or whatever other race or ethnicity, whether the children live in Alamo Heights or in west side San Antonio, in Edgewood, in the downtown suburban district of Highland Park, or the
little town in the Valley known as Edcouch-Elsa.

Each and every child has a constitutional right to access meaningful opportunities. Yet the State defendants, whom we entrust to deliver these opportunities to our children are the very same ones who deny our children.

Your Honor, I would like to introduce some of our clients who were able to join us in court today, representatives of the Edgewood intervenors. And I would ask them to stand at this time.

I would also like to acknowledge our team of lawyers and staff who are present today. I won’t go through the names, because there’s kind of a long list here today.

And I would like to also acknowledge our attorneys from Meta, Jennie and Roger from Boston, who came down and joined us, and Leticia from UNLV, who aren’t present today but who committed their time and energy in our fight for justice, as well our intern, one of which we have here today, who continued to help even after their internship had expired.

So is the notion of equal access to meaning opportunities for each and every child simply an ambitious, unattainable goal? Well, if it is labeled as such, there can be no explanation for it, because our Constitution does not allow for it.

So how are they denying children access to opportunities? Now, that question was answered in this case, at least by a preponderance of the evidence. And I would submit to you that the evidence most likely even climbed the hurdles of being clear and convincing, without even needing to, of course, as our designated focus districts, who represented all of the 22 Edgewood intervenors, as agreed upon by the State, have exhibited.

How has the current system caused our children to lose opportunities because of the inequity in funding between the property poor and property rich districts?

Well, it’s by allowing the average property rich district, the Chapter 41 district, to be provided with more than at least $1009 per WADA, weighted average daily attendance — as we found out, which is slightly more than just one child — $1009 more than the average property poor district, that is, the Chapter 42 district. And how can that be?

All of the research, every single opinion offered in this case — save for one, and that was of an expert offered and paid for by the State, all of those opinions and the evidence offered in this case point to the fact that children in property poor districts should
receive more resources in order to bring them up to a level playing field.

The tax payers in the districts, both Chapter 41 and Chapter 42 districts, are paying the same tax rate, yet the average property rich district manages to take home at least $1009 more per WADA than the property poor district.

What this amounts to is $20,000 for a classroom of 20, at least $600,000 more for a campus of 600, and at least 5 million more for a district of 5,000 students.

All of that money going to property wealthy districts, those children who are lucky enough to live in that district’s boundaries, for those who live on the right side of tracks even in this day and age, to access $5 million more of opportunity to succeed in life.

And for those unlucky children living on the other side of the tracks, this gross disparity amounts $5 million of lost opportunities to succeed in life, even though the parents of those children are making the same tax efforts, paying the same tax rates as the parents who live on the other side.

And the evidence showed that $1009 of WADA difference resulted from a number of provisions. Those provisions include the hold harmless provisions that were promised to the Court in 1995 to be phased, but were instead phased in, phased up and written permanently into law.

They include the compensatory education set-asides, where a Chapter 41 district gets the full benefit of .2 weight for compensatory funds, while the property poor district must set aside 10 percent of their compensatory ed funds and therefore receive what amounts to only .18 weight for the property poor district.

It includes the Available School Fund allotment that operates with an effective bonus for Chapter districts but is lumped into the State aid received by Chapter districts.

It includes discounts on recapture, wherein Chapter 41 districts can benefit from entering into early agreements, agreements that they must enter into anyway, and they receive either 4 to 5 percent benefits on selecting one of the two recapture methods.

The Tier 2 guaranteed yield cap in which property poor districts are guaranteed up to an equalized wealth level of $271,400, but the wealthy district are able to take advantage of a wealth level of $305,000.

The Tier 1 guaranteed basic allotment gap.

Once again, the property poor districts are equalized for a basic allotment of up to 295,000 per WADA. Property wealthy districts are able to take advantage of a wealth level of 305,000.

Also the facility funding gap, in which property poor districts must tax at substantially higher rates to raise funds to pay for the same amount of bonds simply because of the substantially lower tax base, coupled with the limitations on State funding and the absence of recapture from the facility funding.

