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Frontier DA Series 2008 March 11 — May 10, 2008
05-10-08 Dismissed
05-06-08 Chronology 04-29-08 Canvass Confirmed 03-31-08 Virgen de Guadelupe v Desperate Men 03-31-08 The Canvass Crisis 03-27-08 Pete Smyke Asks the Right Questions 03-26-08 Letter to the Editor from Pete Smyke re DA Frank Brown and ADA Steve Houston 03-25-08 VOTE — If You Can 03-20-08 COUNT THE VOTES 03-17-08 A Very Merry Unmeeting 03-15-08 A Lawsuit Has Been Filed ... 03-14-08 "The Democratic Nominee for District Attorney (for the 83rd District) Is Unknown" 03-12-08 This and That: Brewster County Elections Office News Release 03-11-08 Box(es) 13 in Brewster County? May 10, 2008
Dismissed
In capital letters, underlined, Brown’s
Motion to Dismiss states the reasons “VICTIM NO LONGER WISHES TO
PROSECUTE.” Judge Ken DeHart granted the motion on May 8
and therefore there was no action on this case at the scheduled docket
call May 9. (Coincidentally, the assault was alleged to have occurred
May 9, 2007.) A
The 3829 case file
was lost or misplaced some time before January 14. DA Brown told us the
file was “still sealed” on January 14 but was unavailable for comment
afterward. District Clerk JoAnn Salgado found the file January 22 and
the arrest warrant was reissued. Brown’s motion to reissue the arrest
warrant on January 24 includes the statement “The victim now wishes to
prosecute the case.” •
May 6, 2008
Chronology By Jack D. McNamara 2008 Democratic Primary for the 83rd District Attorney (Presidio, Pecos, Jeff Davis and Brewster Counties) 2/5 “We’re Ready,” Elections Administrator Jerri Dale Jones told the Brewster County Commissioners Court. Alpine Avalanche. Agenda Item #3. 3/6 “Brown re-elected district attorney,” Big Bend Sentinel, margin of 17 votes (3120-3103). Carried Brewster, Jeff Davis. Long wait, slow Presidio County. (Alpine Avalanche, Brewster count 1131-1003) 3/10 Long email from Brewster County Democratic Chair Dale Christophersen, “received call 3-3:30.” Telephone call from Jones (en route Lubbock) that Jones “found” three ballot boxes Friday, March 7. 3/11 Brewster County news release from County Judge Beard’s office, signed by Jones. New Brewster total Brown 1152-Gonzales 1044. Nimby column “This and That.” 3/11 Nimby email (2:33) “Box(es) 13 in Brewster County?” Found boxes = 97 votes, Gonzales ahead now by 3 votes (of 6285). 3/12 Our email exchange with Scott Haywood, SOS office. 3/13 Telephone conference between Houston, Christophersen, Craig and “SOS lawyer.” No record made nor released to the public. 3/13 Ft. Stockton Pioneer “Gonzales Elected 83d District Attorney.” Brown margin of +17 becomes -3; 3144-3141. Failure of Jones and Brewster County to notify Gonzales. 3/13 Brewster Democrat Executive Committee meets, takes election away from Gonzales per telephone call with unnamed “SOS lawyer.” Canvass “ceremonial,” don’t count boxes 3, 5, 7. Nor do we count Precinct 4, not signed by the election judge. OK Precinct 8, was signed. Provisional ballots not to be counted. Why wasn’t the sheriff given custody of the boxes? He was on the ballot said Beard aide Conrad Arriola. (Rangra — so was Houston). “The Democratic Nominee for District Attorney is Unknown,” Nimby column. 3/14 KVLF — Democratic Committee “gave the election back to Frank Brown.” Broadcast Christophersen’s lengthy memorandum accompanying the erroneous canvass. 3/14 Pioneer — Gonzales press release, “Count the votes.” 3/14 8:50 a.m. — “Plaintiff’s Application for Temporary Restraining Order and Temporary Injunction,” filed by Gonzales, case 8698. 1:30 p.m. — Judge Ables filed TRO (which he had signed at 12:20 p.m.). Sets 3/28 hearing. 1:30 p.m. — Brewster County Attorney Houston filed “Application For Order Impounding Election Records” (273.003); Case 8699. 3/17 Called meeting of Brewster County Elections Commission. Executive Session re “personnel.” About one hour. Jones in session. Come out, quick statement from Republican Chair Craig, resolve in court. “Errors” but not “corrupt.” 3/18 Gonzales, “Motion for Prompt Vote Count,” including 7 affidavits for requesting an AG criminal investigation. 3/20 “Brewster County mistakes cripple election results in district attorney race”, Big Bend Sentinel. Photo of Christophersen. Cartoon by Golliver and Jim Bridges. Jeff Davis page 1, There were a dozen or so votes cast in Demo primary by Republicans who signed candidate petitions. Alpine Avalanche, “DA Race Still in Doubt,” plus time line. 3/25 Called meeting Brewster County Commissioners Court. Executive Session/Jones; but added posting will not be held. Greg Hudson hired, client county and Jones. 3/25 Jones “found” more material, called sheriff. 3/25 Texas Ranger Capt. Caver — not investigating anything, waiting on SOS to direct him. Has heard FBI requested. 3/25 Hudson files “Defendant Brewster County Election Administrator Plea to the Jurisdiction.” In Hudson’s filing are memo from Jones to Beard, Houston, Hudson re found material — tapes “may be … Precinct 4.” Filing includes the first publication of the tabulations for the Democrats — not previously released to the public, media, candidates or anyone else. The tabulated results are replete with new error — the arithmetic is wrong. 3/28 Judge Ables hearing in Brewster County courtroom re Gonzales motions Case 8698. No jurisdiction, retains TRO re-election records. (“The Canvass Crisis”). 3/29 Email from me — the over vote/arithmetic error is the mail-in/absentee … nope, doesn’t account for the large numbers (385 votes). 4/1 April 2, 3, and 4th were the recount dates for Pecos; Jeff Davis and Presidio; and Brewster County, respectively. 