The first trial challenging a Republican loss in the November 2022 Harris County elections has shifted to the defense phase. The defense began presenting witnesses after an unsuccessful attempt to have the case dismissed.
Former Republican Judge Erin Lunceford is seeking a new election for the 189th Judicial District of Harris County against Democratic Judge Tamika Craft, on the grounds that the Harris County Elections Administrator's Office allegedly mismanaged the November 2022 general election. The charge at the heart of the case is the claim that the Elections Administrator's Office undersupplied dozens of voting centers in Republican-leaning voting centers with ballot paper, with the result that thousands of would-be voters were turned away from the polls.
A five-month investigation by Houston Public Media found no evidence to support the idea that the administrator’s office was interfering with the conduct of elections by deliberately shorting election supplies to GOP-leaning neighborhoods, nor did it find any evidence that such shortages affected the outcome of most elections.
Lunceford's election was one of the closer contests, with only 2,743 votes separating Lunceford from Craft. Craft's attorneys noted in their opening statement that this was a larger margin of victory than any election previously overturned in Texas.
In their motion to dismiss, Craft's attorneys argued that Lunceford's team had failed to show any evidence of illegal votes or violations of the Election Code. They pointed out that the plaintiff's attorneys hadn't produced a single voter as a witness who could testify that he or she had not voted after being turned away due to a lack of ballot paper or for other reasons. They called the plaintiff's claims "unsupported speculation" and further argued that the plaintiff's case depended on unreliable witnesses.
Attorney Andy Taylor, the lead counsel for the plaintiff, summed up the testimony by his witnesses. He said the election judges he had called had estimated some 2,941 voters were turned away from the polls on Election Day, primarily because of paper ballot shortages, nearly 200 more than Craft's official margin of victory.
"It's not just impossible to prove people who were turned away did not vote elsewhere. it's also impracticable," Taylor said. He also repeated an earlier assertion that the judge who extended polling by an hour on Election Day 2022 did so on the basis of false information by the Elections Administrator's Office, and that as a result, more than 2,000 ballots cast after 7 p.m. should be discounted.
Judge David Peeples denied the motion to dismiss, and the case for the defense went forward.
The first two defense witnesses were Melissa McDonough and Sarah Syed, both Democratic members of the Harris County Signature Verification Committee. The two witnesses each contradicted earlier testimony by Kay Tyner, a Republican member of the committee.
Tyner had testified that a representative from the Elections Administrator's Office had given the committee instructions contrary to the Texas Elections Code, regarding the importance of checking signatures on carrier envelopes against voter registration records. She had estimated that, as a result, some 700 mail-in ballots were improperly processed. Syed and McDonough testified they had heard no such instructions.
The main defense witness of the day was Beth Stevens, an election law expert who previously worked under former Harris County Clerk Chris Hollins and former Elections Administrator Isabel Longoria. Stevens testified that the plaintiff's lawyers had failed to meet the burden of proof necessary to require a new election under the Texas Election Code.
"The burden of proof (in) any election contest is that contestant has to prove by clear and convincing evidence: that there has been an illegal vote or vote as result of mistake; that vote was actually cast in the election; that not only cast in the election but in this specific race; and that it materially affected results of election," Stevens said, adding that she had seen no evidence that any such votes were illegally cast or mistakes made that would materially affect the outcome of the Lunceford-Craft contest.