Neil files for election contest in HD48

I suppose this was inevitable.

Republican Dan Neil is continuing his challenge of state Rep. Donna Howard’s razor-thin election night victory with an appeal to the Texas House of Representatives.

Neil, who trailed Howard by 12 votes after a recount earlier this month, filed a contest of those results with the secretary of state late Monday afternoon, the deadline for such a challenge.

The decision now falls to the House members, who must either determine the clear winner based on the evidence or send it back to the voters.

House Speaker Joe Straus will soon appoint a representative to lead the investigation as well as a committee to hear to the case and make a recommendation to the full chamber.

The vote of the House is the final word.

The House last heard such a case after Republican Talmadge Heflin, a former powerful committee chairman, contested his loss to Democrat Hubert Vo in 2004, said Jeff Archer with the Texas Legislative Council . Heflin’s appeal did not clear the committee.

Neil maintains that, of the 51,500 ballots cast in the western Travis County district, some were mishandled or lost, a handful of legal votes were discounted, and more than 1,900 ineligible voters participated.

There were a couple of other contests filed in legislative races in 2004, and one in 2008, but all were dropped before they were heard by the House. From what I can tell, the last time that an election contest was upheld was after the 1980 election. It should be noted that even if Neil wins his challenge, that doesn’t mean he gets to be seated. According to Section 241.220 of the Elections Code, “In an election contest in which the election is declared void, the house or committee, as appropriate, shall include in its judgment an order directing the governor to order a new election.” In that 1980 case, the winner of the contest, who was a sitting Representative, lost the rematch election by a wide margin. Just something to keep in mind as we watch this unfold. My guess is that it’s more likely Neil withdraws his contest than he wins it, but we’ll see.

In the meantime, Howard has filed her response (called “special exceptions”) to Neil’s petition, which you can read here. Of interest, from the email that accompanied this:

“The level of detail in Mr. Neil’s petition does not match the seriousness of his claims. To demand the time and attention of the Legislature, I would have expected him to do more than just throw out a bunch of ideas to see what sticks,” said Howard.

The most notable deficiency was a vague reference to 1,900 ineligible voters. No specifics were given on who these voters are, whether or not they are registered to vote in House District 48, or whether or not they even voted in this election.

“The contestant in an election contest is required to provide specific information regarding the voters and votes in question. After reviewing what Mr. Neil has submitted, it is clear that he failed to perform the due diligence necessary to file a complete petition,” said Buck Wood who Howard has retained as her legal counsel.

Another puzzling allegation concerns those voters who live overseas, are eligible to vote only in federal elections, and cast a straight party vote. The contestant states that all of these ballots should be counted even though the voter wasn’t eligible to vote in the District 48 race.

“A closer inspection of these ballots reveals that Rep. Howard would have gained at least eight votes if straight ticket ballots from indefinite voters were tallied,” Wood said.

I haven’t seen Neil’s petition yet, but it is worth pointing out that there were some very specific claims of fraud made in the Heflin-Vo race of 2004. Most of them turned out to be bogus or unhelpful to Heflin’s cause, but they did identify specific voters whose ballots they said were invalid. One presumes Neil will either do the same or will drop the matter.

UPDATE: The Trib has more.

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