4/4 Gonzales wins by 32 votes, the result of including the “found” ballot boxes; Precinct 4 votes in Brewster County and the discovery that the arithmetic errors were in the ESS voting machines/election administrator’s inability to operate the machines. Brown goes from +17 (March 4) to -3 (March 12) to -32 (April 14). 4/15 Another meeting of the Brewster County Elections Commission, another Executive Session. Memo from Judge Beard directing strictures on Jones (“press releases … proofread by another county employee (Brooks, Arriola, etc.)” Refers to “lengthy” executive sessions April 2 and April 14). 4/24 “Brewster County officials retain elections administrator,” newspaper headlines 4/28 State Democratic Executive Committee (SDEC) confirms they met and confirmed the Brewster Count recount canvass, Gonzales is the Democrats’ candidate. 5/1 “It’s over, finally: Gonzales is district attorney” by Sterry Butcher, Big Bend Sentinel. “— Frank Brown has decided not to file an election contest … ‘I will retire,’ Brown said.” Nimby News columns at www.nimbynews.com: 04-29-08 Canvass Confirmed 03-31-08 Virgen de Guadelupe v Desperate Men 03-31-08 The Canvass Crisis 03-27-08 Pete Smyke Asks the Right Questions 03-26-08 Letter to the Editor from Pete Smyke re DA Frank Brown and ADA Steve Houston 03-25-08 VOTE — If You Can 03-20-08 COUNT THE VOTES 03-17-08 A Very Merry Unmeeting 03-15-08 A Lawsuit Has Been Filed ... 03-14-08 "The Democratic Nominee for District Attorney (for the 83rd District) Is Unknown" 03-12-08 This and That: Brewster County Elections Office News Release 03-11-08 Box(es) 13 in Brewster County? April 29, 2008 Canvass Confirmed I called yesterday (Monday, April 28) to ask the Texas State Democratic Party if the local canvass had been accepted by the state party. The Democrats said yes, the primary results and recount had been canvassed and confirmed on Saturday, April 26 in Austin. The SDEC can be found on the party’s website at http://www.txdemocrats.org. The committee consists of “one female and one male” from each of Texas’s 31 senatorial districts and almost a dozen special organizations such as “County Chairs Assoc.” Party chairman Boyd Richie from Graham is the SDEC Chairman. The April 26 action confirms that the Democratic nominee for the 83rd District Attorney will be Jesse Gonzales, Jr. of Ft. Stockton. The election code says that the incumbent, Frank Brown, defeated by 32 votes according to the recount, has until May 6 (10 days) to file an election contest in the 394th State District Court. The Nimby News
March 31, 2008
Virgen de Guadalupe v Desperate Men By Pete Smyke Not the County Judge. Not the County Attorney. Not the Democratic Party Chairman. Not the County Elections Administrator. Not one of the five attorneys arrayed before visiting Judge Steve Ables. And certainly not the County Commissioners and assorted good old boys in the row in front of me. No one present (or missing) at the March 28th, 2008 hearing reviewing Jesse Gonzales' Temporary Restraining Order to suspend an incomplete canvass of Brewster County's votes was there to represent the disenfranchised voters of Brewster County. As usual, that task went to our region's entity of last resort — The Virgen de Guadalupe. The attorneys who argued that it was premature for a Judge to be involved until the political election process had run its course carried the day. They asserted that the excluded votes weren't counted in time. They cited statutes about who can and can't count votes. They argued that the Temporary Restraining Order was disenfranchising the voters who had been originally included in the incomplete canvass that the order sought to stop! Attorney Greg Hudson even exclaimed at one point that he didn't care if all of the votes went counted or uncounted, as the State Elections Code allowed that recounts may cover votes previously missed in the first election tally. (This hearing was specific to the 83rd District Attorney's election; a recount of that contest won't re-enfranchise votes cast in the other races.) It didn't seem like a very proud day for American politics or law, but faith works in mysterious ways. It turns out that one of the legal filings in this case contains the first publicly available comprehensive election canvass of the March 4th Brewster County races. In early voting for the 83rd District Attorney's contest, Frank Brown received 741 votes against Jesse Gonzales' 634, out of a total of 951 votes cast (do the math). Other races revealed similarly questionable counts, where votes cast exceeded voters by a wide margin. It will be interesting to see how the local powers that be try to justify having the Brewster County Attorney/Assistant District Attorney investigate his boss's tainted election without bringing in the Attorney General's office or the Texas Rangers. As if to underscore the Virgen de Guadalupe's benevolent embrace of our region, on Friday afternoon I discovered that the owner of Ring Tail Records had been holding a CD for me by an old Austin friend. It contained a song that I've been thinking of for a few weeks now; Jimmy LaFave's “Desperate Men Do Desperate Things.” • March 31, 2008 The Canvass Crisis By Jack D. McNamara On Friday, March 28 Judge Stephen Ables of Kerrville dissolved his own Temporary Restraining Order (TRO) of March 14. That freed the Brewster County Democrats voting canvass of March 13 for submission to the Texas Secretary of State (SOS) and the state party. Brewster County Democrats’ voting majority for Barack Obama heads for Austin to be counted into the totals. The