Gallery-furniture owner James McIngvale and investigative reporter Wayne Dolcefino are suing the Harris County Elections Administrator’s Office for refusal to produce documents related to the controversial 2022 Harris County Election on November 8. “If there’s nothing to hide,” said Dolcefino, “the best way to clear this up is to produce the documents.”

The lawsuit in Harris County District Court seeks the documents requested under the Texas Public Information Act (TPIA) and recovery of legal fees. It raises huge issues about the transparency of Harris County government in performing one of its most sacred jobs – conducting elections.

Internal Investigation Called “Inconclusive” by Election Administrator

In a post-election assessment of the 2022 elections issued by Clifford Tatum, the County Elections Administrator, he called his own internal investigation “inconclusive” His office’s report acknowledged issues such as malfunctioning voting machines, short staffing, and lack of supplies on election day. The report also blamed the United States Postal Service for not moving mail-in ballots quickly enough. And in a first, the report blamed the Astros World Series parade for causing school district closures. The closures allegedly caused delays by presiding judges in opening voting centers located in schools.

Documents Sought

To get to the bottom of these and other issues, Dolcefino requested production of documents in the following categories:

1. Phone records including text and phone messages for Clifford Tatum between August 1, 2022 and the present. Tatum’s emails and their attachments on Election Day. And all emails between Precinct 1 and Tatum since August 1, 2022.
2. All documents dealing with voting machine maintenance issues on Election Day, plus all documents pertaining to inspection of their logic and accuracy before Election Day.
3. The amount of ballot paper provided to each precinct on Election Day and the number of voters who voted at each precinct. This includes emails between the Administrator’s office and precinct judges regarding paper shortages.
4. All election complaints, whether by email or phone, received by the Election Administrators Office and County Judge Lina Hidalgo between November 8 and the present.
5. A list of all polling locations for 2020 and 2022 elections, plus all emails to/from Tatum re: an audit by the Secretary of State.
6. Emails to/from Tatum between May 1, 2022, and Election Day re: maintenance of polling machines, ballot paper supplies, and changes in polling locations.

Documents Produced

According to the lawsuit, to date, the Elections Administration Office has only produced documents relating to:

1. One portion of #3 – number of voters, but not the amount of ballot paper supplied for them.
2. One portion of #5 – the list of polling locations, but no audit emails.

Reasons Cited for Not Releasing Documents

The Elections Administration Office repeatedly cites pending litigation as the reason for refusing to produce the requested documents. The lawsuit lays out why Dolcefino and McIngvale believe the “litigation exception” should not apply. He cites extensively from the Texas Government Code Section 552.103(A). It was intended to prevent the litigation exception from circumventing the intent of the TPIA, i.e., to make public information available to the public. 

The Elections Administration Office also claims an “audit working-papers exception” to TPIA. It allows withholding information under audit.

However, Dolcefino points out that release of the documents is discretionary. There’s no law or rule saying the county must withhold them.

Plaintiffs Claim Defendant Has Not Met Burden of Proof

However, McIngvale and Dolcefino claim that the Elections Administration Office has failed to meet its burden of proof re: the exceptions. The lawsuit says that the Election Administrator Office has blocked virtually all releases of information without valid explanations or precedents. The bulk of the 20-page lawsuit examines, on a case-by-case basis, why McIngvale and Dolcefino believe legal precedents cited by the Elections Administration office should not apply. 

They request a jury hearing on the merits of their arguments.

Says the suit, “Simply because litigation pertaining to an election has been filed or is anticipated does not permit the Harris County Elections Administrator to withhold his communications simply by benefit of his office.”

County Shortcomings Identified by State Audit

The plaintiffs’ lawsuit cites repeated and widespread failures in Harris County. For instance, in December 2022, a Texas-Secretary-of-State audit of Harris County found:

• Mobile ballot boxes containing 184,999 cast-vote records that were included in the tally did not have a proper chain of custody.
• Documentation for the creation of 17 mobile ballot boxes accounting for 124,630 cast-vote records could not be produced.
• Unlike other counties, Harris County did not release a list showing polling locations comparing variance between the number of voters checked in and the number of votes cast.
• The State’s Forensic Audit Division was not allowed to speak to pertinent Elections Administration staff until the month before the election.

Dolcefino said, “The quickest way to make all this go away is to release the documents.” 

Needed to Hold Government Officials Accountable

In my opinion, this is information that citizens need to hold their government officials accountable. As the Washington Post says, “Democracy dies in darkness.”

The preamble to the Texas Government Code holds that “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.”

In my limited experience, I have found that departments that have nothing to hide willingly produce information. On the other hand, those that withhold information trigger suspicion, undermine trust, and cause more journalists to dig deeper. The resulting public outrage, often backfires on the stonewallers in the long run. 

Unfortunately, the courts move so slowly these days, this dispute may not be settled before the next election. So the information the secret documents contain may not help us conduct a better election next time. Now let’s see. Who’s responsible for courts?

To see the full lawsuit, click here.

Posted by Bob Rehak on 2/14/2023

1995 Days since Hurricane Harvey

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.