Judge rules results of Bowie County race will stand

NEW BOSTON, Texas — While a visiting judge has ruled that the results of a contested Bowie County Commissioner’s Court race will stand, the March 3 primary was “fraught with errors, mistakes and failures to follow procedures set forth by the Texas Election Code.”

James Strain, incumbent for the Precinct 3 seat, won the race by seven or eight votes but as many as 20 votes previously counted are “in controversy,” according to the findings of fact and conclusions of law signed late Monday by 307th District Judge Tim Womack of Gregg County.

Challenger Kyle Barrett filed suit after local election officials declared Strain the winner in March following the election and a recount.

Womack’s findings provide a detailed look at the issues though he notes “the findings of fact this court issues below only partially demonstrate these oversights.”

Early Voting

There were two early voting locations for the primary in Bowie County; the Bowie County Courthouse in New Boston and the Bi-State Justice Building in Texarkana.

Womack’s findings point to “jamming” problems with an early voting machine in New Boston and an inexplicable duplication.

“On Feb. 28, her voting machine jammed and would no longer transfer ballots to the ballot box,” Womack’s findings state, referring to the election judge assigned to New Boston.

“At the instruction of the Election Administrator, she cut the seal on the ballot box, repaired the jam. According to her records, she re-sealed the machine with seal #: 0361823,” the findings state.

Later the same day, the machine jammed a second time and the election judge followed the same procedure including replacing the seal.

“On that same day, the election judge at the Texarkana early voting location certified that the final seal on his voting machine ballot box at the end of early voting was seal #0361823. No plausible explanation was provided the court as to how the same seal could be in two locations at the same time,” Womack’s findings state.

Mail-in Ballots

Womack notes that “no plausible explanation” was provided for discrepancies in the numbers of mail-in ballots provided by the Election Administrator’s Office on different reports reviewed by the court. Two documents provided by Election Administrator Pat McCoy’s office reported 572 mail-in ballots were returned in the Republican Primary though a “detail summary” shows only 560 mail-in ballots were cast in the Republican Primary.

“There were 16 mail-in ballots received by the Election Administrator’s Office on March 4, 2020. If these 16 are added to the 560 reported in the ‘detail summary’ there should have been 576 mailin ballots, not 572 as reported,” the findings state.

Breaking the election down to Precinct 3, Womack noted that one report reflects 138 mailin ballots were received while the “detail summary” reflects that 140 mail-in ballots were received.

Disenfranchised

Womack’s findings note that a “properly registered voter” was required to vote a provisional ballot, which was “erroneously” rejected by the Early Voting Ballot Board.

Hooks High School polling

The election judge assigned to oversee voting at Hooks High School submitted a “poll list” reporting 286 voters voted at the location on March 3. But records from the Election Administrator’s Office show 278 voters voted and the “poll book” for the location reflects 283 people signed in to vote.

“The court finds the numbers reported by the election judge at this location are erroneous,” the findings state.

Also noted for the Hooks location is the discovery of four Republican ballots in the Democratic primary box. Womack found two to six votes in controversy from this location.

DeKalb High School polling

Womack found the election judge at this location made “a number of errors in her reporting documents.”

The election judge reported 555 voters voted. The Election Administrator’s Office provided records showing 520 voters and other documentation showing the number at 530. The polling book reflects 521 voters signed in to vote at the DeKalb location on the day of the election.

“The court finds there were 521 voters signed in to vote at this polling location, but there are 524 ballots. It is extremely disturbing for this court to find there are three more ballots in this box than the court finds voters who voted at this polling place,” the findings state.

Womack notes that five Republican ballots were found in the Democratic ballot box at the DeKalb location.

Texarkana College polling

Womack found that while the election judge for the Texarkana College polling location reported 95 voters voted on the day of the election, records from the Election Administrator’s Office show 96 voters voted.

Womack also points to testimony from the election judge for this location.

“She testified she was not provided official records for completion for Boxes 4A, 2D and 5B and has no explanation as to who completed those or her signature appearing on the documents,” the findings state. “The Republican election judge at this location signed the ‘Ballot and Seal Certificate’ for the Democratic Box at this location.”

Bowie County Courthouse polling

Records for voting at the courthouse from the election judge and Election Administrator’s Office are in conflict and leave one vote in controversy, Womack found. Two Republican Primary ballots were found in the Democratic box.

Malta School polling

Womack notes that all records for this location show 110 voters voted. But the canvass from election night reflects 115 votes from the Malta School box in the Precinct 3 race.

“Records from the recount reflect 115 votes from this box in this race,” the findings state. “Again, the court finds it incredibly disturbing that there are more ballots in this box than the number of voters who are recorded as voting on election day. There are certainly five votes in controversy from this box.”

Oak Grove Lighthouse Church polling Womack found again that numbers reported on records and documents in the Election Administrator’s Office don’t match up with each other. Some records show 175 voters voted at the church while others reflect only 166. The poll book shows 175 voters signed in to vote.

Womack found that the election judge at the church did not properly complete paperwork and reiterates the “very disturbing” appearance that the church box contained one more vote than

voters who signed the polling book.

“It is noteworthy that the election judge for this polling place testified adamantly that he properly completed all his official paperwork at the polling place before turning it in to the Election Administrator’s Office. He had no explanation when shown a copy of his paperwork not properly completed,” the findings state.

Womack also addressed an allegation by Barrett that an election clerk made a disparaging comment about him, which would constitute electioneering.

“The court finds an election clerk for the Republican (election judge) at this location made a highly inappropriate statement as to why she would not vote for Kyle Barrett that was heard by two voters in the polling place, who had indicated their intention to vote for Mr. Barrett.”

Election Procedures

Womack found that procedures were not followed in documenting the transfer of boxes from the election judge of each precinct to the judge of the “Central Counting Station.” Employees from the Election Administrator’s Office were accepting the boxes in the lobby of the courthouse and then stacking the boxes behind them. From there “workers will come and retrieve the boxes from where they are stacked and load them onto a cart and walk them down the hall…where they are delivered to the Central Counting Station.”

Womack notes a lack of paperwork documenting the transfers of the boxes from election judges to employees to workers to the counting station, an improperly sealed box from DeKalb and a number of boxes with “broken” seals.

“The purpose of ensuring the ballot boxes are sealed and they are delivered directly to the central counting station by the election judge (of each polling place) is to minimize any opportunity for outside tampering with the boxes, to eliminate them from changing hands on multiple occasions, to eliminate any fraudulent activity and to insure the integrity of the election.”

Conclusions of law

Womack cites Texas Election Code in his ruling. Having found a maximum of 20 votes in controversy in the election, Womack determined that various provisions of the Texas Election Code were not complied with in the March 3 primary.

“The contestant (Barrett) has shown by clear and convincing evidence extensive mistakes made by election officials in the March 3, 2020, Bowie County Republican Primary Election,” Womack’s findings state. “Because Mr. Strain won the election by either 27 or 28 votes, this court concludes these mistakes have not been shown to have ‘materially affected’ the outcome of the race…”

Womack declared Strain the winner of the Precinct 3 race after hearing two days of testimony in June and a third day in July. In a bench trial, the judge decides the case.

Barrett is represented by Elizabeth Alvarez of Forney, Texas. Strain is represented by Eric Opiela of Austin.