following day — Saturday, March 29 — the county Democrats met in the same courtroom to select delegates and alternates for the state convention. The precincts selected three Obama delegates and three Hillary Clinton alternates and one Clinton at-large delegate with an Obama alternate. The county chairman, Dale Christophersen, is also a delegate. Chairman Christophersen told the unusually large assembly of 50 county delegates of the previous day’s court action and added there were still problems with the canvass. In fact he said he had only learned the previous day (Friday after 5 o’clock) that the canvass tabulations failed to add up. That is, there are several arithmetic mistakes. For example, the total number of votes cast in the Democratic primary for either Jesse Gonzales, Jr. or Frank Brown (2169 votes) was more than the total number of voters who voted in the listed canvass tabulation for both early voting and Election Day voting. A total of 741 early votes were canvassed for Frank Brown and 634 for Jesse Gonzales. But only 990 total voters are reported in the early voting columns of the latest Brewster County Election FUBAR report for the DA’s race. On March 10 we discovered from a tip that three ballot boxes, 97 votes, had been “discovered” in an “obscure corner” of the vault. On March 13 we discovered that the Election Day electronic votes from Precinct 4 were disqualified because the election judge had failed to sign a required paper. The election judge immediately contradicted that assertion and said she had signed the paper. On March 13 we discovered the “provisional” 15 ballots were all disqualified because the party chairs and the elections administrator had improperly opened them. Also on March 13 we learned the 97 ballots from the “obscure corner” of the vault were disqualified because they had been improperly secured, opened and counted by the county judge, the county attorney and the elections administrator (among others?). On March 27 we discovered the Democratic canvass arithmetic was FUBAR (F ....up beyond all recognition). We discovered this only because the Democrats’ tabulation sheets were included as an enclosure to Austin Attorney Greg Hudson’s court filing (“Plea to the Jurisdiction”) after he was retained by the County Commissioners on Monday, March 24 to represent Jerry Dale Jones in the litigation filed by Jesse Gonzales on March 14. The subtotals and precinct totals have never been published so far as we know. That is, 23 days after the day of the election I found the precinct totals which I had been searching for. I made the mistake of looking for posted election results in the places one might expect a government which proclaims "the public's business should be done in public" rather than an Austin attorney's brief. On March 27 we also discovered in the court’s file that Jerri Dale Jones had just written a memorandum to the county judge and the county attorney on March 25 stating that “electronic Tally Tapes” had been “found” in papers being prepared for the April 8 runoff. The courtroom was full on Saturday. Especially full was the area forward of the bar. On the audience’s left was Midland Attorney Dick Holland, representing Frank Brown, who wants to intervene. Holland’s mother is an Alpine High School graduate of the mid-fifties. Next to the right was Charles Blackley, representing Christophersen. Blackley is the Alpine Municipal Judge. Next to him was Greg Hudson representing Jones. Hudson is the son of Ray and Maxine Hudson. Ray Hudson and I spent many dusty afternoons butting heads on the Alpine High School football practice field in the mid-Fifties. Next to Greg Hudson sat Rod Ponton of Alpine, formerly the Presidio County Attorney, who was almost born in Alpine. Then Jesse Gonzales, Jr. who was born and raised in Ft. Stockton and the former 83rd District Attorney, Albert Valadez of Ft. Stockton (he started all this by retiring in 2000 and clearing the way for Frank Brown to be elected). On the far right on the second row of chairs up in the jury box sat Frank Brown and his wife Charlotte Harris. Counting Judge Ables, that is nine lawyers. Predictably then, the hearing was about the legal question of whether or not Judge Ables had the legal authority to do anything before the canvass goes to Austin; i.e., does he have jurisdiction? He decided he did not. So off goes the most FUBAR canvass in history, in conformance with numerous citations of Texas law. The Mystery Authorities The most curious thing of all was that the most cited legal authority was a telephone conference call with “Secretary of State attorneys” on Thursday set up by Brown’s Assistant District Attorney Steve Houston for two party chairs and himself (no public notice and no public report afterwards of course). It was a long call according to some of those participating. No names of these mysterious authorities have ever been given. Nor is there any written record. All we know is that after the call Gonzales’ votes (from the wandering ballot boxes of Precincts 3, 5 and 7) were killed and Frank Brown was again the apparent winner of the Democratic primary in which more votes were cast than there were voters voting. • March 27, 2008 Pete Smyke Asks the Right Questions By Jack D. McNamara Pete Smyke of Alpine asks the correct questions. Why are Brewster County citizens and voters struggling to find out what happened to their votes more than three weeks after we cast them? Smyke writes — “Mssrs. Brown and Houston were fond of saying that “the public’s business should be done in public” when they alleged violations of the Texas Open