Travis County Republican Dan Neil lost his first race for elective office in November by just 16 votes. Having failed in that challenge to state Rep. Donna Howard, D-Austin, he asked for a recount, and lost again, this time by 12 votes. Now, like other just-by-a-nose losers before him, he's appealing to the Texas House of Representatives in the hope that it will declare some of the voters in that election ineligible and put him in first place and Howard in second.
The proceedings start today. An appointed "master" — state Rep. Will Hartnett, R-Dallas — will pore over the evidence, listening to lawyers for the contestants and to witnesses, and will make a recommendation to a special committee that's been appointed for the contest. The committee members will hear from the lawyers and, if they wish, from more witnesses, and make a recommendation to the House. And the House, if the matter goes that far, will decide whether Howard or Neil should be the state representative from House District 48.
"Through our investigation and our research, we have found some illegal votes that were counted, and we're trying to get those illegal votes that were counted out of the final count," Neil said in an interview with The Texas Tribune on the eve of the mini-trial.
He has raised questions, too, about votes that weren't counted that should have been. But he says his main interest is on the first group. "We're really just kind of focusing on the votes that were counted that we know should not have been counted," he says.
Howard is defending her 12-vote margin and told the Tribune that she's concentrating on her legislative job while the lawyers work.
Audio: Donna Howard
If it's the day after the election and you just can't believe the voters wanted the other so-and-so instead of you, and if the contest was close, you have options.
First, you ask for a recount and, failing that, for a formal recount (for which you must pay; Neil deposited $4,000 with the Texas secretary of state in late November). Still behind? What's next depends on the facts of your case. It can go to court, like Bill Welch's challenge in 1992. Susan Combs — now the state's comptroller — finished first in a pack of five in the GOP primary and went to a runoff with Welch. They finished a handful of votes apart on Election Day — five out of 4,551 — and he took it to a court, which found that he had lost, ultimately, by two votes.
Audio: Dan Neil
Or it can go to what's known officially as an election contest, where the Legislature (the House, in this case) decides who gets the seat. It's happened 113 times between 1846 and now, according to the Texas Legislative Council, an in-house legal and research arm of the Texas Legislature. TLC has a page on its website devoted to these contests. Since 1979, there have been 14 contests in the House and one in the Senate. It's possible for the loser to turn it around, but it hasn't happened that way, at least in the last 30 years. All but six of those contests were dropped before they came to a full legislative vote, and all but one was decided against the challenger and in favor of the person who appeared to be the winner at the outset. In that one case, in 1981, the House ordered a new election. The winner? Alan Schoolcraft, who was also the winner of the initial contest that was disallowed.
Membership, you might think, would have its privileges. Not in an election contest. Talmadge Heflin, the powerful head of the House Appropriations Committee, dropped his challenge to Democrat Hubert Vo in 2005 after it became apparent he was going to lose. Rep. Jack Stick, R-Austin, dropped his challenge to Democrat Mark Strama that same year. Bernard Erickson, a Cleburne dentist, won election as a Republican in 1992, switched parties and faced Arlene Wohlgemuth of Burleson in the 1994 elections. She finished 46 votes ahead, but he appealed, after a recount, to the Legislature. But when a House committee backed Wohlgemuth, he dropped his challenge rather than asking the full House for a vote.
Neil's attorney is Joe Nixon, a Houston attorney and a former Republican legislator. "Our goal is to ensure that every voting resident of House District 48 had an opportunity to vote and had their vote counted," he said in a press release last week. "Eligible voters were prevented from casting a ballot. Ineligible voters were not prevented from casting a ballot, so there is no way to know for certain who the winner is without a new election."
He's talking there about 222 overseas Americans who voted in the election but whose local votes weren't counted because they filled out forms saying they were out of the district "indefinitely" instead of "temporarily." The votes they cast in the federal races were counted; their votes in the local contests were not. That's standard operating procedure at the Travis County elections office, but Neil's side says the local votes cast by those voters should have been counted — and if that's ultimately the ruling, they want another election. [Editor's note: An earlier version of this story referred to the overseas voters as military personnel; the actual designation on their forms is for "A U.S citizen residing outside the U.S. indefinitely."]
The rest of the case is primarily about the eligibility of people whose votes were counted. Neil's side is questioning whether they should have been, and that's up to Hartnett, now, to decide.
Neil says now that he's just hoping to get an accurate count of the vote from the November election, and says he'll live with the results.
"I feel very confident about it," he says. "I've had no problem, all along, putting my faith … in the hands of the voters and also in the hands of the people that do the recount and also opportunities to contest it to the House. There are entities that are there to make sure every legal vote gets counted, and I feel very good about how this process has gone. Now, also I wish it wouldn't take so long."
Neil sees this as a black-and-white issue. Howard says she sees some gray — if only because it requires a gaggle of lawyers to sort it all out. She says she's doing all of the things she normally would be doing at the beginning of a legislative session, and remains hopeful.
"I would like to say that I am confident, and I am," she says. "But obviously with an election that's only won by 12 votes, and not knowing what some of these legal arguments might be yet, until we have the hearing, it hard for me to say what the outcome will be."