David Rogers v. Gregorio "Greg" Casar

Opinion

ACCEPTED 03-15-00505-CV 7568197 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/27/2015 5:20:33 PM JEFFREY D. KYLE CLERK

No. 03-15-00505-CV

IN THE THIRD COURT OF APPEALS OF TEXAS

DAVID A. ROGERS Appellant v. FILED IN GREGORIO “GREG” CASAR, 3rd COURT OF APPEALS AUSTIN, TEXAS Appellee 10/27/2015 5:20:33 PM JEFFREY D. KYLE Clerk

Appeal from the 201st District Court Travis County, Texas

BRIEF OF APPELLANT

David Rogers Texas Bar No. 24014089 Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 Telephone: (512) 923-1836 Fax: (512) 201-4082

ATTORNEY FOR APPELLANT

ORAL ARGUMENT NOT REQUESTED No. 03-15-00505-CV

DAVID A. ROGERS, Appellant v.

GREGORIO “GREG” CASAR, Appellee

David Rogers Texas Bar No. 24014089 Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 Telephone: (512) 923-1836 Fax: (512) 201-4082

ORAL ARGUMENT NOT REQUESTED

Rogers Appellant Brief p. ii IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties, as well as the names and addresses of all counsel:

PARTIES

Appellants/Plaintiffs:

Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney for Appellant Dr. Laura Pressley

David A. Rogers Texas Bar No. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836 — Telephone 512-201-4082 — Facsimile Email: Firm@DARogersLaw.com Pro Se

Appellees/Defendants: Charles 'Chuck' Herring Jr. 09534100 cherring@herring-irwin.com Jess Irwin - 10425700 jess@herring-irwin.com Lauren Ross – 24092001 laurenbross@herring-irwin.com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580

Rogers Appellant Brief p. iii Kurt Kuhn – 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002- Facsimile ATTORNEYS FOR APPELLEE, GREGORIO "GREG" CASAR

Rogers Appellant Brief p. iv TABLE OF CONTENTS

Identity of Parties and Counsel…………………………………………iii

Table of Contents……………………………………………………….v

Index of Authorities…………………………………………………….vi

Statement on Oral Argument……………………………………………1

Statement of the Case………………………………..………………….1

Statement of Facts………………………………………………………5

Issues Presented…………………………………………………………5

Summary of Argument………………………………………………….7

Argument…………………………………………………………….….8

Prayer…………………………………………………………………..18

Certificate of Service…………………………………………..………18

Certificate of Compliance…………………………………………..…19

Rogers Appellant Brief p. v INDEX OF AUTHORITIES

TEXAS SUPREME COURT

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000)…………….15 City of Tyler v. Beck, 196 S.W.3d 784, 787 (Tex. 2006) …………………………12 In Re Users System Services, Inc., USSI Computer Services, Inc., 22 S.W.3d 331, 336 (Tex. 1999) ………………………………………………………………..…12 Low v. Henry, 221 S.W.3d 609, 622 n.5 (Tex. 2007) ………………..…8, 9, 10, 17 R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S. W3d 619, (Tex. 2011) ………………………………………………..……………9 Tarrant Appraisal Dist. v. Moore, 845 S. W2d 820, 823 (Tex. 1993)…………….9 Tex. Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (1993)..10, 11, 16 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)…………..…………….…………………………………………………….11 Tex. Dep't of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004). …………...…………………………………………………9