Meetings Act by Alpine City Council members. Why doesn’t that standard apply to protecting Brewster County’s voters? Were the results of the voting in Brewster County ever posted? In the courthouse … the voting office … or the outhouse? Only glancing totals were reported by the weekly newspapers and KVLF. The Brewster County website to this day does not provide a detailed tabulation of the votes. If any official had posted publicly anywhere the voting results by precinct then the large number of election and party officials, as well as we citizens, would have quickly seen some rather obvious holes in the tabulation. For one thing the early (“remote”) votes from precincts 3, 5, and 7 were not there. And where is the absentee vote totals reported? Today we were told “anecdotally” by two veterans of Brewster County voting that there were as many as 1300-plus absentee votes (servicemen, peace corpsmen, students, and citizens out of town during the designated voting period) … and none. Both cannot be true. The commissioners’ court met yesterday ostensibly for the purpose of evaluating Jerri Dale Jones. That did not happen. County Judge Val Beard coolly and precisely described that the hiring and firing of Jones was a matter for the county elections commission. Four of them must agree to fire and then the commissioners’ court must approve by a majority. The agenda for yesterday included an executive session; but that was cancelled and had there been an “evaluation” it would have been in open session. So the meeting adjourned … but not before Judge Beard took some questions from us. We asked — Where, if ever, were the precinct totals publicly posted? Judge Beard said that was a party matter. Why wasn’t the sheriff the official who secured the ballot boxes and escorted them to the voting office? Again Judge Beard said it was a party matter. Who, if anyone, is investigating the conduct of the election? Judge Beard knew of no one (though we have been informed by Texas Ranger Capt. Barry Caver that he is awaiting instructions from the Texas Secretary of State (SOS). Who does Attorney Greg Hudson (who was hired Monday by the commissioners’ court) represent? Judge Beard said Jones. We then contacted Brewster County Democratic Chair Dale Christophersen who said he couldn’t comment. Smyke’s questions are not answered. The apparent conflicts of interest among the county’s attorneys are somewhat sick-making. No justification for this situation has yet been offered. Indeed, Mssrs. Brown and Houston are still drawing paychecks for the chaos they have inflicted upon us. And no one can comment because the matter may be under “investigation” or worse still, “litigation.” Brewster County citizens will remember that Smyke’s quote from Brown and Houston was uttered in their defense of themselves while losing the attempted prosecution of Alpine city council- persons for alleged criminal violations of the Texas Open Meetings Act. That prosecution was stimulated by a misguided attack from County Judge Val Beard in the now-defunct Desert Mountain Times weekly newspaper. Beaten at every turn, DA Frank Brown nevertheless insisted that his warped interpretation of the TOMA was correct and that he would prosecute again. Perhaps he will if Beard, Houston and Brown can prevent the counting of the votes in Brewster County. Perhaps we will be informed in Judge Able’s courtroom Friday. Or perhaps the judge will concur in the voiding, canceling or assassination of dozens of votes as desired by the current Democratic leadership and the incumbent Brewster County lawyers. Stay tuned. •
March 26, 2008 Letter to the Editor from Pete Smyke Dear Editor, Can someone please explain the ethics of Assistant District Attorney Steve Houston being intimately involved in saving his boss District Attorney Frank Brown's job? Does simply putting on his County Attorney hat absolve Mr. Houston from recognizing the seriousness of the conflict of interest he's involved in? Or is it time to notify the Texas Bar Association that “Houston, we have a problem?” Additionally, if Mr. Houston couldn't recognize an ethically challenged situation when he was in one, why did it take our County Judge/Chief Elections Officer over two weeks to bring in outside counsel? And who exactly is that counsel representing, Brewster County's voters or our elected officials? Hiring an Austin attorney didn't seem to be a problem when it was time to shoot down the idea of a Sub-Regional Planning Commission to fight La Entrada Al Pacifico. Commissioners and taxpayers were given a staggering misinterpretation of an SRPC's form and function with no questions allowed, in an eerie parallel to the telephone conference that Mr. Houston set up with the county elections administrator, local party chairs, and the Secretary of State's office on the morning of the incomplete Democratic canvass. (Apparently no notes were taken, and Jesse Gonzales' representatives weren't invited!) Messrs. Brown and Houston were fond of saying that “the public's business should be done in public” when they alleged violations of the Texas Open Meetings Act by Alpine City Council members. Why doesn't that standard apply to protecting Brewster County's voters? It is well past time that ethically compromised Brewster County elected officials remove themselves from our vote counting scandal, and allow knowledgeable, impartial state officials to get to the bottom of a process that has disenfranchised hundreds of honest, taxpaying citizens. Sincerely, Peter A. Smyke 303 N. 1st St. Alpine, TX 79830 432/837-9087 politburro@sbcglobal.net • March 25, 2008 VOTE — If You