Utterly ridiculous, and will hopefully be treated that way.
Rep. Jon Rosenthal
A losing Republican candidate for the Texas House of Representatives is challenging his defeat and asking the Legislature to void the results of the election.
Republican Mike May this week filed what’s known as an election contest with the Texas secretary of state’s office, citing reports of scattered paper ballot shortages at “numerous” polling places on Election Day. May lost to incumbent Democrat Jon Rosenthal by more than 6,000 votes in his bid to represent House District 135 in the Houston area.
The secretary of state’s office on Tuesday delivered May’s petition to House Speaker Dade Phelan, who can refer the contest to a committee for investigation and appoint another member of the House as a “master” to oversee discovery and evidence related to the contested election. If they side with May and void the results, another election would be required to decide the district’s representative. The House can also toss the contest by declaring it “frivolous.”
Election Day issues once again pushed Harris County’s election officials back under scrutiny, including from the state’s Republican leadership. Voting in Harris County was extended by court order for an extra hour after about a dozen polling places were delayed in opening. The county’s elections administrator Clifford Tatum has also acknowledged issues with insufficient paper ballots at some polling places, though he said election staff was dispatched to deliver additional ballots.
The fumbles prompted a lawsuit by the Harris County GOP, which alleged voters were disenfranchised by the paper shortages. The Harris County district attorney has since launched an investigation into allegations of “irregularities.” The Texas Election Code includes criminal penalties for various violations, including illegal voting, the unsolicited distribution of mail-in ballot applications by local election officials and the failure to distribute election supplies.
In his petition, May argued the results of the election were not the “true outcome” because election officials “prevented eligible voters from voting.” May did not immediately return a request for comment.
On Friday, Rosenthal’s camp framed May’s election contest as part of a national trend to “deny the outcome of an election when you lose.”
“This race demonstrated one of the largest percentage point differences in Harris County, it wasn’t even close,” Rosenthal’s campaign manager, Bailey Stober, said in a statement. “The opposition presented himself and his positions and was rejected by voters overwhelmingly. That is how democracy works.”
The statement came soon after Harris County Attorney Christian D. Menefee criticized the contest as an effort to “call into question the 2022 election in Harris County and lay the groundwork to force a redo.”
It’s unclear how Phelan will handle the contest. His office declined to comment Friday. But Menefee said he was hopeful that Phelan would throw out the challenge.
“And I trust that he will ensure a fair process before impartial legislators, without interference from the state leaders and other elected officials who have a history of making baseless claims against Harris County elections,” Menefee said.
The House took on a similar exercise in 2011 following a challenge by Travis County Republican Dan Neil, who, after a recount, lost to state Rep. Donna Howard, D-Austin, by 12 votes. The House eventually upheld Howard’s win. She remains in the Texas Legislature.
Up till then, the Legislature had seen 113 election contests since 1846, according to the Texas Legislative Council, an in-house legal and research arm of the Texas Legislature. The losing party, however, had not managed to turn the outcome of the election at least in the last 30 years. In the one case in which the House ordered a new election in 1981, the winner of the initial contest was again elected.
There was also an election contest following the 2004 win by Rep. Hubert Vo, then a challenger, over then-Rep. Talmadge Heflin. The contest examined a number of votes that Heflin claimed were illegal, including at least one vote cast by a non-citizen (a Norwegian national who stated that he voted straight ticket Republican), upheld most of them, and in the end Vo still won. In both cases, the number of votes separating the winner and the loser was miniscule. There’s no planet on which this challenge even remotely resembles those two.
The Chron adds some context.
Larry Veselka, a Houston lawyer who represented Democrat Hubert Vo when Vo’s 2004 election to the Texas House was challenged by his Republican opponent, said the legal standard for voiding an election result and ordering up a redo typically requires “clear and convincing” evidence that would be near-impossible for May to obtain.
“It’s too speculative,” said Veselka, who previously served as chair of the Harris County Democratic Party in the 1980s. “I mean, how do you say who walked away at this hour or at this one location where they were short of ballots? … Have they gone out and found people that can credibly swear, I left and didn’t vote somewhere else?”
May’s election challenge sparked outrage among Houston Democrats, including Rosenthal, who called it “more a political stunt than any type of serious complaint or concern.”
Harris County Democratic Party Chair Odus Evbagharu, who previously served as Rosenthal’s chief of staff, said the petition “reeks of Republican desperation.”
“The Republican candidate is attempting to alter a certified election with this baseless charge,” Evbagharu said. “Clearly, they’re running out of options in the election-attack playbook.”
Mark McCaig, a Houston attorney and conservative activist, also condemned the election contest in a tweet.
“There were HUGE problems with the election in Harris Co, but frivolous election contests like this are a gift to Dems (which is why Rosenthal is eating it up),” McCaig tweeted. “The focus needs to be on the very real problems that occurred.”
Jason Vaughn, former president of Houston Young Republicans, added: “I’m highly involved in Republican politics in Harris and didn’t even know this guy existed. The district was literally drawn to be a Democrat district.”
To put a few numbers on this, if you threw out every vote cast in the HD135 race on Election Day, Rosenthal still wins by 4,161 votes. Mike May collected 6,055 votes on Election Day. If you doubled that, if you somehow accept that the problems at a handful of voting locations prevented as many people who voted for him on all of Election Day from voting for him at all, without anyone who might have not voted selecting Rosenthal instead, he would still lose by 131 votes. This doesn’t come close to passing the sniff test. The only rational response by Speaker Phelan is to declare it frivolous. We’ll see. A statement from Rep. Rosenthal is here, and from County Attorney Menefee is here.
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