McIngvale sues over election records
Businessman accuses county of refusing to turn over public documents about process
Houston furniture magnate Jim “Mattress Mack” McIngvale has filed a lawsuit against the Harris County Elections Administrator’s office accusing it of refusing to turn over public records related to the November 2022 election, adding to an array of GOP litigation aimed at the county’s elections process.
According to the petition filed Monday night, Wayne Dolcefino, a media consultant and former TV journalist, submitted multiple requests for public information on behalf of the Gallery Furniture owner, who was a major donor supporting Republican candidates including County Judge Lina Hidalgo’s opponent Alexandra del Moral Mealer.
In response to each of the requests for public information, the elections office responded by seeking an opinion from the Texas Attorney General’s Office, allowing it to withhold the information due to ongoing litigation, the lawsuit states.
The petition also acknowledges the county has provided some of the requested documents.
In a statement Tuesday, Harris County Attorney Christian Menefee’s office said: “The requests for these documents were handled the same as any other requests for documents related to ongoing litigation against the county. We’re evaluating the lawsuit and will let the courts sort it out.”
The Harris County Elections Administrator’s Office also issued a statement, saying it readily has responded to requests that do not require documents subject to the litigation, and has sought an opinion from the attorney general’s office on those that do.
“According to the Public Information Act, the attorney general’s office has 45 working days from the day after the request to respond. As of today, the office has not received an opinion on
how to proceed with these particular public information requests. Any suggestion that the Harris County Elections Administrator’s Office lacks transparency is false,” it said.
The lawsuit is an example of why the Texas Legislature should repeal the “litigation exception” provision in state law that offers public offices an option to withhold records during litigation, said Bill Aleshire, an Austin attorney who works with the Freedom of Information Foundation of Texas.
“There is no justification for denying the public information about a controversy just because it involves litigation,” Aleshire said. “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. Yet, the way the (Texas Public Information Act) is written, no one — except those involved in the underlying lawsuit — can get access to the public information.”
The “litigation exception” typically is upheld by courts, so McIngvale’s lawsuit is unlikely to produce the requested records, he said.
However, state law does not prevent the county from providing the records, but rather gives the county discretion to decide.
“It does not make the records ‘confidential’ (where it would be illegal to disclose the information); it just means the government is not required to disclose the information,” Aleshire said. “But they could if they are willing to do so.”
McIngvale’s lawsuit comes more than a month after 22 unsuccessful Republican candidates filed lawsuits in Harris County challenging the results of the November election, including Mealer, who lost her race by around 18,000 votes and conceded the contest the morning after Election Day.
The candidates claim ballot paper shortages on Election Day disenfranchised voters.
McIngvale engaged Dolcefino’s firm months ago to investigate the 2022 election, which also faces scrutiny from a Texas Rangers criminal investigation, a Harris County Republican Party lawsuit alleging violations of the Texas Election Code and a forensic audit by the Texas Secretary of State’s Office for which Harris County was randomly selected.
“Harris County voters have a right to know right now what went wrong,” Dolcefino said.
According to the petition, Dolcefino requested a detailed phone record for Elections Administrator Cliff Tatum, including text and phone messages. The requests also seek Tatum’s emails on Election Day, all email communications between Tatum and Precinct 1 Commissioner Rodney Ellis’ office, maintenance records for voting machines, information about ballot paper allotment and communications on Election Day between the elections office and the election judges presiding over polling locations.
“We want to know from the Harris County election board whether this was incompetence, negligence, corruption or a combination of all three,” McIngvale said.
Asked if they had evidence or an estimate of voters disenfranchised by the events of Election Day, Dolcefino replied, “It hasn’t been the focus of what we’re doing.”
The first judicial election challenge was filed in December by Republican candidate Erin Lunceford, who lost Harris County’s 189th State District Court race to Democrat Tamika Craft by 2,743 votes.
In an email obtained by Craft’s attorneys and posted on the Harris County District Clerk’s website, Harris County Republican Party Chair Cindy Siegel gave candidates the party’s estimate of disenfranchised voters on Jan. 3, when the deadline to file election contest lawsuits was approaching.
“Based upon information to date we believe there were approximately 2,600 or more estimated voters turned away due to running out of ballot paper or machines not working for a period of time,” Siegel wrote.
The closest race, between Republican Tami Pierce and Democrat Desean Jones for the 180th State District Court, was decided by 449 votes. The next closest race, between Lunceford and Craft, was decided by 2,743 votes. Fourteen of the Republican candidates who filed election challenges lost their races by more than 24,000 votes.
Last week, Lt. Gov. Dan Patrick joined other GOP state officials calling for Harris County to redo its election because of claims that voters were turned away due to alleged paper ballot shortages, though acknowledging he had no idea how many voters were actually disenfranchised, if any.
The Harris County elections office has repeated the response it has offered since election night: that while some voting locations did run low on their initial allotment of ballot paper, “supplies of additional paper ballots were delivered to locations throughout Harris County on Election Day.”
An election post-mortem report from Tatum’s office found that 68 voting locations reported running out of paper, 61 of which received additional deliveries. At nearly one-third of the locations with reported shortages, election workers gave the county conflicting accounts with some saying they did not run out of paper.
According to the report, “many of them provided confusing answers and some declined to speak after reportedly being advised not to do so by the Harris County Republican Party.”
Tatum has said that while paper supplies ran low at some locations, the county has not been able to confirm whether any voters were turned away as a result.