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Zerick Guinn

No time for trial in Guinn election lawsuit

I think this really is the end of the line for any actions that could affect the November 2012 ballot.

Zerick Guinn

The question of whether Chris Diaz’s 17-vote run-off victory for the Democratic Precinct 2 Constable nomination was legitimate will fade into Harris County history unresolved after a state district judge Tuesday ruled insufficient time remains before the November election to settle the issue at trial.

Precinct 2 Constable Sgt. Zerick Guinn had sought a trial in 269th state District Court to prove irregularities in a runoff that handed the primary victory to his opponent. A recount of election results still showed Diaz had won.

After hearing testimony from Harris County Clerk Stan Stanart and other election officials, visiting state District Judge Suzanne Stovall ruled that not enough time for a trial and possible appeals remained. “I hate it,” she said of her ruling, “but that’s what the law requires.”

“I feel that we could have proved the case,” Guinn’s attorney, J.W. Beverly, said after the judge’s ruling. Beverly conceded that preparation for filing the law suit had “taken longer than we had hoped.”

The suit was filed four weeks after the recount was completed. Obviously, the abnormally deferred primary and runoff schedule had an effect as well. I still don’t think anything would have come of this, but it’s a shame to have the clock run out before all the questions could be answered.

Guinn files suit over Constable Precinct 2 runoff

I doubt it’ll make any difference, but it’s his right.

Zerick Guinn

The loser of the Democratic runoff for Harris County Precinct 2 constable has sued winner Chris Diaz, contesting the election result.

Zerick Guinn said he thought a recount he requested in the race would have involved a more thorough investigation, and said he filed the suit to get the clarity he has been seeking since an Election Day mistake in the County Clerk’s office incorrectly showed him to be comfortably ahead when, in fact, he was behind. Guinn lost to Diaz by 17 votes.

“I filed it just to make sure the vote tallies were correct and that the people of the precinct get to choose who they want for constable,” Guinn said Monday. “I’m not looking for anything other than the truth.”

The Precinct 2 patrol sergeant’s suit claims some Diaz supporters were ineligible to vote, were fraudulently or improperly registered, or cast mail ballots improperly. It also alleges some of his own supporters were not allowed to vote or that their votes were not counted “as a result of fraud, illegal conduct or mistake.”

See here, here, and here for some background on the irregularities and the recount process. We’ve seen some races decided by razor-thin margins in recent years – I’m specifically thinking of the Vo/Heflin race of 2004 and the Howard/Neil race of 2010 – and despite allegations of widespread fraud and other malfeasance in each, very few actual problems were found during the election contests. Those that were found were pretty much all honest mistakes, and they generally benefited the loser about as often as they helped the winner. I’ll be quite surprised if anything is different here. As such, I tend to agree with the assessment of Diaz’s attorney Buck Wood, who said that the 17-vote margin in this race would be a tough obstacle to overcome.

Diaz still leads after recount

No surprise.

Former Jacinto City Mayor Chris Diaz still appears to be the Democratic nominee for Harris County Precinct 2 constable following a Monday recount in his razor-thin runoff with Precinct 2 Sgt. Zerick Guinn.

Diaz’s 17-vote margin is unofficial, county Democratic Party Chairman Lane Lewis said, adding the party plans to finalize the results Saturday.

Diaz actually gained a vote after the recount. Unless Guinn wants to pursue this in the courts, the matter is basically settled. Stace has more.

That’s the basic news about this. Do you know how the county handles a recount like this? I had no idea, until Dan Wallach, who wrote that guest post on Tuesday, sent me the following eyewitness account:

Dan Wallach

I was invited by the Harris County Democratic Party to be an observer of the Guinn-Diaz recount, which ran all day on Monday. This race, in the Democratic primary election, was to select the Democratic candidate for Constable, Precinct 2. There were some procedural errors during the initial tally. At one point, the two candidates were separated by all of 3 votes out of just over 11 thousand cast. By the time they included the absentee ballots, roughly 28% of all the votes in the race, the margin of victory was 16 votes.