TEXAS COURTS OF APPEALS

Barnes v. Sulak, 2002 Tex. App. LEXIS 5727 (Tex.App. – Austin 2002) ……..13 Ebert v. Day, 2004 Tex. App. LEXIS 11043 (Tex.App. – Austin 2004) ……..... 12 Harris County Appraisal District, v. KMI Yorktown LP, 2010 Tex. App. LEXIS 3201 (Tex.App. – Houston [1st Dist.] 2010)… …………………………………..15 Heritage Gulf Coast Props. v. Sandalwood Apts., Inc., 416 S.W.3d 642 (Houston [14th Dist.] 2013)………………………………………………………………….9 In re Marriage of Landry, 2014 Tex. App. LEXIS 3954 (Tex.App. – Waco 2014) …………………………………………………………………………………….14 In re News Am. Publ'g, 974 S.W.2d 97, 103 (Tex.App. – San Antonio 1998) …..15 In the Interest of K.L.R., 162 S.W.3d 291, 299 (Tex.App. – Tyler 2005) ……….12 In the Interest of T.K.W., 2010 Tex. App. LEXIS 1040, *11, 2010 WL 546584 (Tex. App. San Antonio Feb. 17, 2010)………………………………….………16 Joyner v. Comm'n for Lawyer Discipline, 102 S.W.3d 344 (Tex.App. – Dallas 2003) …………………………………………………………………………….15 McCarty v. Rooney, 2000 Tex. App. LEXIS 3408 n. 1 (Tex.App. – Houston [14th Dist.] 2000) ……………………………………………………………………….14 Morin v. Boecker, 122 S.W.3d 911, 914 (Tex.App. – Corpus Christi 2003) …….14 Palmer v. Cantrell, 747 S.W.2d 39, 41 (Tex.App. – Houston [1st Dist.] 1988) ….14 Randolph v. Jackson Walker, L.L.P., 29 S.W.3d 271 (Tex. App.-Houston [14th Rogers Appellant Brief p. vi Dist.] 2000, pet. denied)……………………………………………………..……16 Shook v. Shook, 2010 Tex. App. LEXIS 3864 (Tex.App. – Houston [1st Dist.] 2010) ……………………………………………………………………………...11 Sunbeam Envtl. Servs. v. Tex. Workers' Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex.App. – Austin 2002) ………………………………………………………...15

STATUTES

Texas Civil Practice and Remedies Code Chapter 10 ………………4, 6, 9, 10

TEXAS RULES OF CIVIL PROCEDURE

Texas Rule of Civil Procedure 8 …………………………4, 5, 7, 8, 11, 12, 13 Texas Rule of Civil Procedure 13 ……………………………………………4, 9

Rogers Appellant Brief p. vii TO THE HONORABLE THIRD DISTRICT COURT OF APPEALS:

1. Appellant, David A. Rogers (hereinafter “Rogers”), hereby pleads that the

honorable Court of Appeals reverse the sanctions order of the district court and

render an decision denying Appellee’s motion for sanctions against Rogers, and in

support of this appeal shows this honorable Court as follows:

Statement on Oral Argument

2. As this case is not legally complex, and as the facts are straightforward,

Rogers does not request oral argument. In the event the Court finds that oral

argument would be helpful, Rogers requests to participate in such argument.

Statement of the Case

3. Appellant is David A. Rogers (hereinafter “Rogers”).

4. Laura Pressley is a contestant of the 2014 run-off election for the District 4

City Counsel seat of Austin, Travis County, Texas. Ms. Pressley (hereinafter

“Pressley”) is an appellant of said contest in this consolidated appeal, Appeal

Number 03-15-00368-CV.

5. Gregorio "Greg" Casar (hereinafter (“Appellee”) won the 2014 run-off

election for the District 4 City Counsel seat of Austin, Travis County, Texas.

Appellee is the contestee in the Pressley’s contest of the of the 2014 run-off

election.

Rogers Appellant Brief p. 1 6. As noted in Pressley’s brief (p. 3), the record is long and confusing.1 On

January 30, 2015 Pressley, through Rogers, filed her Original Contest of Election,

Motion to Modify Discovery Deadlines, and Requests for Disclosure and

Production of Documents for the Office of the Austin City Council, District 4.

(070215 CR 3-40)

7. On April 16, 2015, Pressley filed Contestant’s Notice of Designation of

Lead Counsel. (070215 CR 447-48). Therein, Pressley designated Mark Cohen,

Esq., as lead counsel in the election contest in the trial court below, replacing

Rogers as lead counsel and demoting him to co-counsel. Shortly after Cohen’s

designation, Pressley was deposed by Casar’s trial counsel. Cohen defended that

deposition. During that deposition, Pressley did not specifically name persons who

were disenfranchised by the closure and consolidation of election precincts.

(070215 CR 603-606)

8. On April 20, Pressley filed her Fifth Amended Contest. (072915 Sup.CR

339-376) Thereon, Mr. Cohen, then lead counsel, is listed in the signature block.

