Texas Dems Sue Over Vote-Counting Method

A month after Election Day, the last seat in the Texas House of Representatives has finally been settled. After a recount was completed Dec. 5, incumbent Republican Linda Harper-Brown held House District 105 in Dallas County by 19 votes over Demo­crat­ic challenger Bob Romano – one vote down from her margin after the original count. This leaves the Republicans with a 76-74 House majority. So why are the Democrats still suing Dallas Co. Elections Division?

Chad Dunn, attorney for the Texas Demo­cratic Party, says the federal suit isn't just about HD 105. Instead, the party wants to resolve how electronic voting machines handle so-called "emphasis" votes, which occur when voters vote straight ticket and then press a candidate name to add emphasis, which actually deselects the name. Defend­ers of the system argue that voters are choosing not to vote in those races. The problem, says Dunn, is that the way Dallas Co. configures its machines doesn't give voters a proper chance to review their votes and doesn't leave enough of a paper (or data) trail. While accepting that even if all contested emphasis votes were included, Romano would probably still lose by nine votes, Dunn says that's not the point. He explained, "The best case scenario is that [these machines] record a voter's selection in such an ambiguous manner that voting officials can't determine voter intent."

Dunn challenges the idea that voters should just read the instructions better. He warns that would be "effectively a literacy test for voters" and therefore unconstitutional. Changing the process, he argues, can be done as part of the regular maintenance cycle, using established and proven best practices as a model. "What's great," he said, "is that it doesn't require the state and counties throwing out expensive equipment. It's just a software fix."

What frustrates Dunn is that these best practices still haven't been implemented. Texas Democrats are waiting to hear if the U.S. Supreme Court will accept an almost identical case dating back to the 2006 elections. Dunn finds unacceptable the fact that emphasis votes are still a legal headache two years later. "Had the secretary of state taken those complaints seriously in 2006," he added, "we wouldn't be here now."