Can By Jack D. McNamara The Big Bend counties of Brewster, Jeff Davis, Pecos and Presidio went to the polls March 4. As it has been in the past, the Democratic primary attracted the highest interest. Win that March primary and a candidate often does not have an opponent in November, which is the meaning of “tantamount” to election. There were several area (or district) contests of great interest — the 394th District Judge nomination and the 83rd District Attorney’s race, incumbent Frank Brown of Brewster County vs. Jesse Gonzales, Jr. of Pecos County. On election evening, March 4 we all tuned in to KVLF radio for results. But these were incomplete — Gonzales won Pecos County narrowly and Brown won both Brewster County and Jeff Davis County by large 100-plus votes. The problem was a slow vote of the early votes in Presidio. There were a lot of them and the count continued for 36 hours. On Wednesday evening, after the Alpine City Council meeting, I heard from a friend that Brown had won by 17 votes. Presidio County has frequently been late in vote counting. The county casts big votes for Democrats. It is majority Mexican American so their totals are important among the districts. During the 2000 and 2004 elections they did not vote for Frank Brown. In one criminal trial during his tenure DA Brown actually requested a change of venue because he could not expect to win, or convict, a controversial case in Presidio County. And indeed, Brown did not win that case even though he subpoenaed the local newspaper editor to testify. Few Texans have ever heard of a DA requesting a change of venue (the request was refused). On the following Thursday, March 6, the Alpine Avalanche published only the Brewster County results, showing a result in the district attorney race of Brown-1131 and Gonzales 1003, a margin of 128 for Brown. The Big Bend Sentinel proclaimed “Brown re-elected,” and reported the results for all four counties: Brown 3120 votes; Gonzales 3103. The Sentinel’s more comprehensive report is in part the result of a later deadline. As of late Wednesday, March 5, the Sentinel reported besides the total that Gonzales beat Brown by 20 votes in Pecos County and 214 in Presidio County. Given Brown’s reported margin of 128 in Brewster, a March 6 Jeff Davis County Mountain Dispatch reported margin of 123 for Brown, a 20-vote Gonzales margin in Pecos County and the Sentinel’s exclusive report for Presidio County of a 214 Gonzales margin — one big thing was certain: this was a close election. KVLF reported these results as quickly as they could get reports from the counties, including puzzlement at how long the Presidio vote was taking to count. But the results are the results so unless the Texas Rangers or the FBI started arresting someone we had only to await the question of whether or not the designated loser would call for a recount in one or more counties. We know that chapter very well from the 2000 election when it was Brown who called “Recount!” (which he lost so then he sued). But on Monday, March 10 news began leaking from the Old Post Office building in Alpine where Brewster County Elections Administrator Jerri Dale Jones has her office. (“Box(es) 13 in Brewster County,” 3/11/08) I received a call from Avinash Rangra, the Alpine City Councilman who represents us in Ward 1 that three voting boxes had been “found” in the Elections Office. Six days after the close election, with little or no information posted or published in Alpine, with really only Radio Station KVLF’s frequent news broadcasts, we learned that boxes representing the early votes of three remote precincts had been “found” unreported in the voting office. To make matters worse, when voters called the voting office they were told the elections administrator was out that day (Monday, March 10) driving to Lubbock for a doctor’s appointment. I called County Democratic Chairman Dale Christophersen (a personal friend) and KVLF’s Ray Hendryx (a family friend for more than 50 years). Both were unaware of the allegations. Before the day was out Christophersen answered me in a lengthy email. The email was also sent to Brewster County Judge Val Clark Beard and several Democratic precinct chairs. He described the situation as he found it that afternoon. That same afternoon, KVLF broadcast the news previously not announced by any local government — there were three ballot boxes from voting precincts 3, 6, and 7 sitting in the election administrator’s office. Rumors and questions continued to circulate. In this case the rumors outscored the official reports by a large margin. The boxes had been opened, maybe Friday, or Saturday, or Sunday — but certainly the boxes were opened by Monday. The seals were broken and the locks unlocked. The ballots were removed. Without any supervision from the party chairs, election judges or county officials, the ballots were handled. On Tuesday, March 11, 2008 the county issued a news release. I was informed by KVLF. I went to the voting office late in morning. Jones told me I would have to go get the release from the county judge’s office. Jones refused to say whether she had informed any county official from the Friday she “found” the three boxes in the vault to the Monday when the news broke. She also refused to say to whom she had reportedly spoken at the Secretary of State’s Office. I went to the county judge’s office. The news release was in the judge’s secretary’s computer and she printed it out for me (“This and That: Brewster County Elections Office News Release,” 3/12/08). There were 97 ballots in the three boxes, a gain of 41 for Gonzales and 21 for