Burnt Orange Report

Heflin vs. Vo Findings Highlights & Coverage Roundup

By Vince Leibowitz

I finally got some time to read the entire 60 page report released this morning by Rep. Will Hartnett (R-Dallas), Master of Discovery to the Select Committee on Election Contests.

There were some very interesting things in there, including the mention that Heflin and his attorney, Andy Taylor, presented no credible evidence of fraud.

Here are some of the highlights:

From the Summary

1.) Contestant Heflin has failed to establish by clar and convincing evidence that the outcome of the contested election, as shown by the final canvass indicating Contesteee Vo as the winner, was not the true outcome of the election. Accordingly, Heflin's contest should be dismissed.

2.) It is the master's finding that Contestee Vo's vote margin was reduced from 33 votes to 16 votes. there remain four votes that may be retrieved and opened and 1 voter who may be compelled to testify. However, even if all of those votes were in favor of the Contestant, Contestee Vo would still have a margin of victory not less than 10 votes. [Footnoted with: "Although the Select Committee may order the ballots to be opened or the voters to be compelled to testify, such action is not necessary, because the additional ballots cannot eleminate the margin of Contestee Vo's victory."]

3.) Contestant has produced no evidence of any intentional voter fraud which affected the final vote tally to his detriment. Contestant's challenge to the vast bulk of the votes in question is based on technical, and apparently unintentional, violations of election law.

4.) There is evidence that several voters in District 149 were fraudently transferred into District 137 in late 2003 or early 2004. The voters, primarily Nigerian Americans, all had their voter registrations transferred in a similar manner, likely by the same person...

This was particularly interesting, and Hartnett addressed it further when considering the case of one of the deposed voters, Franca Ejiofof:

It appears that Ms. Ejiofor's voter registration was moved without her knowledge to another district in which she did not reside. She is likely a victim of a broad scheme conducted in Harris County in late 2003 and early 2004 to involuntarily re-register persons with African or Nigerian surnames into Dsitrict 137. In the March 2004 Democratic Primary, the incumbent from District 137, Scott Hochberg, faced a challenge from Bernardo Amadi, a Nigerian immigrant. In the election, Representative Hochberg won 72% of the vote, and subsequently, the Harris County voter registrar conducted an investigation in which he found that over 100 people primarily with African or Nigerian surnames had their registrations involuntarily transferred in time to be effective to vote in the Democratic Primary in March 2004.

In discussing guidelines used in making the determinations regarding contested votes, Hartnett was very clear that a heavy burden of proof had to be met:

Both legislative and judicial precedents indicate that, to overturn an election, the Contestant has the heavy burden of proving by clear and convincing evidence that voting irregularities materially affected the election results.

[...]

"Clear and convincing evidence is defined as that measure or defree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be estabilshed." This intermediate standard "falls between preponderance of the evidence of ordinary civil proceedings and the reasonable doubt standard utilized in criminal proceedings."

[...]

While the proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed.

[...]

In order to prevail in this contest, the Contestant must show that the margin of victory in this race was offset by clear and convincing evidence of excluded legal votes cast in the race that are tied to a particular candidate.

And, since Heflin didn't show that, Hartnet concluded:

This was a very close election decided by only a handful of votes out of more than 41,357 cast. After months of discovery, the detailed review of the voter files of 259 persons, and hours of examination and analysis of voter files by the parties and the master, it is the opinion of the master that the Contestant has failed to meet his burden of proof. The master concludes that Representative Vo retains his seat by not less than 10 votes and not more than 20 votes, depending on the impact of the five votes that may still be counted.

Although there was no evidence of voter fraud generated by any candidate in this race, serious questions remain regarding the fraudulent "deportation" of a significant number of Nigerian American voter registrations from District 149 and several other districts into District 137.

In a nutshell, that is the report. It did, of course, contain a great deal of information dealing with exactly what guidelines Hartnett used in making his conclusions, a re-hashing of what both sides submitted to the panel, and a great deal of dissection of exploration data, and divided up votes/voters in questions into various categories and discussed persons in those categories who were deposed.

As for a "coverage roundup," In The Pink Texas has some of Andy Taylor's comments on the situation. Kuff has an updated round-up including breaking stories on it, and a link to the report. Save Texas Reps has a link to some hearing transcripts, asks the question about whether or not Andy Taylor committed fraud, and has Vo's statement.