According to court documents, Commissioner Rodney Ellis (D-Pct. 2) filed a lawsuit seeking an emergency motion to extend the count beyond the 24-hour statutory deadline for precinct returns to be counted.
“As of the time of this filing, a small number of precinct election records including mail-in ballots, remain outstanding and may not be processed and delivered within 24 hours of the polls closing,” states the Ellis filing.
The lawsuit includes a signed statement from Harris County Elections Administrator Clifford Tatum verifying that the statements regarding the current status of the count “are true and correct to the best of my knowledge and belief.”
On Wednesday morning at 10:26 a.m., the elections administration posted on social media that “final results from all 782 locations were released earlier this morning.”
At 6:30 p.m. that evening, the on-call ancillary court Judge Dawn Rogers granted Ellis’ motion for an emergency Temporary Restraining Order (TRO) allowing the count to continue “until … count completion or further order from the Court.”
The TRO also states that all ballots and votes cast shall be “counted and not invalidated on the basis that precinct election records were not delivered to the appropriate authorities within the time provided by the Texas Election Code.”
Sam Taylor, assistant secretary of state for communications, confirmed to The Texan that Harris County had notified the state agency that the count would not be completed by the statutory deadline. The agency was not notified of the court order until after it had been issued.
“Our agency informed Harris County that under 66.053 of the Texas Election Code, election precinct returns must be delivered not later than 24 hours after the polls close in each election,” Taylor said. “Failing to do so is a Class A misdemeanor under 66.054 of the Code. The only way to legally continue counting and reporting ballots after that 24-hour deadline is to seek a court order.”
Harris County is the only county in the state that has not yet reported results to the secretary of state.
While Texas law allows provisional and corrected mail-in ballots to be counted up to six days after Election Day, early votes and Election Day votes must be counted within 24 hours of the polls closing on Election Day.
Tuesday’s election was marred with issues in Harris County that included delayed openings, malfunctioning equipment, and 23 polling sites that ran out of paper ballots, some of which were never replenished.
The county sought and obtained a court order to extend voting times an extra hour without notifying the Texas attorney general’s office, but then the Supreme Court of Texas issued a stay on the lower court, ordering that the provisional ballots cast by voters who got in line after 7:00 p.m. be segregated and not counted.
Harris County also sought an emergency extension after the March 2022 primary election that allowed the count to continue through a second day. Although then-elections administrator Isabel Longoria told the district court judge that the count had been completed two days later, on the following Saturday, she admitted that 10,000 ballots had been left out of the officially reported totals.
Harris County’s 2020 general election is currently undergoing an audit, and the county has also been selected for auditing after this year’s election is completed.
According to the unofficial results posted online at the county’s website, Harris County Judge Lina Hidalgo defeated Republican Alexandra del Moral Mealer by more than 15,000 votes and numerous judicial races showed narrow margins. Incumbent Criminal District Court Judge DaSean Jones, a Democrat, trails his Republican challenger Tami C. Pierce by a mere 465 votes.
Sen Paul Bettencourt (R-Houston) told The Texan he is concerned about unusual numbers on the county’s reconciliation report mandated by state law, and that all parties were not notified of the Wednesday evening emergency hearing in time to participate.
The Harris County election count reconciliation report provides conflicting numbers of provisional ballots and an unreconciled difference of 6,409 fewer voters than ballots.
“I am urging all interested parties to oppose this county extension based on the information we currently have,” said Bettencourt.
The court has set a status hearing for 2:00 p.m. Thursday.
The Harris County elections administrator emailed the following statement to The Texan Thursday morning: “The Ballot Board, which is comprised of representatives from both political parties, was working around the clock to process mail ballots received throughout the early voting period and on Election Day. On Election Night, the board also began processing emergency slot ballots and completed that process by 4 p.m. on November 9. The Board then continued processing mail ballots. Once it became clear the Board would not be able to complete processing mail ballots by the deadline, we met with both the Presiding and Alternate Judge regarding an extension of the deadline. Specifically, we sought clarification from the Secretary of States Office on whether the deadline applied to mail ballots received late on Election Day. Roughly 800 mail ballots remain to be processed by the Ballot Board and we anticipate completing the count by end of the day today. We submitted our preliminary reconciliation form, with the understanding that we would submit a revised reconciliation to include the outstanding mail ballots.”
Editor’s note: This article has been updated with a statement from the Harris County Elections Administration.
This is a developing story.
A preliminary election reconciliation report and a copy of the court order can be found below.
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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.