Judge rules Jones can’t obtain list of voters
Dem wanted provisional ballots to be added to District 23’s total
Democrat Gina Ortiz Jones’ efforts to bridge the 1,000-vote gap between her and Republican incumbent Rep. Will Hurd hit a wall in a Bexar County courtroom Tuesday.
County Elections Administrator Jacque Callanen testified that none of the stilluncounted provisional votes in the county’s portion of Congressional District 23 could be validated by the voters who cast them.
Jones has been trying to obtain a list of voters who cast provisional ballots after they failed to produce acceptable ID at the polls or because of other problems. The campaign planned to reach out to those voters and encourage them to present proper ID at the county elections office so their ballots could be “cured” and added to the official count.
Jones asked a state district judge to compel Callanen to release the list and extend by two days the deadline for curing the votes, which was 5 p.m. Tuesday.
Judge Stephani Walsh rebuffed both requests, and the deadline passed later in the day.
Siding with election officials, Walsh said the names of county voters who cast provisional ballots in the congressional race — about 200 — could not be made public until election officials
have finished reviewing them.
That work is done by early voting ballot boards — small, bipartisan panels appointed by county officials — and is still underway in Bexar County. The boards review provisional and mail ballots and determine whether they are valid.
In a further blow to the Jones camp, Callanen testified that none of the 200 provisional ballots at issue in Bexar County involved problems with voters’ IDs. Therefore, she said, the ballots could not be cured through any effort by the voters. Those provisional ballots were used because of discrepancies in voters’ registrations, because voters appeared at the wrong polling places or other reasons.
The ballot boards and the election administrator will decide on the validity of those ballots, Callanen said.
After hearing arguments from both sides, Walsh said it was clear that “the public’s right to access those records is after the early voting ballot board has completed their review.”
The judge’s ruling means that the race will be decided based on ballots already counted or under review. Tuesday was also the deadline for voters in the military or who were overseas at the time of the election to submit ballots.
The District 23 race is one of a handful in the country that remains too close to call. Hurd has declared victory, but Jones has vowed to ensure that every outstanding vote is tallied.
Counting provisional, absentee, overseas and military ballots, at least 1,000 votes have not been verified and added to the results, according to election officials in 17 of the district’s 29 counties — a bloc that accounted for about 90 percent of the vote. It’s unclear how many of those votes will ultimately be counted.
Nevertheless, Jones is within the legal margin to request a recount. Her campaign hasn’t indicated whether it plans to do so. Counties have until next Tuesday to certify their results, and the governor has until Dec. 6 to validate the election.
Callanen, who at times has expressed exasperation at the controversy surrounding the count, praised Walsh’s ruling.
“We’re doing what we’re supposed to do,” she said. “So we’re pleased.”
Two lawyers for Hurd joined Bexar County attorneys in arguing against Jones’ request. Chris Gober, a lawyer for the Hurd campaign, questioned the Jones camp’s motives.
“As you heard from Ms. Callanen, the vast majority, if not all, of the provisional voters at issue here have no ability to cure their provisional ballots,” Gober told the judge. “It seems to me that what the plaintiff is really asking for is the ability to conduct some kind of public relations circus, as opposed to doing anything that cures ballots.”
Isabel de la Riva, a lawyer for Jones’ campaign, took offense at that characterization.
“We are trying to avoid voters from being disenfranchised,” de la Riva said. “That’s it.”
Walsh asked how anyone was being disenfranchised because Callanen said there are no voters who could cure their provisional ballots.
“Because there’s no way to confirm that information from an administration that’s not complying with the law,” de la Riva said.
Jones’ lawyers had argued that the law requires that election judges at each polling site create a list of provisional ballots, which are sent to the elections administrator. That’s the list the campaign was looking for, they said.
Walsh said that is more than 100 lists — not one.
Callanen acknowledged that she did not receive the lists from every polling place, but she said she can’t enforce the rule because she can’t be at every site.
“It’s a sad day,” de la Riva said after the judge’s ruling. She said some voters who went to the polls to cast ballots had their votes “thrown in the trash.”
The county’s lawyers said Callanen will produce the list of provisional voters once it is final and becomes public record. They said the elections administrator has been following the guidance of the Texas secretary of state’s administrative code, a contention Walsh ultimately accepted.
Hurd’s campaign manager, Justin Hollis, said the Republican incumbent wants every vote counted, “with a clear, uniform standard in accordance with the law.”
“If they are, the final vote tally will reflect the will of the voters and re-elect Will Hurd to Congress,” he said.
The race has been tight even by the standards of District 23, a swing district that stretches from San Antonio to El Paso County and regularly produces nail-biting finishes.
On election night, early returns showed Hurd leading comfortably, and around 10:30 p.m. he claimed “a historic victory.” Soon afterward, Jones appeared to concede the election.
Over the next few hours, however, the race tightened dramatically, and around 2:30 a.m. Wednesday, figures posted by the secretary of state’s office showed Jones ahead by 282 votes. The reversal was the result of a tabulation error in Medina County. Once the mistake was corrected, Hurd regained the lead, and he has held it since.