Brown, according to the news release. The new Brewster County totals changed the result to Gonzales wins by 3. On Wednesday, March 12 I emailed a question to the Texas Secretary of State’s Office and Scott Haywood responded. The county’s press release was misleading. On Thursday, March 13 the Democratic Party executive Committee met in Christophersen’s back yard. Christophersen invited the press and interested citizens to attend. The long and contentious meeting resulted in a vote (3-0 with one abstention) to a result of the Democratic primary — but not the result the public knew of from the county’s press release. The county’s voting report included the results of a long telephone conference call which Christophersen reported as guidance from the Secretary of State NOT to include the results of Boxes 3, 6, and 7 (whose 97 votes give Gonzales the victory) as well as NOT the four provisional votes NOR the entire electronic vote from Precinct 4 (OK for Precinct 8). In other words, from Tuesday to Thursday perhaps as many as 300 votes were invalidated for the purposes of the Democratic Party of Texas, the United States of America and the world (“The Democratic Nominee for District Attorney (for the 83rd District) Is Unknown”). (You wonder why I am an independent.) Friday morning March 14 Gonzales filed suit to enjoin Brewster County officials from forwarding the report Brewster County screwed up (“A Lawsuit Has Been Filed …” 3/15/08). Later that day, Brewster County Attorney Steve Houston filed a motion requesting a criminal investigation. Judge Stephen Ables has set a hearing for March 28 here in Alpine. March 4 began with “A Postcard From the Big Bend” in a New York Times blog “The Caucus by Andrew Nelson, a professional author who is often here on assignment. He described a rally here for Barack Obama the previous week and quoted State Representative Pete P. Gallego’s reminiscence of the 1948 whistle stop here by President Harry Truman. • March 20, 2008 COUNT
THE VOTES
On March 17, 83rd DA candidate Jesse Gonzales filed a “Motion for Prompt Vote Count in 394th District Court through his attorney Rod Ponton. The filing includes the following highlights — “MOTION FOR PROMPT VOTE COUNT
………………………………………………………………………………………………………………… 3. The only race on the ballot in Brewster County which outcome is dependent upon the vote total in Brewster County is the race for 83d District Attorney. 4. It is believed that all votes cast in the March primary in Brewster County are valid and still exist. They areimpounded under court seal. The problem in this case is that mistakes and blunders were made in the administration of the election, in handling ballot boxes, in counting votes, and other errors by election officials. Relator does not assert, at this time, that there are any illegal votes. II.
5.
This is NOT an election contest. This is a suit for injunctive relief,
seeking court aid to ensure a prompt and complete count of all votes
cast in the March 4 Brewster County primary election. This Honorable
Court has authority and jurisdiction to order a count, pursuant to Sec.
66055, TEX. ELECTION CODE.COURT AUTHORITY. 66.055(a) if the precinct election records
are not
delivered by the deadline prescribed by Section 66.053 (c), on
application by a member of the canvassing authority, a district judge
shall order the precinct election records to be impounded.
(b) The district judge shall supervise the activities necessary to complete the count, prepare the precinct returns, and distribute the records. 6. This Court has Ordered that all election materials and records be impounded, and they are now kept in the office of the Brewster County District Clerk. This Court may now Order a count of the votes. This Court has supervisory authority to ensure that a proper vote count is made. 7. Additionally, this Court has general authority to issue a write of mandamus to Order that a public official perform a ministerial duty, i.e., that the Brewster County election administrator Jerri Jones perform a full count of the March 4 primary under appropriate safeguards to ensure that there will be public confidence in the result. 8. Section 273.081, Texas Election Code, provides that a person who is being harmed or is in danger of being harmed by a violation or threatened violation of this code is entitled to appropriate injunctive relief to prevent the violation from continuing or occurring. This action is brought to prevent the return of incomplete results in the March 4 election, and it seeks to have complete results returned. III.
9.
Relator desires that all votes cast in the March 4, 2008 Brewster
County primary be counted promptly. The voters’ wishes should be heard.
The votes were legally cast. It has long been the law in Texas that all
votes cast should be counted....ALL VOTES SHOULD BE COUNTED. IV. THE LAW
12.
In Simmons
v. Jones, 838 S.W. 2d 298,
(Tex. App.-El Paso, 1992), an election contest was brought on the basis
that the presiding judge’s signature was not placed on the back of each
ballot at the polling place. This
provision has been held to be directory only and that ballots could be
counted notwithstanding that they were not signed by the presiding
judge. Davis v Walcott, 96 S.W. 2d 817 (Tex. Civ. App. San Antonio,
writ dism.)… Without any mandatory language, we reach the same result
in regard to a regular ballot as the court reached in Davis v Walcott concerning absentee
ballots. This result is in accordance with our holding in Kelley v Scott, 733 S.W. 2d 312 that
performance of duties imposed upon election officials is directory,
unless made mandatory by statute.