I showed up at the recount with my camera, hoping to take lots of great pictures. Several people promptly came running at me saying that it was illegal to take pictures during a recount. (Dear lawyers who are reading this: really?) Instead, I’ll just have to do my best to describe what I did and what I saw.

For starters, Harris County uses the Hart InterCivic eSlate, a paperless electronic voting system, which stands out from other DRE-type systems by having a local network in the polling place. For each group of eSlate terminals, there’s a single controller (a “Judge Booth Controller” or JBC) that connects to the eSlates. Three copies of each vote are recorded: one in the eSlate where it was cast, one in the JBC’s internal memory, and one on a PCMCIA flash card (a “mobile ballot box” or MBB) that’s removable from the JBC. If you want to learn a lot more about the eSlate architecture and its security vulnerabilities, you might enjoy the California “Top to Bottom” report, which I co-authored in 2007.

On election night, the process is that they remove the MBBs from the JBCs and use computers to read them and tabulate the data centrally. Part of this process is for the centrally-tabulated data to then be reported on the Election Day Results webpage, or in this case, misreported. It wasn’t the tabulated results that were wrong, just the reported results. That’s another story, although it would be nice to have a detailed explanation of what went wrong.

If the initial counts were done from the MBBs, how about the recount? For this, they used the JBCs: 115 of them were sequestered for the recount, each connected individually to a single computer that copied their contents. (This computer runs Windows 2000, the only “certified” configuration available; at least there was no network connection.) All of this occurred before the recount itself began. No party or candidate representatives witnessed this part of the process. Johnnie German, the county’s administrator of elections, told me that the process took five hours and needed to be done in advance so the recount could complete on time. More on this below.

The recount was an involved process. There were three and later four tables of counters. Each table had five people. Each table gets a stack of every paper ballot for a given precinct which they then tabulate. In the case of absentee ballots, these were original, hand-marked papers. In the case of eSlate-cast ballots, these were printed on site by a laser printer from the aforementioned computer that collected JBC data. The tabulation process has one person, in the center, who picks up a ballot from the stack and reads out who got the vote. On this person’s side are two people (representing the candidates) who double check this. Across the table are two separate people who keep count. With this many eyeballs on the task, the inevitable errors are caught. When a stack of ballots was completed, everybody at the table would agree on a summary sheet, they signed it, and it came over to where I was sitting.

Our table had four people: myself, the election administrator, and one observer for each candidate. I picked up each stack of ballots and called out the precinct number and totals. The election administrator typed those numbers into an Excel spreadsheet. The observers made sure we got the numbers right.

The results? Unsurprisingly, for all the eSlate-cast votes, the hand tabulation exactly equaled the original machine tabulation. For the absentee ballots, we had one precinct with single absentee ballot that somehow didn’t show up for the recount. The election administrator made a phone call to the downtown site, where absentee ballots are kept in a vault, and arranged for somebody to go dig out that ballot and bring it back to us. (That particular ballot was an undervote, so it didn’t impact the result.) We also discovered a precinct that had an extra absentee ballot that somehow wasn’t tabulated at all in the initial machine-scanned tally. Where did it come from? Why wasn’t it counted beforehand? We don’t know. (This ballot favored Diaz, increasing his lead from 16 to 17 votes.) Otherwise, there were no discrepancies or changes to the election outcome. The process started at 8am and ended at 4pm with a one-hour lunch break.

What’s interesting is what we didn’t do in the recount. There was no attempt to audit the original electronic systems, perhaps looking for unusual behavior in the original tallying systems’ logs, or perhaps comparing the in-person poll books or absentee envelopes against the number of cast votes. We didn’t have access to the scanned ballot images, so there was no opportunity to do any sort of risk limiting audit (comparing the scanned ballot images to the physical ones to make sure they’re the same). Also, the only way to get electronic data out of a Hart InterCivic tallying system is in PDF format (example results). There is no way to get all the raw data in a format that’s convenient to bring back into a computer for subsequent analysis.

