Jones’ opponent, Republican Tami Pierce, was one of 22 candidates to file legal election contests after Harris County elections were marred by delayed openings, malfunctioning equipment, and a ballot paper shortage that may have impacted more than 100 polling locations on Election Day 2022.
At a previous hearing, Jones’ attorney Oliver Brown filed an anti-Strategic Lawsuit Against Public Participation (SLAPP) motion to dismiss the case. Anti-SLAPP motions are typically used in free speech cases, but Brown argued before Judge David Peeples on Thursday that the motion is appropriate under the Texas Citizens Participation Act (TCPA).
“Judge Jones actually engaged in the democratic process which is constitutionally protected,” said Brown. “The relief that they are now seeking is to do the election over, which then, that impacts [Jones’] constitutional right to freedom, of association, of free speech.”
The stated purpose of TCPA is to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law.”
Originally passed in 2011, the Texas Legislature amended and narrowed the scope of the TCPA in 2019, which was pointed out by attorney Paul Simpson who spoke on Pierce’s behalf during the hearing.
Brown acknowledged Peeples’ concern that the Legislature never intended for TCPA to apply to election contests but argued that it did apply as election contests had not been expressly excluded in TCPA-related statute. He asserted that dismissal would not infringe on Pierce’s constitutional rights either.
“This TCPA motion is designed for this exact situation,” said Brown. “This is to squelch out sore losers from just launching a lawsuit and then going through discovery and try to nitpick what a county did wrong.”
Simpson said Brown’s motion amounted to “an abuse of the process.”
“There is nothing in this election contest that prevents or in any way impedes DaSean Jones from participating in or exercising his constitutional rights,” said Simpson. “This motion is an abuse of the process and in fact violates the TCPA itself and the Texas Election Code.”
Additionally, Brown suggested that Pierce needed to offer more proof of a botched election prior to filing a lawsuit, and also argued that Pierce had not properly notified the county before filing as required under civil litigation.
Simpson pointed to election code that supersedes conflicting statutes and said the kind of notice was not appropriate in an election contest.
The race between Jones and Pierce features the narrowest margin of victories in Harris County with the two separated by a mere 128 votes according to the final canvass, excluding after-hours provisional ballots the Supreme Court of Texas ordered the county to report separately.
Peeples is hearing all of the cases together, but they are actually separate lawsuits represented by different attorneys, although 17 of the candidates are represented by attorney Elizabeth Alvarez.
Attorney Andy Taylor, who is representing Republican candidate Erin Lunceford for the 189th District Court, told Peeples that he had received about one-third of about 43,000 pages of documents he expects to obtain in discovery, and asked for permission to use additional volunteers who must sign confidentiality agreements.
Attorney Ryan McLeod for Tamika Craft, who defeated Lunceford according to Harris County’s canvassed election results, expressed concern over Taylor’s handling of the case. McLeod warned the judge that Harris County Republican Party Chair Cindy Siegel was among those scrutinizing documents obtained in discovery and had emailed sitting judges and elected officials about the cases.
“The email traffic creates an ethical conflict that never should have been there,” McLeod said.
Under state code governing election contests, plaintiffs’ attorneys may inspect unredacted records. Alvarez told Peeples she had sent notice and a subpoena to the county for records.
Tiffany Bingham for the county attorney’s office indicated there would be an objection, since “the document request is very extensive and overbroad looking for almost every election record that exists.”
Alvarez noted to the judge that Jonathan Fombonne of the county attorney’s office had recently told the commissioners court that he had advised Harris County Elections Administrator Clifford Tatum not to make any additional comments about the election, and expressed concern over whether their objections to discovery had anything to do with protecting Tatum and the county from civil and criminal liability.
The Harris County District Attorney’s Office is also conducting a criminal investigation in conjunction with the Texas Rangers in response to multiple criminal complaints. According to the Texas Election Code, failure to provide supplies needed to process voters is a Class C misdemeanor.
On Election Day, civil rights group Texas Organizing Project sued Harris County and Tatum over delayed openings and successfully obtained an order from a local district court judge to keep polls open an extra hour in the county until 8:00 p.m. In the first hearing that day, Fombonne told Judge Dawn Rogers that ballot paper would be delivered before closing time.
Tatum’s communications with Fombonne and other county officials are included in a recent lawsuit filed by Jim “Mattress Mack” McIngvale and reporter Wayne Dolcefino after the county cited pending litigation and the criminal investigation as justification for non-compliance with open records requests.
In addition to the litigation and criminal investigation, the Texas Secretary of State is also conducting an audit of all the county’s elections since November 2022.
The next hearing is set for February 23, but Peeples could issue a ruling on Brown’s motion to dismiss at any time.
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Holly Hansen is a regional reporter for The Texan living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.