But the $1009 gap, that doesn’t tell the entire story. What was commonly referred to as $600 gap found by the 1995 Supreme Court in Edgewood IV has actually grown to $1670 per WADA.

Dr. Cortez used the same analysis performed by then State defendants’ witness, Lynn Moak. And in that analysis, it showed a projected gap in revenue of $631, when comparing the 5 percent of students in the wealthiest districts versus

the five percent of students in the
poorest districts.

Dr. Cortez’ analysis, undisputed analysis compared the 5 percent, once again. And the evidence shows that the equity gap has grown to almost 300 percent higher than the projected $600 gap back in 1995.

For classroom of 20 students, this translates to over 33,000 more for the children in the wealthiest districts. For a campus with 600, $4 million more, and for a district of 5,000 students, this translates to more than $8.3 million dollars for the children fortunate enough to be able to live in and attend the public schools in the wealthiest districts.

Even with similar tax efforts by the parents in each of the respective districts, the wealthy districts have access to over $8 million for their children.

The Honorable Paul Colbert also analyzed the equity gap looking at what is referred to as the actual gap. And he depicted a gap in favor of Chapter 41 districts in the amount of of $1,716 up to $1,868 per WADA in favor of the rich districts.

His alternative analysis confirms Dr. Cortez’ analysis. And even when you look at the State’s own witness, Dr. Joe Wisnoski, even after he manipulated the figures used by the Honorable Mr. Colbert, he offered evidence of an equity gap existing between an average of $929, but looking at maintenance and operations only — he didn’t even touch facilities in that analysis — in favor of wealthy districts over the poor.

He said nothing to discount the gap by Dr. Cortez. The State did not touch Dr. Cortez’ analysis or even attempt to address the analysis, even though it was the same analysis used by Mr. Moak for the State in 1995 and adopted by our Texas Supreme Court.

What does this equity gap mean to our property poor districts? It means that, despite similar tax efforts between taxpayers in the rich and poor districts, the wealthy districts are able to generate substantially more revenue, and greater revenue translates into greater opportunity for the children in the property rich districts.

The wealthy districts are better able to hire, recruit, train, develop and retain quality teachers. They’re able to hire more specialized support staff, including counselors, curriculum specialists.

They’re able to offer a broader and more rigorous curriculum, and even to provide far better opportunities to their students to achieve their potential and to fully participate in the social, economic and educational opportunities of our state and nation.

I am not saying that they’re able to provide what is required by our Constitution because of that equity gap. They just have more in their efforts to reach toward the meaningful opportunities.

So 15 years after Edgewood I was announced, proclaiming justice for property poor districts, the Edgewood intervenors stand before you once again because the equity gap still exists and, in fact, has grown to unconstitutional proportions. And who suffers? Who loses out on opportunities to succeed and to escape poverty?

It is our children who attend the public schools in the property poor school districts, such as those of the Edgewood intervenors, and at no choosing of their own, oftentimes at no choosing of their parents.

Mujeres Por La Raza Unida /
The Women of La Raza Unida
A Tribute to Women’s Involvement in Texas Politics

An exhibition currently on display at the Nettie Lee Benson Latin American Collection
March 23 through June 30, 2005

This exhibit presents the breadth of contributions that Mexican American women made to Texas politics and to the struggle for equal rights for Mexican Americans. It was inspired by the Women of Raza Unida Oral History Project, developed in conjunction with a graduate seminar directed by Dr. Emilio Zamora in the School of Information. The course was entitled “Memory, History and Oral Narratives: Mexican Americans in Politics in Texas History.” The exhibit includes archival materials from the Raza Unida Party Collection, Nettie Lee Benson Latin American Collection, as well as items and memorabilia from party members and quotations taken from oral history interviews.

Sponsored by the Center for Mexican American Studies and the Nettie Lee Benson Latin American Collection. Guest curators: Linda Ho and Brenda Sendejo, graduate students, Center for Mexican American Studies and Department of Anthropology, UT Austin.

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.