13. In Stotler v Fetzer, 630 S.W. 2d 782 (Tex. App. Houston [1st Dist.] 1982), an election contest, the contestant sought to throw out absentee ballots not entered into the voting machine by the election judge during voting hours. The court noted that: In this case the contestant’s complaints
are directed at the election judge, not the voter, in that the ballots
were not entered upon the voting machine between 2:00 P.M. and 3:00
P.M., and that they were not entered upon the voting machine prior to
7:00 P.M. Heretofore the courts have held that the provisions of the
election code will be interpreted as directory where they regulate the
conduct of the election officials unless otherwise specifically
provided. Day v Crutchfield,
400 S.W. 2d 377 (Tex. Civ. App.. Texarkana 1965, writ. Dismissed); City of Roma v Gonzalez, 397 S. W.
2d 943 (Tex. Civ. App.-San Antonio 1965, writ ref’d n.r.e.). In this
case it would indeed be harsh to disenfranchise twenty-nine voters for
the act of an election official over whom they had no control. We hold
that Art. 7.14 Sec. 7 and Art 2.01 of the election code, directing an
election judge when to enter absentee ballots on a voting machine, are
directory.
Stotler v Fetzer at 785. 14. See Prado v Johnson, 625 S.W. 2d 368 (Tex. App. San Antonio, 1981)(election procedures not followed in delivery of ballots to election judges, canvassing board did not follow procedures) “The general rule is that the performance of duties placed upon the election officials are directory, unless made mandatory by statute, while those placed upon the voters are mandatory.” See Des Champ v Featherston, 886 S.W. 2d 536,(Tex. App. Austin 1994)(election code procedures not strictly followed, only directory provisions of election code, election will not be set aside for violation of directory provisions unless they prevented voters from exercising their right to vote). See Day v Crutchfield, Tex Civ. App. Texarkana 1965)(stub box mishandled; statutes regulating the manner of holding elections are merely directory and a departure from their provisions will not invalidate an election unless such departure or irregularity has affected or changed the result of the election.) See City of Roma v Gonzalez, 397 S.W. 2d 943 (Tex. Civ. App. San Antonio(stub box mishandled): “The violation of this directory duty by
city officials, being something beyond the control of the voter, should
not invalidate his vote….it has been said many times by our courts that
the object of every popular election is to ascertain the will of the
qualified voters in the area to be affected thereby upon the issue or
issues submitted to them….The rule is that statutes regulating the
manner of holding an election are merely directory, and a departure
from their provisions will not, ordinarily, invalidate an election,
unless such departure of such irregularity have effected or changed the
result of the election.
15. Therefore, it is seen that the attempted canvass result, which did not include all votes lawfully cast in Brewster County, was wrong, and in error. All votes lawfully cast in Brewster County should be included in the final tally and canvass. Mistakes and blunders by Brewster County election officials deal with directory provisions of the Texas Election Code, and should not act to deny the counting of a validly cast vote. All votes cast should be counted. The mandatory provision is to let all votes count. ………………………………………………………………………………………….
18. Therefore, Relator Gonzales proposes to this Honorable Court, that it determine, at the hearing scheduled for March 28, 2008, whether any of the mistakes or blunders by Brewster County officials have tainted or invalidated any votes lawfully cast If not, then it is proposed that the Court Order a new, final count of all the votes cast in the March 4 Brewster County primary election, under terms and conditions to be set by the Court, including that a neutral party (such as Taylor) supervise the new count, and that a computer expert determine if electronic votes cast are reliable. Thereafter, a new canvass may be submitted to Austin. 19. However, if the Court determines that the mistakes and blunders render a new final count unavailable or unreliable, then the Court is requested to Order that a new election be conducted. PRAYER
WHEREFORE, PREMISES CONSIDERED, Jesse Gonzales, Relator herein,
respectfully prays that:A. The Court appoint a computer expert to examine the electronic voting machines; B. The Court appoint a neutral third party to supervise the new count; C. The Court determine whether any mistakes or blunders by Brewster County officials have invalidated any votes; D. The Court Order a new count; E. The Court Order that the new Count be the new final result of the Brewster County March 4 primary election, and that the result be canvassed by the Brewster County canvassing authority and submitted to the appropriate officials in Austin; F. that the Court enter appropriate orders so that the election records may be preserved for the criminal investigation, (Cause No. 8699), but also be made available for purposes of counting the votes, and appropriate discovery in the civil case, Cause No. 8698; G. the relief requested may be granted by Order or by Mandamus, as the Court deems appropriate; H. For such other and further relief, in law or in equity, to which Plaintiff may be justly entitled……” Attached to the motion is Brewster County Democratic Chairman Dale Christophersen’s “Memorandum to Accompany Canvass Results” dated March 14, 2008. It is that canvass of votes, approved for submission to the state authorities, which is enjoined (stopped) by Jesse Gonzales’s lawsuit because the canvass does not include all the votes. • March 17, 2008 A Very Merry Unmeeting By Jack D. McNamara No, no, no, NO! It is NOT Box 13 in Brewster County, according to the Brewster County Elections Committee who met behind closed doors today, March 17, for almost an hour. We refer of course to Topic A here in the Big Bend. On Election Day, March 4, three ballot boxes in the Administrator’s vault were “missed” in the counting of the votes. The boxes were “discovered” on Friday, March 7 by the Elections Administrator Jerri Dale Jones. Some days afterwards the boxes were opened and counted with no election