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House District 149 Election Challenge Hearing Begins

By J. Lyn Carl, GalleryWatch.com

Austin, TX –

In a committee room that took on a courtroom-like atmosphere, Rep. Will Hartnett (R-Dallas) today presided as Master of Discovery over the House District 149 election challenge brought by former State Rep. Talmadge Heflin of Houston.

Heflin, a longtime Republican member of the House who was defeated by 32 votes by Democratic newcomer Hubert Vo in the November 2004 General Election, brought the challenge in the contest, alleging voter and election irregularities that he alleges caused his election loss.

Heflin's challenge is one of three that were filed following the General Election, although the other two challenges were recently withdrawn. Vo was seated as a member of the Texas House when the 79th Legislature convened on Jan. 11, but has not be allowed to cast votes pending the outcome of the election challenge.

Andy Taylor, attorney for Heflin, said 41,357 voters cast ballots in the district, adding, "Their will should not be denied." The outcome was decided by 32 votes, which Taylor said is .04 of a percentage point. "That margin was decided not by those who cast legal ballots in this race, but by those who cast illegal ballots."

"The State of Texas is one that is a state of law, part of a nation of laws," said Taylor. "We have people overseas dying in the name of democracy. The constitution of our state dictates that there is one process to determine whether illegal votes are cast or illegal votes were discarded. It's this process - an election contest.

"We're not in a court of law today. We're visiting with an elected official with the legislative branch of government."

Taylor described the proceedings, which include today's "mini-trial" before Master Hartnett and then proceedings before the House Select Committee on Election Challenges and a final decision by the Texas House as a "legislature in robes." He said as such, the legislature might not rule impartially, but rather might rule on "whatever feels good, whatever is the popular whim at the time, what they think the majority wants." He warned that in the judiciary, "We rule on the basis of law, regardless of who it helps or who it hurts."

Addressing Hartnett, Taylor said, "Not only yourself but the Select Committee and every member of the Texas House is not acting as a legislature in robes, it's acting as a tribunal - as the judiciary," and urged that "balls and strikes must be called based on the law." Taylor alleged that hundreds of people voted in the District 149 election with "no legal right to do so," saying that skewed the true outcome. "That is a wrong. That must be righted."

Heflin's attorney said there are approximately 268 questionable ballots, and said the "lion's share" were cast by persons permanently residing outside Harris County.

While both parties agree that those persons cannot legally vote in HD 149, said Taylor, the fighting will come down to "whether it mattered or not."

Following interviews with persons who voted in the HD 149 election, Taylor said he has "in the bank" 129 known responses through depositions and a phone survey. He said 43 of those "illegal votes" were cast and counted for Heflin and 86 illegal votes were cast and counted for Vo. The difference is 43 votes, said the attorney, and with 32-vote margin of victory, that would mean that Heflin won.

"Every Texan has an interest in the outcome of this case," said Taylor.

"This is a legal, not a political process," said Taylor, citing a lot of "R versus D" rhetoric in the media. He said the only result that Texas can tolerate is "to declare the true winner, Rep. Heflin."

Larry Veselka, attorney for Vo, admitted there were some election judge errors during the balloting and probably some voters were given bad information by election officials, but he denied there was voter or election "fraud."

"In an election contest, the law is clear regarding the contestant's (Heflin) burden," said Veselka. "They must prove that the election of Hubert Vo was erroneous." He said the contestant must provide evidence, giving a legal definition of "clear and convincing" evidence that would produce in the mind of the master and committee "a firm belief or conviction as to the truth of the allegations." This burden "has not been met," he said. He said that at a briefing last week evidence of depositions by Heflin shows how "they interpret the testimony and how they interpret the law," and that by Heflin's own count following those depositions, evidence shows that Vo won the election by two votes. "We believe the actual outcome based on that testimony shows a margin of 37 (votes) instead of 32," said Vo's attorney.

Veselka also took exception to the fact that discovery in the election contest is apparently continuing, with some deposition testimony coming in as late as Wednesday. But he added that testimony shows that the margin of the Vo victory would only drop by five or six votes, and his margin of victory would still be 20-25 votes. "This matter should be brought to a conclusion at this time," he said.

Addressing claims of fraud, Veselka said there are no issues of voter fraud. "What we have are honest mistakes by people living busy lives seeking to understand the rules and regulations of the voter registration and electoral procedures." He said most of the votes challenged were cast based on the advice of election officials. He also said some errors were made by election judges, but that should not disallow affected ballots.

Vo's attorney also alleges that Heflin and his attorney violated the Rules of Civil Procedure, rules of evidence and rules set by the master and cited some of their evidence as "unreliable."

In offering evidence, tapes were heard of telephone survey calls of HD 149 voters who reportedly voted in the election and were asked if they voted Democrat or Republican. Taylor objected to the calls because in some cases there was no positive identification of the persons called.

Attorneys for Vo and Heflin spent the better part of the afternoon arguing over specific votes, announcing whether they agreed or disagreed regarding the legality of individual votes being contested. Veselka challenged some of the information from depositions offered by Taylor, noting he was not allowed to participate in the depositions and could not verify the information. Some of the information, he said, constitutes hearsay.

"My job to investigate this case only goes so far," Hartnett told the two attorneys as they argued over ballots and voter registration validity, with neither on occasion able to explain some of the election information they were offering. "I don't want to turn into the lawyer for both parties."

Late in the evening, the two attorneys agreed not to have live testimony during the mini-trial, but to rather stand on reports and depositions instead.

The proceedings will continue Friday at 9 a.m.