The ballots in question stem from District Court Judge Dawn Rogers’ order late on election day to keep polls in Harris County open one hour past the statutory deadline of 7:00 p.m.
After receiving notification of the order, the Texas Office of the Attorney General (OAG) sought intervention, and SCOTX stayed Rogers’ order just before 8:00 p.m., ordering that ballots cast by voters who entered the lines after 7:00 p.m. must remain segregated from other validated ballots.
Since then, the county has sparred with the Harris County Republican Party and the OAG as to whether the provisional ballots, reportedly numbering 2,073, could be tabulated and included in the official election results.
According to emails included in court filings, First Assistant County Attorney Jonathan Fombonne stated on November 10 that the county did “not take a position on whether those provisional ballots must be added to the final canvas[s] of votes cast in Harris County,” but an agreement between the parties left the question open.
On November 21, chief of the OAG General Litigation Division Christopher Hilton questioned Fombonne noting that “nothing in the district court’s order permits these late cast provisional ballots to be considered as lawful votes.” In his response, Fombonne wrote “I’m not aware of any order saying the count can’t be tabulated,” and that “just because ballots remain segregated doesn’t mean the vote counts have to be separated.”
That afternoon the OAG filed an official petition for a Writ of Mandamus from SCOTX seeking to block the county from including the disputed provisional ballots in the reported totals.
While Tuesday’s SCOTX ruling stopped short of ruling on the eligibility of the ballots, they ordered that Harris County separately identify in tabulations the “later cast votes” so that candidates, parties, and the Court can ascertain whether those votes would impact the outcomes in individual races “so that the parties can assess the extent to which further litigation is warranted.”
The court also ordered the county to provide it with copies of the canvass results, “including the separately tabulated “later cast votes,” as soon as they are available.”
The petition for Writ of Mandamus remains pending, which allows the court to take future action on the issue.
At the Harris County Commissioners Court meeting, only Commissioners Rodney Ellis (D- Pct. 1) and Adrian Garcia (D-Pct. 2) were on hand to approve the local canvass, but only a quorum of two is required under state code.
Elections Administrator Clifford Tatum delivered two reports, one with totals that included the late cast ballots and one separate report reflecting only the provisional ballots, and commissioners voted to accept the canvass.
In one Harris County race, incumbent District Criminal Court Judge DaSean Jones has defeated Republican challenger Tami C. Pierce by a mere 449 votes.
According to an election advisory from the Texas Secretary of State’s Office local candidates have until 5:00 p.m. Monday, November 28 to request a recount.
Most candidates may file to contest elections up to 45 days after the canvass is completed, although candidates for the Texas House of Representatives only have a seven-day window to file.
Both sides claimed victory after the SCOTX order with County Attorney Christian Menefee celebrating on social media that the court had not thrown out the ballots.
State Sen. Paul Bettencourt (R-Houston), a former Harris County voter registrar, praised the decision to The Texan saying, “This is a solid ruling for transparency for the voters to know what really happened with these provisional ballots.”
Although Rogers’ original order authorized all 782 county polling locations to remain open until 8:00 p.m., some election workers say they did not receive sufficient notice and some closed at 7:00 p.m.
In addition to disputes over the closing time, Harris County elections were plagued by malfunctioning equipment, delayed openings, and a shortage of paper ballots that forced some sites to turn away voters.
The multitude of reported issues has prompted criminal complaints and last week Gov. Greg Abbott called for an investigation. Harris County District Attorney Kim Ogg has formally requested assistance from the Texas Rangers to look into allegations that members of the county elections administration violated state election code.
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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.