(072915 Sup.CR 375) On April 23, 2015, Casar filed his Motion to Strike

Pleadings (the Fifth Amended Contest) and for Sanctions. (070215 Sup.CR 479-

1 References to the record in Rogers brief will be by the date of the record and page number therein. 2 In Casar’s Amended Motion for Sanctions, filed 5-22-2015, Casar complained of the 6th Amended Contest, which omitted some of the materials complained of in the 5th Amended Contest. (080715 CR 3-7) Similar complaints were made in the Second and Third Amended Motion for Sanctions, filed 6-12-2015. (080715 CR 8-12) (072915 CR 1934-1939) 3 Rogers includes by reference here the specific arguments made in his response to the Third Amended Motion for Sanctions. (172915 CR 1940-1947.) Rogers Appellant Brief 4 p. 2

Low v. Henry, 221 S.W.3d 609, 622 n.5 (Tex. 2007)

487) This was Casar’s first motion for sanctions. The motion specifically and

clearly referenced only the Fifth Amended Contest. (070215 Sup.CR 482-483) On

April 24, 2015, Mr. Cohen communicated via email with the trial court and

opposing counsel negotiating and coordinating discovery. (070215 CR 4497)

9. On May 4, 2015, Pressley served her Notice Of Deposition On Oral

Testimony Of A Representative Of Travis County Clerk's Office. (070215 CR

4488-4492) Thereon, Mr. Cohen is listed in the signature block. (070215 CR 4497-

4500)

10. On May 11, 2015, Mr. Cohen conducted the deposition of Dana Debeauvoir,

Travis County Clerk in charge of elections. (070215 CR 1881-2013) Rogers

neither attended (070215 CR 1882) nor conducted (070215 CR 2012-2013) the

deposition of the Travis County Clerk.

11. On May 18, 2015, Mr. Cohen emailed opposing counsel regarding the

privilege log opposing counsel provided. (070215 CR 4531) On May 19, 2015,

Pressley filed her Sixth Amended Contest. (070215 CR 860-1880). Thereon, Mr.

Cohen is listed in the signature block. (070215 CR 913). On May 20, 2015,

Appellant filed her Motion to Compel. (070215 CR 4501-4510) Thereon, Mr.

Cohen is listed in the signature block. (070215 CR 4507-4508)

12. On May 26, 2015, Pressley filed her Contestant’s Response to Contestee’s

Motion to Strike Pleadings and for Sanctions (072915 Sup.CR 1525-1933). Mr.

Rogers Appellant Brief p. 3 Cohen is again listed in the signature block. (072915 Sup.CR 1531) Also, on May

26, 2015, Pressley filed her Contestant’s Response to Third Party's Motion for

Protective Order. (070215 CR 4606-4617) Mr. Cohen is again listed in the

signature block. (070215 CR 4615)

13. Rogers asserts that the trial court, Honorable Dan Mills presiding, erred

in granting sanctions against Rogers. Texas Rule of Civil Procedure 8 makes

clear that the lead attorney is the party responsible for the pleadings. The

motion for sanctions was based on the factual allegations asserted in the 5th and

6th Amended Contests.2 At the time the allegedly violative pleadings were filed,

Cohen was the attorney-in-charge of the case responsible for the filings, not

Rogers. Consequently, as a matter of law, Rogers was not responsible for those

filings for purposes of imposing sanctions.

14. Rogers further asserts that the trial court, Honorable Dan Mills

presiding, erred in granting sanctions against Rogers based on the allegations

in the pleadings and the responses to Contestee’s motion for no evidence summary

judgment because said allegations were sufficiently supported by evidence to

comply with Texas Civil Practice and Remedies Code Chapter 10 and Texas Rule

of Civil Procedure 13 and defeat Appellee’s no evidence motion for summary

2 In Casar’s Amended Motion for Sanctions, filed 5-22-2015, Casar complained of the 6th Amended Contest, which omitted some of the materials complained of in the 5th Amended Contest. (080715 CR 3-7) Similar complaints were made in the Second and Third Amended Motion for Sanctions, filed 6-12-2015. (080715 CR 8-12) (072915 CR 1934-1939) Rogers Appellant Brief p. 4 judgment.3 Consequently, as a matter of law, Rogers was not subject to sanctions.

