Elections 2022JudicialLocal NewsTexas Attorney General Asks State Supreme Court to Exclude Harris County After-Hours Ballots

Although the state Supreme Court stayed an order to keep polls open to 8:00 p.m., Harris County is attempting to include late votes in its official results.
November 21, 2022
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Just one day before Harris County commissioners were scheduled to officially accept local election results, the Texas Office of the Attorney General (OAG) asked the Supreme Court of Texas to rule on the eligibility of more than 2,000 ballots cast after hours on Election Day.

The county’s chaotic general election included delayed openings, malfunctioning equipment, and a shortage of paper ballots, resulting in some polling sites being closed for hours at a time and turning away voters.

The controversy over the provisional ballots stems from a court order issued by Judge Dawn Rogers late on Election Day without notifying the OAG. Rogers’ temporary restraining order (TRO) required the county to keep voting sites open one hour beyond the statutory deadline of 7:00 p.m.

Although progressive civil rights group Texas Organizing Project sought to keep just 10 of the 782 polling sites open, by law, Rogers had to order all sites to remain open the extra hour, with voters who entered lines between 7:00 and 8:00 p.m. to cast provisional ballots.

Not all voting centers remained open the extra hour, however, as some election judges say they did not receive a timely notification.

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Just before 8:00 p.m. that evening, the Supreme Court of Texas issued a stay and ordered that the county segregate all provisional ballots cast by voters who got in line after 7:00 p.m.

In a request for an emergency writ of mandamus, the OAG says it moved quickly to “stem the damage from the unlawful” order keeping polls open, “but by the time the stay order issued, it was too late to unwind the clock. The result was that some ballots were cast in violation of the Election Code.”

The county elections administration reports there were 2,073 provisional ballots cast by voters in line after 7:00 p.m. on election night. Though Elections Administrator Clifford Tatum assured county commissioners the votes are “segregated,” they are included in the reported results expected to be canvassed Tuesday at 2:00 p.m.

In one contest, incumbent Democratic Judge DaSean Jones now leads his Republican challenger Tami C. Pierce by a mere 449 votes.

Reported unofficial totals for that race have shifted since November 9, when the elections administration announced on social media that the count of early and Election Day ballots was complete. At that time, Pierce held a 1,200-vote lead.

Later that evening, Commissioner Rodney Ellis (D-Pct. 1) filed a lawsuit and successfully obtained a court order to allow those ballots to continue being counted past the statutory deadline of 7:00 p.m. Ellis’ complaint, affirmed by a signed statement from Tatum, claimed that a small number of precinct election records “remain outstanding and may not be processed and delivered within 24 hours of the polls closing.”

By about 7:39 p.m. on November 9, Pierce’s lead had slipped to 400 votes and later that evening to 165. Then on the evening of November 18, the county updated totals to include provisional and mail-in ballots received, and new results awarded Jones a victory by 449 votes.

Harris County Republican Party Chair Cindy Siegel told The Texan that the party’s attorney Andy Taylor had been in discussions with the OAG for several days.

“We believe those provisional ballots that came in after 7:00 p.m. are ineligible to be counted,” said Siegel.

Although the Houston Chronicle has reported that emails show the OAG and the Harris County Republican Party signed off on an agreement for processing the ballots, Siegel said the agreed upon language did not include a final determination for tabulating the provisional ballots.

Taylor explained that even if the Supreme Court of Texas declines to rule on this request, the courts could later throw out the provisional ballots if an election contest is filed.

Once the canvass is completed, most candidates have a 45-day window to file an election contest, but candidates for the Texas House of Representatives have only seven days.

Recount requests for the local county races must be filed by next Monday.

State Sen. Paul Bettencourt (R-Houston) told The Texan, “The law is clear, the stay issued by the Supreme Court is clear, and I’m thankful that the attorney general is trying to make sure the issue is resolved before the county canvass is done.”

The Election Day difficulties prompted Gov. Greg Abbott to call for an investigation. Last week, Harris County District Attorney Kim Ogg formally requested the Texas Rangers to assist in investigating multiple criminal complaints related to the county’s elections.

Editor’s Note: This article has been updated to include Abbott and Ogg’s calls for investigations into Harris County’s elections.

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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.