TDCAA TDCAA Community Civil New AG opinion re: election records KP-0411
Does anyone have any thoughts on KP-0411 and how the respond to the onslaught of requests to inspect or obtain copies of anonymous voted ballots during
the 22-month preservation period?
Tarrant County is suing to have it invalidated by a court.
“Ken Paxton’s legal guidance on public access to ballots contradicts advice his office gave out just five days earlier” (Texas Tribune)
We all seem to be having the same issue!
These requests have been pouring in and there is not enough staff or time to fulfill them in a small county.
Does anyone know the timeline for a ruling or temporary injunction in the Tarrant County case?
The Tarrant County case dates from 2021 and is between a requestor and the County. AG is not a party. There's an agreed TI that the County won't delete the records during the pendency of the case. They had a hearing on Tarrant County's MSJ on 8/5 and both parties filed supplemental briefing on 8/19. I don't see an order yet.
ETA: There is no Tarrant County case vs. Paxton re: KP-0411. KP-0411 was a response to two legislators, not to Tarrant County.This message has been edited. Last edited by: CTaylor,
Thanks for the update!
Please keep us posted.
Can anyone provide more specifics regarding 'the Tarrant County case'? Is there a style? Cause number? The information contained in the pleadings and TRO might be helpful, or at least instructive.
The Tarrant County case is Cause No. 096-330696-21, Karen Wiseman vs. Tarrant County et al. Happy to send copies of filings to anyone who's interested. The list of filings to date is attached (anything with a PDF icon next to it can be viewed).
Filings.pdf (304 Kb, 9 downloads) List of case filings
I would love to see the original petition and the summary judgment pleadings, if possible. Thanks!
To: Requestors for in-person inspection of voting documents
From: Elections Administrators
Purpose: Guidelines for inspecting Election documents in person
Date: September 12, 2022
The integrity and condition of the documents must be maintained throughout the process. To that end, the Bell County Elections Administration adopts the following rules of procedure pursuant to Texas Government Code section 552.230 relating to the inspection of sensitive documents: The term “documents” refers to any physical records being interacted with, including paper ballots and printouts.
Requests to conduct an in-person inspection must be made a minimum of five (5) business days before the desired inspection date. Dates will be scheduled based on the availability of space and resources. Since the Elections Administration is consistently in the process of preparing for or conducting an election, it may be up to 90 days or more before an in-person inspection of documents at the Elections Administration can be scheduled.
The Elections Administration will make every effort to allow an in-person inspection of documents as soon as practicable but cannot guarantee any specific turnaround time for every request. Per Texas Government Code section 552.225(a), requestors have up to 10 business days to complete their inspection of documents. They may only do so during regular business hours of the Elections Administration. Regular business hours are Monday through Friday, 8 AM to 5 PM, excluding County holidays. There is a 2-hour time period per Requestor on their scheduled date for inspection.
There will be specific tables designated for handling the documents. No writing or marking instruments are allowed around the documents while they are on the inspection tables. No food or drinks are permitted on the inspection tables. All interaction with the documents by non-elections personnel will be subject to video, audio, and in-person monitoring.
No more than two boxes or containers (insomuch as the documents are in boxes or containers) may be simultaneously accessed per table. This constraint may be reduced to one box or container based on space and resource availability. If the documents are not boxed, the Elections Administration may limit the number of documents that may be accessed at the same time as allowed by physical restrictions and/or availability of said documents to avoid any potential issues.
The number of persons allowed simultaneous access to the documents is limited to two, determined by the amount of space available and monitoring such access. The Bell County major political party chairs would be notified of the scheduled date and invited to be present during the inspection. Additionally, two election staff or observers will also be present as determined by the Elections Administrator.
Laptops, tablets, or any other electronic devices which contain network capability are not allowed to be connected to any County network. Ethernet cables are strictly prohibited in the inspection area. Any attempt to plug a device into an ethernet jack in the Elections building at any time is not permitted.
Laptops, tablets, cell phones, and other electronic devices that do not have ethernet ports may be brought into the inspection area. Adherence to these guidelines is mandatory. Failure to comply with the policy can result in Elections Staff asking the person to leave and reviewing documents being rescheduled to a future date.
I. Petitioner Lacks Standing
Petitioner has chosen to file an action for Declaratory Judgment and Emergency Relief against Electronic Voting Systems. Petitioner was not a candidate in either the primary or general elections held or to be held in Bell County. Instead, Petitioner seeks standing as an aggrieved voter. Petitioner does not claim that actual fraud or manipulation occurred in any election. She merely postulates that “electronic voting systems are inherently vulnerable to improper manipulation of votes and vote totals,” and “[t]hey cannot be effectively secured against improper manipulation. Therefore, they cannot be constitutionally used to administer Texas’s election.” Petition for Declaratory Judgment and Emergency Relief Against Electronic Voting Systems, p. 32. The harms alleged by Petitioner are not concrete or specific; they are speculative; however, various courts have recognized a “voter’s” standing as to Equal Protection claims. See generally, Andrade v NAACP of Austin, 345 S.W.3rd 1 (Tex. 2011).