judges present. On Monday, March 10 County Judge Val Clark Beard praised the work of Jones in the open session of Commissioners’ Court. Jones was out of the office on the Monday and had apparently told no one of the “discovery.” Later that afternoon Judge Beard was informed by Democratic Chair Dale Christophersen (who was informed by me). After being so informed Judge Beard’s opinion of events changed somewhat, according to numerous rumors from the courthouse. By Tuesday morning the opened boxes had traveled across the street from the Old Post Office where the voting office is now to the courthouse office of County Attorney Steve Houston. Safe in the courthouse, Houston’s office door was closed and no one answered the door while Judge Beard, Election Administrator Jones and Houston counted yet again, apparently. We can say “apparently” because whatever happened there soon exited from the courthouse “news release,” the first public statement on the matter since the March 4 election. That press release attributed to Jesse Gonzales, Jr. a gain of enough votes to give him a slim lead over Frank Brown. But County Attorney Steve Houston was ever on the alert. He arranged and participated in a conference call on Thursday among the two party chairs, Democrat Christophersen and Republican Hal Craig. Somewhere in that conversation ON A TELEPHONE the assembled voting authorities concluded that all the votes of the three boxes were voided, murdered, invalidated, deligitimized or whatever words one wants. Not only those votes but all the election machine votes in Precinct 4 were also void because the election judge didn’t sign a paper transmitting the votes. Also, six “provisional” ballots (which were in some way defective and reviewed but accepted Wednesday March 12) were killed. The review was conducted by Christophersen, Craig and Jones. And as we described below the Democrats met Thursday and certified the canvass without counting the murdered votes. The following morning, Friday, March 14, Jesse Gonzales sued the Brewster County Democrats and Sixth Judicial Distinct Presiding Judge Stephen Ables immediately issued a restraining order which halted the canvass. Judge Ables set a hearing for March 28 here in Alpine. Later Friday Steve Houston submitted a motion asking the judge to impound the election records under a provision in Chapter 273 of the Texas Election Code for a criminal investigation. That is, a full 10 days after 3 precincts were not counted, meetings were held to improperly count “provisional” ballots, and the electronic voting machines had gone berserk in Brewster County — perhaps something is wrong. This morning Gonzales’s attorney Rod Ponton filed a motion requesting that any criminal investigation in this matter be referred to the Texas Attorney General; not to either DA Frank Brown or his employee Steve Houston. Ponton states that Houston advises both Judge Beard and Administrator Jones. With his motion, Ponton filed seven affidavits from local Brewster County residents indicating some slight loss of confidence in Brewster County officials. In that mood the Brewster County Elections Commission met at 2:30 p.m. March 17, Monday in the commissioners meeting room. The commission is composed of County Judge Beard (chair); party chairs Christophersen and Craig, Elections Administrator Jones and County Clerk Berta Martinez and Tax Assessor Betty Jo Rooney. Except for Martinez and Rooney the reader will recognize the participants’ names as persons somewhat informed or involved in the brouhaha. The agenda called for a “General Review” of “problems,” but Judge Beard said that a telephone conference with attorney Greg Hudson in Austin convinced her that the pending litigation rendered the eagerly- awaited review not appropriate. So, about three minutes into the meeting the commission took up Item 2 — “Personnel Issues related to conduct of March 4th Primaries including performance during handling of remote early voting boxes … We say “took up” but of course the “issues” were scheduled “A. Executive Session Pursuant to Section 551.074 Government Code … to discuss the appointment, employment, evaluation, reassignment, duties, compensation, or dismissal of a public officer or employee … Judge Beard told Jones to stay for the executive session. The Commission remained in executive session for almost an hour. When they exited Judge Beard cued Christophersen and Craig. Craig read a prepared statement which acknowledges some issues were likely to be resolved by a judge in a court. Certainly there were “errors” but nothing credibly “corrupt” and the commission therefore supported their loyal employee Jones. Hear, hear. Circle the wagons. Your government in action. Christophersen moved to adjourn. After less than 10 minutes on the public record the responsible election administrators dispersed. No questions were taken. Nowhere in the courthouse or the Old Post Office are the election results posted. Nor does the media report the election precincts results. So you see, this is NOT Box 13. LBJ told me so. • March 15, 2008 A Lawsuit Has Been Filed By Jack D. McNamara As we reported yesterday, March 14 below (“The Democratic Nominee for District Attorney Is Unknown”), events are moving quickly here in Brewster County. On Thursday evening the Brewster County Democratic executive committee voted reluctantly to certify the March 4 primary results — LESS the votes of three ballot boxes “found” hiding in the voting offices safe (Precincts 3, 6 and 7 early vote) and LESS the results of the machine vote in Precinct 4 on March 4 and LESS the provisional ballots, 6 of which were accepted on March 12. By 9 o’clock March 14, DA candidate Jesse Gonzales, Jr. had filed a lawsuit in 394th District Court, Alpine, Brewster County (Cause No. 2008-3-B8698-CV). Gonzales asked for a Temporary Restraining Order and Injunction against Democratic Chair Dale Christophersen and Brewster County Election Administrator Jerry Dale Jones. Gonzales asked the Court to restrain the defendants from filing inaccurate results of the primary immediately. He also asked that the Defendants “be temporarily enjoined from opening, removing, tampering with, moving or in any way destroying the ballot boxes in the possession of either Defendant.” |