County Attorney Claims Producing Election Records “Will Harm” Harris County in Litigation

Harris County has filed a lawsuit against Texas Attorney General Ken Paxton seeking to keep 2022 election records secret, saying they “will harm” the county in litigation and must remain “confidential” by law, even though the law cited never mentions the word “confidential.”

The County’s most recent amended petition (dated 4/12/23) by Harris County Attorney Christian D. Menefee seeks a declaratory judgment from the 201st Judicial District Court in Travis County.

History of Dispute

What is the fight about? It started when investigative reporter Wayne Dolcefino and Jim McIngvale, Gallery Furniture owner, requested a list of records related to the November 2022 elections, including:

  • Phone records between officials regarding the election
  • Voting-machine maintenance records
  • The amount of ballot paper shipped to each precinct
  • Complaints received via phone and email on election day
  • A list of polling locations used in 2020 and 2022
  • Election administrator emails

Dolcefino and McIngvale hoped to determine whether more Republican-leaning precincts than Democratic-leaning precincts:

  • Experienced delays, jammed voting machines, and long lines
  • Ran out of ballot paper
  • Turned voters away
  • And, if so, whether problems were intentional

Harris County stonewalled their Texas Public Information Act request. They appealed to State Attorney General Ken Paxton. Paxton ruled in favor of Dolcefino and McIngvale. Harris County is appealing Paxton’s ruling.

Admission of Guilt?

As I read Harris County’s latest legal filing in this dispute, Paragraph 22 jumped out at me. It states, “Harris County further asserts there is a compelling reason to withhold the [requested] information from disclosure under Texas Gov’t Code 552.103, the litigation exception, as producing records will harm the County’s position in ongoing and anticipated litigation.” [Emphasis added.]

In my opinion that last statement sounds like an admission of guilt. They didn’t say, “could harm.” They said “will harm.”

If we assume the County Attorney is competent and knows what he’s talking about, that’s a pretty damning and alarming statement.

“Get Out of Jail Free” Card?

Further, again in my opinion, the reference to “anticipated litigation” seems like a “get-out-of-jail-free card.” Without more specifics, any official could claim “anticipated litigation” any time s/he didn’t want to produce embarrassing records.

So, I looked up the litigation exception. Harris County’s petition seems to fall short of the requirements re: “anticipated.”

Section 552.103(c) states that the litigation exception may be invoked “only if the litigation is pending or reasonably anticipated” on the date information is requested. [Emphasis added.] For instance, has a law firm sent a registered letter informing the defendant of an intent to file a lawsuit? Harris County’s latest petition does not reveal any such anticipated lawsuits, if there are any.

Mocking Legislators’ Intent?

Menefee’s petition cites Chapter 552 of the Texas Government Code TWENTY times as a reason to keep election records secret.

Yet Chapter 552, Subchapter A begins with the following warning to public officials. “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

Harris County’s position seems to mock legislators’ intent.

Bogus “Confidential” Claim

This case isn’t about national security. It’s about whether an election was conducted fairly. That’s why in my opinion, the refusal to produce these records is tantamount to a coverup.

Despite the fact that Dolcefino and McIngvale aren’t demanding a recount or the actual ballots stored in locked boxes, Harris County would have you believe they are.

The County’s fourth amended petition claims “cast vote records” are considered to be “confidential” and must be stored in a “secure container for 22 months” under the Texas Election Code 66.058. See Paragraph 9 of Petition. However…

In searching Chapter 66 of the Election Code, I found ZERO mentions of the word “confidential.”

The goal of the section that Menefee cited seems to be preserving paper ballots to settle disputes, i.e., preventing them from being destroyed prematurely. Chapter 66 even spells out procedures for opening storage containers, which the County Attorney claims is “a criminal offense” (See Paragraph 10 of his amended petition).

Menefee neglects to mention that it’s only illegal if it’s unauthorized and procedures are not followed. See Texas Election Code 66.058(c).

Also regarding confidentiality of voting records, Chapter 66.0021 states, “Each vote total shall be maintained in a downloadable format approved by the Secretary of State and posted on the Internet…” So much for confidentiality!

Your tax dollars are paying for this nonsense and to keep election information secret. Election information that the County Attorney admits is damning!

So far, all Dolcefino and McIngvale have gotten is ad hominem attacks from the County Judge Lina Hidalgo.

If Hidalgo or Menefee wish to explain their position for ReduceFlooding readers, I invite them to do so.

Posted by Bob Rehak on 4/16/23

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The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.