A. Equal Protection Standing does not Translate
to Standing based on Other Claims
Petitioner does invoke standing based on Equal Protection violations, but interspersed within her pleadings are allegations of Due Process violations, specific statute violations and other generalized unconstitutional actions by the Respondents. In a similar set of facts, the Andrade court held:
“The voters’ standing to pursue an equal protection claim does not translate into standing for their remaining claims” Andrade v. NAACP of Austin, 345 S.W.3rd 1 at 14 (Tex. 2011).
Petitioner’s pursuit of Due Process claims and other related claims lack standing in that they do not rise above the level of generalized grievances.
“As we have noted, statutes like this (speaking to Tex. Elec. Code § 273.081) which permit ‘persons aggrieved,’ ‘persons adversely affected,’ [or] ‘any party in interest,’ to sue, still require that the plaintiff show how he has been injured or damaged other than as a member of the general public.” Scott v. Bd. Of Adjustment, 405 S.W.2nd 55, 56 (Tex. 1996), cited in Andrade at 17.
Petitioner has not established any standing outside of her claim of Equal Protection.
B. Petitioner has not Pled Sufficient Facts to Invoke
Equal Protection Standing
In bringing an action, the Petitioner must plead with sufficient specificity to allow a meaningful defense or response by the Respondents.
“Texas is a notice pleading jurisdiction, and a ‘petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense.’ Roark v. Allen, 633 S.W.2d 804, 801 (Tex. 1982).” Koppolow Dev., Inc. v. City of San Antonio, 399 S.W.3d 532 at 536.
Nowhere in her pleadings has the Petitioner identified a specific group or class of voters that the Respondents have treated differently. The Petition’s request, “[a] return to the tried-and-true paper ballots of the past—and of the present, in countries like France, Taiwan, and Israel—is necessary” (Petition at p. 5), hardly confers standing to sue elected and appointed officers of Bell County.
II. Respondents are Immune from Suit under the Facts Alleged
The Respondents, as elected and appointed officials of Bell County, Texas, assert their sovereign immunity from the lawsuit the Petitioner has filed. Petitioner has not alleged a valid ultra vires act on the part of any of the Respondents which would thwart a claim of sovereign immunity. In fact, Petitioner often complains that the Respondents acted under the advice of the Texas Secretary of State (see Petition, p. 28 & 29).
As the Texas Supreme Court re-emphasized in Matzen v. Mclane:
“… to defeat a plea to the jurisdiction, the plaintiff suing the state or its officers must plead facts that, if true, "affirmatively demonstrate" that sovereign immunity either does not apply or has been waived. E.g., Tex. Dep't of Crim. Just. v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020); Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 at 226. As applied to ultra vires claims, this rule requires the plaintiff's petition to allege facts affirmatively demonstrating actionable ultra vires conduct by state officials in order to avoid dismissal on jurisdictional grounds due to sovereign immunity. Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017); Chambers—Liberty Cntys. Navigation Dist., 575 S.W.3d at 344-45; Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1, 17 (Tex. 2015) (dismissing suit because plaintiffs failed to plead actionable ultra vires conduct). Matzen v. McLane, No. 20-0523, 65 Tex. Sup. Ct. J. 181, 2021 Tex. LEXIS 1192, at *9 (Dec. 17, 2021).
Here, the Petitioner complains mostly about the Secretary of State’s discretion in certifying the past election. Such actions do not qualify as ultra vires acts.
Importantly, Respondents’ claim of sovereign immunity must be viewed in light of the only claim for which Petitioner has standing—Equal Protection. The Andrade case went to great lengths in weighing electronic voting versus other systems, examining the plusses and minuses of each. They concluded that no system is perfect, “but the equal protection clause does not require infallibility.” Andrade at 14. The court concluded:
“We cannot say the Secretary’s decision to certify this device (DRE) violated the voters’ equal protection rights or that the voters can pursue generalized grievances about the lawfulness of her acts. ‘Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of [the Legislature] and the Chief Executive.’ Lujan, 504 U.S. at 576, 112 S. Ct. 2130 (1992).” Andrade v. NAACP of Austin at 18.
Respondents respectfully request that the Petition be dismissed for the preceding reasons, with costs and fees taxed to Petitioner.
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TDCAA TDCAA Community Civil New AG opinion re: election records KP-0411
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