As I mentioned above, the JBCs’ data was downloaded in advance, giving us no opportunity to observe this process. So far as I could tell, the boxes that hold the JBCs have no security seals, which could have at least provided some evidence of chain-of-custody maintenance. Absentee ballots, for contrast, are transported in plastic tubs with numbered plastic security seals, and there’s a process for documenting those numbers when the seals are broken. A corresponding process for JBCs would be a good idea to adopt.

I’m also a bit sad that we didn’t have a counting scale that we could use in the recount. In addition to enabling clever audits, we could have used them to simply double check the number of papers in each stack of ballots. Apparently the election warehouse does have one, but we weren’t allowed to use it, even to double check our manual tallies. (Dearest election lawyers: really?)

One lesson from this is that political candidates understand the concept of a recount, and there’s plenty of election code that talks about what a recount entails. What’s less clear is how well the election code can bend to support the idea of audits. Printing sheets of paper corresponding to electronically cast ballot records, then counting them by hand, is both wasteful of resources and unlikely to discover anything valuable. Instead, I’d like to see counties offer a menu of options (at different prices, of course) to the candidate requesting a recount. A candidate might then choose to pay for a full tally of absentee ballots and for various audits to reconcile the totals. If a candidate wanted to double-check a sample of the eSlates, to make sure they had the same votes as in the election night tallies, that should be easy and cheap to do.

Another important lesson is that future voting systems (electronic or otherwise) need to be explicitly engineered with recounts and other sorts of audits at the core of their functionality. Of course, we also want the sorts of voter verifiability security properties that DRE systems like the eSlate lack, but this experience made it clear to me that we have a lot of room to improve basic recounting and auditing procedures. At the end of the day, the goal is to convince the losing candidate that he or she genuinely lost. I don’t know whether this particular candidate was convinced.

So now we know, and I thank Dan for the detailed information. I like the suggestions about enabling audits and giving candidates different choices for how to conduct recounts. What do you think?

Guinn seeks recount

Can’t say I blame him.

Zerick Guinn

Democratic Precinct 2 constable candidate Zerick Guinn has requested a recount in his primary runoff against Chris Diaz, who won by 16 votes after incorrect election results posted online showed Guinn with a commanding lead late on election night.

[…]

“This is not an example of a candidate with sour grapes. This is a candidate who was involved in an election where the individual in charge of counting the ballots made numerous mistakes,” said [HCDP Chair Lane] Lewis, referring to County Clerk Stan Stanart. “This is an example of a candidate who wants to make sure everything was done correctly.”

Lewis said he was not sure what Guinn’s campaign would need to pay for the recount, but estimated it at about $2,000.

I’d have done the same in Guinn’s shoes. I doubt a recount will make a difference because they very seldom do, but I’d still want to go through the motions after what happened on the night of the 31st. We’ll see how it goes.

Diaz has larger lead in Constable Precinct 2 race

Sixteen votes. Hey, it counts.

After provisional ballots were tallied Tuesday, [Chris] Diaz’s tally stands at 2,078, while [Zerick] Guinn’s is at 2,062, said Jill Moffitt, Democratic judge of the central count.

“I’m glad that they’ve finally come up with the final resolution,” Diaz said, thanking his supporters and volunteers. “I’m very happy with the final count and, hopefully, everything will work out in the future. We’ll move on the November election and see how we can fare in that.”

That’s up from the three-vote lead Diaz had after the County Clerk finally posted the correct tallies on Wednesday morning. It was pretty clear that the provisional ballots would be good news for Diaz.

