Thank you, ‘Mattress Mack’
Whether Harris County disenfranchised voters and skewed election results by running out of paper in November is debatable. So is the merit of mushrooming election challenges by losing Republicans. What’s not debatable? Texas open records laws, once heralded among the strongest in the nation, have been shamefully eroded over the years by lawmakers who seem to fear sunshine as much as they do a primary challenge.
That’s why we applaud Jim “Mattress Mack” McIngvale for bringing some attention to the public records scandal in this state, regardless of whether the election scandal he’s hoping for pans out or not.
You may not agree with McIngvale’s conservative politics, including his decision to bankroll Harris County Judge Lina Hidalgo’s Republican challenger, Alexandra del Moral Mealer, but set that aside for a minute and look at what he’s arguing in his lawsuit against the Harris County Elections Administrator’s office.
McIngvale accuses the agency of refusing to turn over records he requested relating to November’s midterm election problems. Hidalgo was quick to dismiss McIngvale’s lawsuit this week as politically motivated, which it may very well be, but pure intentions aren’t a qualification to access public information.
Somehow, though, Hidalgo has also concluded that Mattress Mack’s request for records is hurting democracy.
“We’ve got now the mattress guy attempting to sow doubt in the election with a bogus lawsuit to prop up election denialism in order to — I don’t know what — finance his profits? Get some free press? Ultimately, those that are harmed are the residents of the county and the faith in our democratic process.”
Apparently still smarting from McIngvale’s endorsement of her opponent, Hidalgo took her latest swipe at the longtime Houston businessman and philanthropist, lumping him in with the denialism of Donald Trump and supporter Mike “MyPillow Guy” Lindell. While it’s true McIngvale took two months to call the 2020 election for Joe Biden and participated in the 2022 Texas Youth Summit along with election deniers such as U.S. Reps. Lauren Boebert and Troy Nehls, his concerns over ballot paper shortages and delays during the November election in Harris County are widely shared, including by this editorial board.
A report by the election office that was supposed to provide answers on how widespread the paper outages were and how many voters were turned away wasn’t a smoking gun, as we wrote, just smoky. It’s troubling that the county’s online tool measuring estimated wait times at polling places didn’t work and there seems to be no reliable system to keep track of problems and how they’re resolved. It’s unacceptable that the biggest county in Texas is adding fuel to mostly baseless claims on the right that our elections can’t be trusted. Democrats should be as frustrated about that as Republicans.
Mattress Mack’s request, submitted on his behalf by former sleuthing TV journalistturned-media consultant
Wayne Dolcefino, included texts, phone messages and emails for Elections Administrator Clifford Tatum, including correspondence with Precinct 1 Commissioner Rodney Ellis’ office, along with voting machine maintenance records, information about ballot paper, and communications between officials and judges overseeing polling locations.
The county says it turned over some information. The rest of the request? It met the familiar fate that Texas journalists know all too well when we try to access even benign information maintained by government entities — from the state to the local police department.
Harris County referred it to Texas Attorney General Ken Paxton’s office, seeking an opinion on whether it can claim “ongoing litigation” as an excuse to withhold the information from the prying eyes of the public.
Going to the AG used to be largely reserved for cases when requests raised security or privacy concerns. That’s because the presumption of the Texas Public Information Act has long been that public records are public property and most should be accessible to the owners.
Today, government agencies seem to consider it almost perfunctory to run to the AG to hide information, using a “competitive harm” excuse to withhold public contract information or a “policymaking” exception to shroud even routine personnel and administrative decisions. Exceptions for police and investigative information are even used to keep grieving parents from obtaining autopsies and other records on their children’s deaths.
A 2019 investigative report by the Chronicle’s Jeremy Blackman and ABC13 found that the number of requests to the AG from state and local agencies seeking to withhold public information nearly doubled in the past decade, reaching 32,000 in 2018. Nearly all are granted.
And while in the past, Texans could more or less count on former attorneys general from John Cornyn to Greg Abbott to be neutral arbiters in records disputes (Abbott was a little different in those days) today the office is run by the most unscrupulous state official in Texas: criminally indicted Ken Paxton, who appears to have violated the public records law himself when he was asked to turn over his communications from the day of the Jan. 6 Capitol insurrection. He, too, cited pending litigation as an excuse.
It’s bad enough that the exception is allowed under the law. It’s worse when officials try and portray it as a mandate.
Harris County elections officials seemed to suggest that honoring McIngvale’s request for documents was out of their hands: “the attorney general’s office has 45 working days from the day after the request to respond,” a statement read, adding that “any suggestion” that the office lacks transparency “is false.”
In truth, the agency had the option of transparency and chose obfuscation. The law doesn’t prohibit Harris County from turning over the records; it only gives public agencies discretion to argue for exceptions to disclosure, including the popular “litigation” excuse.
Bill Aleshire, an attorney with the Freedom of Information Foundation of Texas, argues the exception should be repealed.
“There is no justification for denying the public information about a controversy just because it involves litigation,” Aleshire told the Houston Chronicle. “In fact, when something controversial enough happens to be the subject of a lawsuit, that is exactly when the public most needs to know what the record shows.”
Indeed. Harris County is just one of many agencies engaging in cover-your-butt behavior enabled by the Legislature. Lawmakers, with the help of the Texas Supreme Court, have riddled the Texas Public Information Act with so many holes and escape hatches that the thing barely resembles the strong open government statutes that emerged after the Sharpstown stock fraud scandal in the 1970s.
Texans have a right to know what their government is doing, how their tax dollars are being spent, and yes, how their elections are being run. That right is under assault by lawmakers and by local officials happily exploiting the TPIA’s weakness.
No public information means no public accountability. That is a true threat to our democracy.