Everyone who lives in the Rio Grande Valley knows that the systematic manipulation and exploitation of vulnerable voters, through both mail-ballot schemes and assisted voting at the polls, is a fact of life in local elections. The trouble is proving it and finding someone to enforce the law, even-handedly.
Leticia Galvan and Martie Garcia Vela are trying to do just that. The two Democratic candidates are contesting the results of their March 2018 primaries in Starr County, a border county west of McAllen, Texas.
Galvan ran for County Judge against long-time incumbent Eloy Vera; Garcia Vela ran for an open seat on the 229th District Court. After five days of sworn testimony in open court, the trial record documents the manipulation of elderly and other vulnerable voters voting early in person in perhaps more detail than has ever been available before.
The April 2018 trial featured testimony from poll workers, the Starr County elections administrator and several of his staff, candidates, voters, and two poll watchers who spent a combined minimum of 70-80 hours observing the conduct of assisted voting at the Rio Grande City Courthouse polling site.
The evidence and arguments are all summarized in the contestants’ brief to the Fourth Court of Appeals, recently unsealed by the Court of Appeals.
Some highlights from trial, all established through clear testimony that went uncontradicted, include the following:
Abuses of “assisted” voting
Poll watcher Monica Pena, who observed 7-8 full days of early voting, testified she saw from 40 to 100 voters each day voting “curbside” from a vehicle with assistance. The voters would typically arrive in the same vehicle with the assistant. About half the time, the process began with the assistant telling the voter — sometimes with a “nudge” — to “remind” the clerk that the assistant would help. Pena testified “in some occasions they almost seemed coached by whoever…brought them in.”
Pena testified “for the most part,” the assistant, not the voter, would receive and complete the ballot. “They would just swear in the assistant, they would provide the assistant with the ballot…and on many if not all occasions [the assistant] would be filling out the ballots.”
Norma Lopez, a military veteran, filled in as a poll watcher one day for Pena, and observed the same things. She testified she was troubled by the exploitation of elderly voters she witnessed. When she heard this case was filed, she contacted Leticia Galvan and reported her experience.
Lopez testified she observed one of the women who had been seen assisting multiple voters outside come inside with a voter she referred to as “Panchito.” Panchito asked the election clerk for a Republican ballot, but the “assistant,” Ester Ayala (a Starr County employee who testified she was volunteering to help Vera in the campaign) said, “No Panchito, you are not voting Republican, you are voting Democrat.” Lopez told the presiding election judge, who was standing close by, “She can’t do that!” But the judge told Lopez to “back off” and gave Panchito the Democratic ballot. Lopez remained watching as Panchito told Ayala, “well you fill it out because I don’t know who you want me to vote for.”
Both poll watchers complained repeatedly to the election judge and clerks, to no avail. They became so frustrated by the lack of action they stopped complaining.
It is now impossible to identify which voters were assisted, and by whom. While Texas Election Code Section 64.032(d) requires that poll workers record the assistant’s “name and address on the poll list beside the voter’s name,” the poll workers refused to do so, at the direction of Elections Administrator John Rodriguez.
“In normal circumstances absent fraud, the failure to properly record the assistant’s information would not invalidate the votes,” said attorney Jerad Najvar of Najvar Law Firm, who is representing the contestants. “But where there is fraud in the election — and here there was fraud by the assistants who unlawfully assisted and the poll workers who failed to prevent violations of the code — the failure to record this information should invalidate the affected votes, because it prevents an audit of the election.”
Ballot Box Security Failures and Indications of Stuffed Ballots
Boxes of ballots from multiple election sites contained stacks of sequentially-numbered ballots, “stuck together” as if pulled from a paper stack and unsigned by the presiding judge (who is required to randomize and then sign each ballot before offering them to voters).
Starr County voting machines utilize paper ballots. After the voter fills in the ballot, he or she feeds it into a precinct ballot scanner, which tabulates the votes at the polling site as the ballot then falls into an attached ballot box. An election judge testified she knows from ten years of election experience that the scanner will alternate flipping ballots to the right and left side of the ballot box as they are scanned in.
If a ballot box contains stacks of ballots, sequentially numbered, “stuck together,” and unsigned by the presiding judge, it is clear those ballots were not scanned through the machine by successive voters. The alternative is the ballots were placed in the box at some other time.
Yet, as with the failure to record assistants’ information next to voters’ names, election officials did not keep required records of the numbers to the seals on the scanners and ballot boxes, preventing any audit of equipment manipulation.
Further, when a box that was not properly sealed was discovered during the recount, a sheriffs’ deputy made an official report and testified an elections official was trying to “act like” the seal was not open. Elections Administrator John Rodriguez walked away from the area and did not return to the recount that day, and never followed up with the sheriff’s department to investigate.
Early Voting Ballot Board
The Early Voting Ballot Board, responsible for processing all mail-in ballots to determine whether each ballot will be accepted or rejected, had five members. Three of them were statutorily disqualified from serving on the board because they are Starr County employees and County Judge Eloy Vera was an opposed candidate on the ballot.
Additionally, each member of the board reviewed her own stack of ballots and decided unilaterally whether each ballot would be accepted or rejected, as opposed to reviewing them as a board.
After the trial, a vising district judge held that the contestants had failed to prove by clear and convincing evidence that the election was invalid. (The trial court’s judgment and findings are found in the appendix to Appellants’ brief.)
This author believes the trial court erred in failing to recognize the undisputed facts in this case established fraud as a matter of law in various phases of the election. This means the statutory violations by election officials, including failure to record the assistants’ information and failure to record ballot box seal numbers, require a new election.
If the Court of Appeals orders new elections based on these violations, it will go a long way to restoring election integrity in South Texas, and will send a message that the laws meant to protect vulnerable voters — our elderly and infirm family members — cannot be ignored and abused.
The Fourth Court of Appeals has indicated it will decide the case by August 29.
Jerad Najvar specializes in litigation and appeals in election and constitutional matters, and is founder of the Najvar Law Firm, PLLC in Houston. He successfully litigated an election contest in Hidalgo County in 2014, Letty Lopez v. Guadalupe Rivera, proving 30 votes were illegally cast in a Weslaco race decided by 16 votes, including instances of ballot by mail fraud.
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