Judge throws out contested Pierce/Jones election

I was at an event on Wednesday night so I didn’t see this until later in the evening. I didn’t have the best night’s sleep that night, I’ll tell you.

A visiting judge from Bexar County on Wednesday ordered a new election in Harris County’s November 2022 180th District Court judicial race that Republican candidate Tami Pierce lost by just 449 votes to Democratic Judge DaSean Jones.

Jones is expected to appeal the ruling, his attorney, Oliver Brown, said.

In the wake of the 2022 election, 21 Republican candidates for county offices filed lawsuits challenging the results. Though Judge David Peeples previously upheld the results in all of the other cases, he has ruled that the true outcome of the Pierce-Jones race could not be determined given its significantly narrower margin.

“The court has found that 1,430 illegal votes were cast in the race for the 180th District Court and that it is not realistic or feasible to determine which candidate received those votes,” Peeples wrote.

Harris County Republican Party Chair Cindy Siegel called the ruling “monumental” in a statement on Wednesday.

“Judge Peeples’s decision to order a new election confirms what the Harris County GOP has been saying since 2022: The previous election administrations’ handling of our elections was beyond negligent, resulting in voters’ confidence in our elections being damaged,” Siegel said.

But Mike Doyle, the Harris County Democratic Party chair, defended the results of the election.

“There’s no justification for redos and redos just because election deniers aren’t happy with the results of Harris County,” Doyle said.

[…]

In his ruling, Peeples noted that much of the evidence presented by Pierce’s team was the same as what he reviewed in the Lunceford case.

In Pierce’s case, Peeples ruled that 606 voters clearly lived outside of Harris County and another 146 voters likely shouldn’t have counted because their residences were located in nearby city and didn’t specify their county. He determined those 752 votes “were not lawful and should not be counted.”

Adding to the tally, Peeples found another 231 votes did not include sufficient address information to determine if they should be counted, 40 mail-in ballots lacked a required signature and eight ballots weren’t mailed on time. He also deemed six provisional ballots unlawful, along with 445 votes that did not meet requirements related to photo identification.

The judge’s calculations also include the assumption that not everyone who cast ballots in November would have voted in this judicial race.

See here and here for some background. There’s a copy of the decision embedded in the story, give it a read. I’m going to try to keep this brief.

– As noted before, the actual closest election in 2022 was the one in which Democrat Porscha Brown lost to Republican Leslie Johnson for Harris County Criminal Court #3, by 267 votes. If the outcome in this race “can’t be determined”, then surely the same is true for that one. Is it too late for Porscha Brown to file suit?

– The 1,430 votes that Judge Peeples were ruled to be “illegal” were out of 1.1 million cast, or about 0.1% of the total. Most of them were deemed illegal because of paperwork errors, mostly but not entirely on the part of the voters, who didn’t correctly sign absentee ballots or fill out the form to explain why they didn’t have voter ID correctly, that sort of thing. We’d like elections to be run perfectly but elections are run by humans and humans can make mistakes (right, Gillespie County?) or judgment calls that a judge later disagrees with. I don’t know what to tell you, but if the standard is now that you not only have to win but also to cover the spread for it to count, we’re going to see a whole lot more elections that never seem to end.

– As noted, about 600 votes were tossed because the voters didn’t live in Harris County. I’m sure some of those folks had legitimately moved and just didn’t get around to changing their registrations and voting in their new locations because they didn’t realize they had to or didn’t get around to the former and so just did what they had done before or whatever. I have no quarrel with tossing those, but I will note that not everyone who says they’re living someplace else now is doing so permanently. Lots of people moved to alternate locations during the pandemic, some people move to temporary locations for various reasons, and some people maintain more than one home. In Texas, you get to register and vote in the place where you “intend” to live, as the likes of Karl Rove and State Sen. Brian Birdwell and of course Dave “Warehouses R Us” Wilson can attest. A voter who says “I don’t live there anymore” or words to that effect when they show up to vote is supposed to fill out a Statement of Residence, which is supposed to clear that up. Judge Peeples determined that in those 606 instances, they established they didn’t really live in Harris County. He looked at those records and I didn’t, but I have to wonder how many of those people really understood what they were saying. We have extremely loose residency requirements when it comes to candidates for office and certain VIPs, but for regular voters? Apparently not so much.

