During a conference hearing with retired Judge David Peeples on Thursday, attorneys representing candidates in 21 legal election contests proposed possible timelines for discovery and trial dates, with some suggesting trials as early as May 2023 but most looking to the fall or even beyond.
Attorney Elizabeth Alvarez, who is representing 17 Republican candidate plaintiffs, proposed a tentative timeline of 180 days for discovery and response followed by trials within another 90 days. Under this expedited time frame, trials could take place as early as August but as late as November 2023.
Alvarez has requested an expedited process as described in Texas statute governing election contests, but attorney John Raley, representing 10 Democratic candidate defendants, argued that the statute only specifies a quick turnaround for primaries or elections in which there is a runoff.
“So, this is not an expedited matter,” said Raley in arguing for an extended timeline. “Under the rules, it is a normal matter.”
Attorney Andy Taylor, who is representing Republican candidate Erin Lunceford in her election contest against Tamika Craft for the 189th District Criminal Court, told Peeples that his examination of Harris County election records could be completed by mid-March and Lunceford’s case could be ready for trial by May, though a more realistic date would be in June.
When queried by Peeples as to why Lunceford’s case should be scheduled earlier than the others, Taylor noted he was examining provisional ballots, statements of residency, and mail-in ballot records to show that there were improperly counted votes and votes discarded that should have been counted.
“If you think about a jar full of jelly beans, the jellybeans in the jar that are in the totals. There are jelly beans in this jar that need to come out, and I’m going to also be saying there are jelly beans on the table that were cast but not counted and should have been,” Taylor said.
“The third point is that there are jelly beans on the floor; those are people who came to vote but didn’t get to,” he added, referring to the unknown number of voters who could not vote on election day due to equipment failures, delayed openings, and a ballot paper shortage.
Taylor explained that Lunceford’s case did not depend on the alleged disenfranchised voters, but that his evidence would bolster the claims of other election contestants.
According to Harris County’s canvassed results, Craft defeated Lunceford by 2,743 votes out of more than one million cast, but Taylor says his analysis of the evidence thus far has already cut the vote difference by half. Taylor added that his evidence will exceed the margin of difference between Craft and Lunceford.
Taylor also indicated that the contest filed by Republican Tami Pierce against Democratic Judge DaSean Jones could also be heard along with Lunceford’s depending on the status of the anti-Strategic Lawsuit Against Public Participation (SLAPP) motion to dismiss.
Last week Peeples dismissed Jones’ anti-SLAPP motion filed by attorney “Downtown” Oliver Brown, calling it “frivolous and solely intended to delay,” but Brown may appeal the dismissal.
During Thursday’s hearing, Brown requested that Peeples “correct” the language, but Peeples refused, saying, “The order I signed with my interlineation is my order and I’m standing by it.”
Brown accused Peeples of “planning in open court to overturn an election” by citing the vote margins, but his comments were repudiated by attorney Ryan McCleod, who is also representing Democratic candidates.
“Mr. Brown, I do believe you are delusional,” retorted McCleod.
On election night, Pierce led Jones by more than 1,000 votes, but as the county continued counting provisional and mail-in ballots, Jones reportedly defeated Pierce by 449 votes. Among the disputed totals are provisional ballots cast by voters who got in line after 7:00 p.m. on Election Day.
After a civil rights group alleged voters were being disenfranchised by the county’s mismanagement of elections, a local district court judge ordered Harris County polls to remain open an extra hour. Later that night, the Supreme Court of Texas overturned the lower court decision and ordered the provisional ballots be kept separate, but the higher court has not ruled on the validity of the late-cast ballots.
Without the late-cast provisional ballots, Jones only leads Pierce by 128 votes.
Attorney Neal Manne, representing Harris County Judge Lina Hidalgo and other Democratic candidates, also expressed concern over Alvarez’s plans to bring in an expert witness to testify that in Voting Rights Act cases the U.S. Department of Justice estimates the numbers of disenfranchised voters when polling locations are closed.
Peeples asked both Alvarez and Manne to send him information that would include related cases, but Manne told the judge there is “no PDF that I can send you that explains why this set theory is nonsense.”
“If Mr. Manne feels the need to write a paragraph that calls the Department of Justice’s analysis nonsense, I don’t care,” retorted Alvarez.
Manne also represents plaintiffs suing Harris County in the federal court system over the constitutionality of misdemeanor and felony bail.
In addition to the pending election contests, the county also faces a lawsuit from the Harris County Republican Party, an audit from the Texas Secretary of State’s office, a criminal investigation conducted by the district attorney in conjunction with the Texas Rangers, and a lawsuit seeking the release of public records.
The county’s handling of elections has also prompted lawmakers to file new legislation that would provide more legal remedies to address election irregularities.
The next hearing is set for March 9, 2023, at 1:30 p.m.
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Holly Hansen
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.