Chris Diaz

Monday the Democratic ballot board met to determine which of the overseas ballots and provisional ballots cast on Election Day should be tallied. Tuesday those votes will be counted, along with GOP results (though no Republican races are nearly as close as Guinn and Diaz’s).

Of the 118 Democratic provisional ballots examined, said ballot board chair John Behrman, 92 were accepted. Of those, said former County Commissioner Sylvia Garcia — who was in attendance as a poll watcher on Diaz’s behalf — 16 were determined to be cast by Precinct 2 voters.

And of those 16, 14 appear to have been cast in and around Jacinto City, Diaz’s base.

“I would assume that they are his voters, but I could be wrong, you never know,” said Guinn, who remained upbeat. “Everyone who voted, who supported me or my opponent, I’m excited that they’ll have an opportunity to be excited about who they chose in the race. What’s important to me is that people’s votes count.”

Indeed, though there are still some questions to be answered about that. Be that as it may, the results will be canvassed on Thursday, then it’s up to Guinn to decide whether or not to pursue things further. For now, it looks like Chris Diaz has won the runoff and will be the Democratic nominee for Constable in Precinct 2 in November.

Now you see those votes, now you don’t

Tuesday was not a good day for the County Clerk.

Zerick Guinn went to bed late Tuesday, believing he had won the Democratic nomination for Precinct 2 constable by a comfortable margin. By morning, he had lost the race by three votes.

An incorrect vote tally in that race, posted for more than two and a half hours on the Harris County Clerk’s website, was one of several problems that plagued Tuesday’s runoff elections.

[…]

Stanart acknowledged he and his staff did not catch that the posted tallies were wrong. He spoke with Guinn Wednesday morning and the two have scheduled a meeting Thursday. The problem arose, Stanart said, in merging two databases of data from the machines that tally the votes to the machine that produces a report of the results.

In Guinn’s race, the clerk’s website showed him leading Chris Diaz 2,695 votes to 1,908 votes shortly after 10 p.m. When final results were posted at 12:43 a.m., however, Guinn’s reported vote total dropped by 634 votes, placing him three votes behind Diaz, at 2,064 to 2,061.

Stanart said he saw problems in a not-yet-published report of GOP results shortly before midnight, and began running both parties’ results from scratch. Stanart said he initially thought the problem was isolated to the report he had just run on the computer he was using, and, thus, did not pull the faulty numbers off the county website and did not inform Democrats because their numbers were being generated by a different computer.

By late Wednesday, Stanart said, he had learned both parties’ results online from 10:12 p.m. until at least 12: 43 a.m., were wrong, though he stressed only the outcome of Guinn’s race had changed.

The early version of this story is on Houston Politics. The Chron reported the wrong result based on that 10:12 PM update, as did I. You can see the erroneous 10:12 PM update here, and the 12:43 AM update here. While only the Guinn-Diaz race outcome was affected, it wasn’t the only one to show funny numbers. This is what you would have seen on the Democratic results page Tuesday night and Wednesday morning:

A new version of the results as of 4:01 PM fixed that error. I called the Clerk’s office prior to that to ask about this, and they assured me that they were aware of it and that it was the result of the same problem that was in the Constable race. They also told me that the error occurred not in the counting of the votes but in the reporting. That agrees with what Stanart says in the Chron story, so there you have it.

Regardless, these are still unofficial results until the HCDP canvasses them. In the meantime, there are still provisional ballots and some overseas ballots to be counted, so given the extreme closeness of the race, the outcome is still in doubt. A recount and more litigation are possible as well. Campos and Stace have more.

UPDATE: PDiddie adds on.

2012 Democratic primary runoffs

All state results here. Best news of the night was Paul Sadler‘s easy win. Can we please raise some money for this guy?

Congressional results: James Cargas in CD07, Pete Gallego in CD23, Rose Meza Harrison in CD27, Marc Veasey in CD33, and Filemon Vela in CD34. I’m delighted that three quality members of the Texas Democratic legislative caucus will have a shot at serving in Congress next year. As for Filemon Vela, I’m still suspicious of the guy, but we’ll see how it goes.

