San Antonio Appellate Court to Decide Important Case Documenting Systematic Manipulation of Assisted Voters and Indications of Ballot Box Stuffing

From a Najvar Law Firm press release, August 23, 2018:

Case Pending Before San Antonio Court of Appeals Presents Opportunity to Restore Election Integrity in South Texas

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.  Najvar Law Firm is representing Leticia Galvan and Martie Garcia Vela, two Democratic candidates contesting the results of the 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 been available ever before. The San Antonio Court of Appeals is expected to decide by August 29 whether new elections will be ordered.

A five-day trial was held in April 2018, featuring 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 detail in Contestants’ brief to the Fourth Court of Appeals, unsealed just this week by the Court of Appeals.  Some of the highlights from trial include the following, all established through clear testimony that went uncontradicted:

Abuses of “assisted” voting

  • Poll watcher Monica Pena, who observed 7-8 full days of early voting (from the time the polls opened to the time they closed) testified that she saw between 40 and 70 (and sometimes up to 100) voters voting curbside with assistance each day. These voters would typically arrive in the same vehicle with the assistant.  About half the time a voter received assistance voting from a vehicle, the process began with the assistant telling the voter—sometimes with a “nudge”—to “remind” the clerk that the assistant would help.  Pena testified that “in some occasions they almost seemed coached by whoever…brought them in.  Uh, and they would nudge them…to remind them, ‘ask for me, ask for me.’”
  • Pena testified that “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. Observing them they would close the doors to the vehicle, and on many if not all occasions they would be filling out the ballots.”).
  • Pena observed that sometimes it appeared to be “just a pattern of filling out….whatever party they were with,” even voting based off of a sample ballot in the vehicle, without any observable conversation between the assistant and the voter (which would be required if the assistant were actually asking the voter whom the voter wished to vote for).
  • On many occasions, the assistants would “tote” numerous voters to the polling place at once in the same vehicle, and on such occasions Pena said that the assistants would not read the ballots, and she overheard them telling voters, “No, no, no…No, not that one,” or “ ‘Con ese candidato no,’ which means not with that candidate, he’s not with us or they are not with us.”
  • Norma Lopez, a military veteran who served tours of duty overseas, filled in as a watcher one day for Monica Pena, and observed the same things. She testified that she was troubled by the exploitation of elderly voters that she witnessed.  Lopez is not typically active politically, but when she heard that this case was filed, she contacted Leticia Galvan via Facebook and reported her experience.
  • Lopez happened to be inside the polling place at one point when one of the women who had been observed assisting repeated voters outside in the manner described above came 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 County Judge Eloy Vera in the campaign) immediately said, “No Panchito, you are not voting Republican, you are voting Democrat.”  Lopez was standing right there, as was the presiding judge, and Lopez told the judge, “She can’t do that!”  But instead of ensuring Panchito had the ability to vote the ballot of his choice, the judge told poll watcher Lopez to “back off,” and gave Panchito the Democratic ballot.  Lopez then remained watching as Panchito told Ester, “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 that they stopped complaining.
  • It is now impossible to identify which voters were assisted, and by whom. While Election Code 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, representing 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, unsigned by the presiding judge (who is required to randomize and then sign each ballot before offering them to voters).
  • To understand the implications of finding ballots in such a manner, one must understand the way the Starr County voting machines work. Starr County utilizes paper ballots, and after the voter fills in the ballot, he or she feeds it into an M-100 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 that she knows from ten years of election experience that the M-100 will alternate flipping ballots to the right and left side of the ballot box as they are scanned in.
  • Thus, if a ballot box contains stacks of ballots, sequentially numbered, “stuck together,” and unsigned by the presiding judge, it is clear that those ballots were not scanned through the machine by successive voters. There can be no explanation other than as someone’s attempt to cover up a fraud, as if they had manipulated the electronic results on the machines during the election and then, when they realized a recount was requested (requiring the ballot boxes to be opened), they placed the ballots in the box to cover up the fraud.
  • Yet, as with the failure to record the assistant’s information next to the voters, election officials did not keep required records of the numbers to the seals on the M-100s and ballot boxes, preventing any audit of manipulation of the equipment.
  • Further, when a box that was not properly sealed was discovered during the recount, a sheriffs’ deputy made an official report, and testified that an elections official was trying to “act like” the seal was not open when it was obvious to the deputy and others that it was 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, and 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 was reviewing her own stack of ballots and deciding unilaterally whether each ballot would be accepted or rejected, as opposed to reviewing them as a board.

After a five-day trial in April, a vising district judge held that 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 as Tabs A and B.)

“The trial court erred in failing to recognize that the undisputed facts in this case established fraud as a matter of law in various phases of the election,” said Najvar, “which means that 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 that are meant to protect vulnerable voters—our elderly and infirm family members—cannot be ignored and abused.”

The Fourth Court of Appeals has indicated that it will decide the case by August 29.  It initially set the case for oral argument, indicating that the Court is interested in one or more issues in the case.  However, Galvan and Garcia Vela asked the Court to expedite its decision, including by foregoing oral argument if necessary, so that time remains to conduct new primary elections (before the General Election in November) in the event the Court rules in their favor.

The case is Leticia Garza Galvan and Martie Garcia Vela v. Eloy Vera and Baldemar Garza, No. 04-18-00309-CV, pending in the Fourth Court of Appeals.  The court’s case page is here, reflecting the status of the case and links to the documents.

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, including instances of ballot by mail fraud.

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