– Be all that as it may, to erase a 449-vote deficit, the eliminated votes would have had to have been 940-490 in favor of DaSean Jones, which is 65.7% of them. The one thing not noted in the opinion is any indication of who these voters were, specifically anything about them that might suggest which candidate they supported in that race. This was a 50-50 race, you would think that if these voters were a representative sample of Harris County, they’d have been roughly 50-50 on Jones and Pierce. If there’s evidence to suggest that they were disproportionately Democratic, I didn’t see it in the opinion.

– And here’s the thing, if we’re not making and supporting a claim that these voters were definitely a sizeable majority for Jones, then we actually can say that there’s little to no doubt about the election’s outcome. If these voters were a coin flip, as the voters whose votes were allowed to count were, then the odds that at least 940 of them out of 1,430 total would have voted for DaSean Jones is essentially zero. Don’t take my word for it, go try this Coin Flip Probability Calculator and see for yourself. It can’t quite handle it for 1,430 tosses – the formula involves exponentials and factorials, which means they get really really big really fast – but if you plug in 143 tosses and at least 94 heads, you get a probability of 0.01%, or one in ten thousand. If you double those figures to 286 tosses and at least 188 heads – same proportions, just a bigger sample – the odds fall to 0.00000563%, which is 5.63 out of 100,000,000, or one hundred million. It gets smaller from there, much smaller.

– Oh, and even if you knock down Jones’ lead from 449 to 128, which is what happens if you subtract the 321 vote net he got from the extra hour of voting that was later deemed to have been mistakenly ordered, you still need 54.47% of those 1,430 votes to have been Democratic (779 for Jones, 651. If we stick with the coin flip scenario, the odds of 545 heads out of 1000 tosses is 0.243%, which is less than three in one thousand. The calculator won’t let me try sample sizes bigger than 1000, so that’s as far as I can take it, but that already small number will keep going down. I don’t know how “clear and convincing” translates to legalese, but surely it needs greater odds than that.

– Somewhat weirdly to me, Judge Peeples adds the 321 net votes Jones gets from the inclusion of the extra hour of voting to the 1,430 votes he has deemed illegal to say that there was “a total of 1,751 votes that cast doubt” on the outcome. But that’s apples and oranges – that 321 figure comes from subtracting the known votes Jones and Pierce received during the disputed extra hour of voting. Peeples ruled that those votes counted, so they shouldn’t be included with the votes he didn’t count. If you want to consider the scenario in which those votes also don’t count, just subtract 321 from Jones’ margin, and leave the 1,430 figure alone. As noted above, even a 128 vote margin out of 1,430 isn’t quite the significant matter it may seem.

– Now, all this changes if the evidence shows that this was a heavily Democratic group of voters. The opinion doesn’t refer to any evidence of that, so I assume there isn’t any evidence to that effect. I find it really odd that this potential factor gets no mention at all. I don’t know what to say about that.

As noted, DaSean Jones is likely to appeal, so this may drag on for who knows how much longer. As a matter of law, I approve of that because this is a terrible precedent and I think there are some serious questions about the math Judge Peeples used. But there’s a part of me that wants to advise Jones to say “Fine, I’ll drop my appeals if we put this race on this November’s ballot in with the other judicial races.” I’d feel very confident about his chances of winning, whereas I expect that what Pierce and the Republicans want is a special election by itself on some random Saturday when people aren’t expecting there to be an election. (You know, like the HCAD elections.) What do you think would happen? The Trib has more.

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