HD 73: Macias Refuses To Go Quietly, Files Lawsuit Over Primary

Not surprisingly, State Rep. Nathan Macias has filed a lawsuit in the hopes of keeping his seat in House District 73, which he lost to Doug Miller after a recount showing him losing by 17 votes.
What are their grounds, you ask? This, you won’t believe:

“There is no other option but to ask a judge to order a new election,” Macias, R-Bulverde, said at an Austin news conference. “My hope is that for all our sakes, we ensure that a fair, open and honest election takes place.”

Macias claimed that a comparison of the Democratic and Republican primary election voter lists shows that 253 people in District 73 illegally voted in both contests.

“Our position in the lawsuit is you just can’t know who really won this election,” said Macias’ lawyer, Rene Diaz.

I strongly suspect that the Courts won’t be ordering a new primary in this race, and I’ll tell you why. First and foremost, I don’t think that the math will pan out to show that more than 200 people “double voted” in this district. If Harris County, one of the largest urban counties in America, has only 1,167 possible “double voters,” out of about 600,000 voters, it would seem to be quite a mathematical anomaly to have 253 people “double vote” out of a mere 30,000 (roughly) that voted in the HD 73 GOP contest.

Also, there are a couple points of law to consider here. Here is what the Election Code tells us about courts determining the winner of election contests:

§ 221.011. ILLEGAL VOTES SUBTRACTED. (a) If the tribunal hearing an election contest can ascertain the candidate or side of a measure for which an illegal vote was cast, the tribunal shall subtract the vote from the official total for the candidate or side of the measure, as applicable.

So, in theory, depending upon how the votes fall, if the court actually compels the “illegal” voters to testify for whom they voted, a winner of the election could still be determined. The only time the courts are, via the election code, instructed to void the contest is as follows:

§ 221.009.(b) If the number of illegal votes is equal to or greater than the number of votes necessary to change the outcome of an election, the tribunal may declare the election void without attempting to determine how individual voters voted.

Still, it’s a may, not a shall.

Aside from the “double voters” which are alleged, Macias also alleges some other irregularities:

The suit claims that in Comal County, 44 mail-in, absentee ballots should not have been counted because they were not signed by Comal County Clerk Joy Streater, as required by law, and that three provisional ballots also lacked election officials’ signatures and should have been discarded.

Streater said Macias’ representatives did not raise the issue of unsigned mail-in ballots at the recount, and she did not know whether that allegation is true.

She said if it’s true, “it would be up to a judge to decide” if there were fatal flaws in the election.

The key question here will be whether or not a judge determines that these are sufficient defects to cause major problems. Failure to sign ballots is, sadly, a common occurrence in a high-turnout election. I don’t think that any court in Texas is eager to set a precedent where a handful–or even a single–unsigned ballot can void or change the result of an election. That is, of course, unless there is some fraud proven. And, of course, Macias is alleging fraud:

The complaints in Gillespie County focus on Box 5, the last box of the four counties to be tallied. Macias was leading by more than 50 votes before that box was counted, and the results of Box 5 gave Miller his apparent victory.

But Macias claims it arrived at the courthouse suspiciously late, showed a suspiciously high voter turnout and “by far the most serious irregularity with respect to the election records of Gillespie County Box 5 involved the last voter sign-in sheet,” which was unsigned by the election judge, the suit claims.

Again, an unsigned sheet isn’t enough to void an election. At worst, handwriting analysis could verify that all of the voters signatures are different. As for the box showing up late, since this was an R and not a D primary, I am doubting the late box was because the election workers stuck around for a GOP precinct convention, but late boxes are also common when they come to courthouses from far-flung areas.

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