District 4 Contest Arrives in Court

Visiting Judge Daniel H. Mills

Defeated City Council candidate Laura Pressley had her first day in court Monday morning, in a pre-trial hearing before visiting Judge Daniel H. Mills, of Pressley's election contest against City Council Member Greg Casar. Mills was amiably skeptical of Pressley's claims, but tentatively planned a trial for June.

Judge Mills began by asking the attorneys to bring him up to speed on their positions, and particularly on the technical arguments about the voting and recount procedures.

Pressley was represented by David Rogers, who told the court that at the heart of her case is the argument that the "cast vote records" maintained by Travis County Clerk Dana DeBeauvoir, and recounted by hand Jan. 6, are not the visual or legal equivalent of "ballot images" as required by state law – even though the Secretary of State has repeatedly ruled otherwise.

Casar's counsel, Chuck Herring, responded that "all the authorities" (city, county, state, federal) have repeatedly defined "cast vote records" as "ballot images," even in the federal voting lexicon, and that Rogers will fail to find any legal contradiction of that definition. Sherine Thomas, representing Travis County and Clerk DeBeauvoir, gave much the same response, and also described to the court the basic procedures used by the County in the Jan. 6 recount (occasionally assisted by DeBeauvoir, also in attendance).

Herring also presented his "special exceptions" to previous pleadings by the Pressley team, and the judge granted several of those exceptions, directing Rogers to either clarify those pleadings within two weeks or they would be rejected by the court. For example, Pressley claims that some voters were confused by the consolidation of the polls, or others may have moved out of the district and were therefore ineligible – those alleged voters need to be identified and provided to the court as potential witnesses, or the claim is rejected. Similarly, Pressley's latest pleadings do not specify the "relief" she is seeking (earlier she had asked for a new election conducted with paper ballots); that too must be spelled out by the contestant.

The judge also limited the broad discovery requested by Pressley's team, after Thomas contested many of the items as either irrelevant or, as she put it, "the definition of a fishing expedition." The County agreed to provide certifications of "zero-tape" clearings of the voting machines and similar procedural records (some of which are public records), but the judge also said that unless Pressley's team could produce some evidence of actual mistakes or fraud in the voting system, they could not simply request material wholesale in hopes of finding some problem.

But the precise discovery issues were not completely resolved; the judge asked that all parties update their requests and maintain contact with the court to resolve any disputed issues. The tentative plan is to have discovery completed by the end of the month; after some discussion of schedules, Judge Mills said he would tentatively plan a court date for June.

It may not come to that, as once the attorneys completed their explanations of the recount process – amplified by the County's attorney – Judge Mills said that while he was not yet ruling on the issue, it seemed likely to him that the printed "cast vote record" indeed represented the "ballot image" on the screen of the e-vote machine as a voter readied to press the button and cast his or her vote. "If they can give me those images, and let me count them, would you be satisfied with that?" he asked Rogers. "No, your honor," replied Rogers, insisting that images of the "ballot summary" are not the same as "images of ballots cast."

For more on the District 4 contest and Monday's hearing, see this week's print edition, available April 9. You can also read earlier Chronicle coverage here, here, and here.