In the Lege, Gene Wu had another strong showing in HD137, and I feel very good about his chances to win this Dem-favored-but-not-a-lock seat in November. Parent PAC didn’t have any skin in the runoffs, but Annie’s List did, and they went one for two, as Nicole Collier will succeed Veasey in HD95, but Tina Torres lost to Phillip Cortez for the nomination in HD117. That’s a critical race in November.

The biggest surprise of the night was also some good news, as Erica Lee romped to a huge win in the HCDE Position 6, Precinct 1 runoff. She won with close to 75% of the vote, so maybe, just maybe, that will be enough to convince anyone who might file another lawsuit that they’d be wasting their time. I truly hope this is the end of it, because this is by far the best possible outcome. Congrats to Erica Lee, to Alan Rosen in Constable Precinct 1, to Zerick Guinn in Constable Precinct 2, and to all the other winners last night. Onward to November, y’all.

UPDATE: Litigation is coming for the HCDE election.

The Department of Education has filed a federal lawsuit seeking to void the May primary and Tuesday’s runoff. Lee, Harris County and both political parties want to dismiss the case, which is ongoing.

Johnson said he had planned legal action on behalf of the 1,400 excluded voters whether he won the runoff or not.

“The whole point of this was to make sure the disenfranchised voters had a voice,” Johnson said.”

I guess it was too much to hope for otherwise.

UPDATE: When I went to bed last night, Zerick Guinn was leading by what I thought was a safe margin. Apparently, not safe enough as today Chris Diaz is shown as the winner by 3 votes. I smell a recount coming.

UPDATE: The plot thickens. Here’s the 10:12 PM update from the County Clerk website, which the last update I saw before I went to bed. See how Zerick Guinn has 2695 votes? Now here is the 12:43 AM update in which Guinn has mysteriously dropped to 2061 votes, which puts him behind Diaz and his 2064. How does that happen?

Precinct 2 Constable runoff overview

The Chron does an overview on one of the two Democratic Constable runoffs.

Zerick Guinn

The Democratic runoff for Harris County Precinct 2 constable asks voters to decide which type of experience they value more: law enforcement chops or time as a public administrator.

The 10 Democrats who sought the open Precinct 2 seat, created when incumbent Gary Freeman announced his retirement, have been whittled to two, with Precinct 2 Patrol Sgt. Zerick Guinn and former Jacinto City mayor and Precinct 3 reserve deputy Chris Diaz still standing.

Chris Diaz

The winner of their July 31 runoff, for which early voting starts Monday, will face Republican Chris McDonald, a Baytown police lieutenant, in November. Precinct 2 runs along the west side of the Gulf Freeway before hooking north, straddling the Houston Ship Channel between Loop 610 and Beltway 8.

Guinn, who has held five roles during his 16 years with the precinct, took 33 percent of the vote in the May primary to Diaz’s 17 percent.

[…]

Freeman called both candidates “good guys,” but he has endorsed Diaz, noting that he approached him first. Freeman said Diaz stands the best chance of retaining the seat in a precinct that is now 65 percent Latino.

Unlike outgoing Constable Freeman, the Chron did not see fit to make an endorsement in this race, as you can see from their complete list of endorsements. Why they skipped this race after picking up the HCDE and CD07 runoffs is something I can’t explain. I don’t live in Precinct 2 and I don’t know much about these candidates, so I have no opinion on this race; if you live here, please leave a comment about who’s getting your vote and why. I will note that as far as Freeman’s comment about “retaining the seat” is concerned, Precinct 2 is pretty solidly Democratic; according to Greg’s Political Almanac, Bill White got 58.3% of the vote in 2010, and Rick Noriega got 60.2% in 2008. If this race is close in November, it’s been a very good day for Republicans.