Statement of Facts

15. Rogers adopts, incorporates, and includes by reference Pressley’s Statement

of Facts set forth in Pressley’s Appeal Brief as if fully set forth herein. Rogers

adds below the following facts set forth in the record.

16. On June 3, 2015, Mr. Cohen emailed Rogers, terminating Rogers’

representation of Pressley. In response to Mr. Cohen’s email, Rogers, that same

day requested confirmation from Pressley. Pressley confirmed that she authorized

Mr. Cohen’s email terminating Rogers as her representative. (080715 CR 13-15)

17. On June 15, 2015, Mr. Cohen filed the Notice of Accelerated Appeal on

behalf of Pressley. (070215 CR 5224-25) This honorable Court recognized his

position as the attorney responsible for Pressley’s case. (070215 CR 5226)

Issues Presented

18. Issue 1. Was the Court without jurisdiction to order sanctions against an

attorney other than the attorney in charge based solely on pleadings filed?

19. Issue 2. Did the trial court abuse its discretion by imposing sanctions

without regard to Texas Rule of Civil Procedure 8? Did the court err in granting

sanctions against Rogers based on the factual allegations asserted in the 5th and

3 Rogers includes by reference here the specific arguments made in his response to the Third Amended Motion for Sanctions. (172915 CR 1940-1947.) Rogers Appellant Brief p. 5 6th Amended Contests, when those Amended Contests were filed after Pressley

replaced Rogers as attorney-in-charge by designating Cohen as lead counsel?

20. Issue 3. Did the Court abuse its discretion in setting the amount of the

sanctions without finding a direct nexus between the improper conduct and the

sanction imposed, and without finding bad faith on Rogers’ part?

21. Issue 4. Was the right to seek sanctions foreclosed and barred by the

language of the only final judgment during the court’s plenary power, or by the

Rule 11 agreement that all issues between the parties were resolved for purposes of

imposing sanctions?

22. Issue 5. Did the trial court commit reversible error by granting appellee’s

motion for no evidence summary judgment?

Sub Issue 1. Did the trial court commit reversible error by preventing

appellant from obtaining discoverable documents?

Sub Issue 2. Did the trial court err by imposing sanctions after it erred by

granting a no-evidence motion for summary judgment without reading the

summary judgment evidence?

Sub Issue 3. Did the trial court commit reversible error by imposing

sanctions after it erred granting appellee’s motion for no evidence summary

judgment when appellant produced more than a scintilla of evidence?

23. Issue 6. Did the trial court err by awarding sanctions against Rogers under

Rogers Appellant Brief p. 6 Chapter 10 of the Civil Practices and Remedies Code?

Summary of Argument

24. Rogers filed the original election contest. Beginning with the April 16,

2015 Notice of Designation of Lead Counsel, Mark Cohen was the attorney-in-

charge, responsible for all subsequent filings in the case. TEX. R. CIV. PRO. 8.

Rule 8 states:

RULE 8. ATTORNEY-IN-CHARGE On the occasion of a party's first appearance through counsel, the attorney whose signature first appears on the initial pleadings for any party shall be the attorney-in- charge, unless another attorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney-in-charge shall be responsible for the suit as to such party. All communications from the court or other counsel with respect to a suit shall be sent to the attorney-in-charge.

(Emphasis added.)

24. Casar therefore lacked standing to move for sanctions against Rogers based

on post April 16, 2015 pleadings because Rogers was no longer the attorney-in-

charge of Pressley’s election contest. Casar lacked standing to seek sanctions from

Rogers. Standing is essential to a court’s jurisdiction. The trial court therefore

lacked jurisdiction to award sanctions against Rogers. The trial court could not

sanction Rogers on that basis.

25. Though this jurisdictional challenge was not raised below, a court’s

Rogers Appellant Brief p. 7 jurisdiction may be challenged for the first time on appeal.

26. Based on the documents presented to the trial court, there was no basis for

awarding attorney’s fees against Rogers related to filing the Fifth or Sixth

Amended Contest or Contestant’s Response to Contestee’s Motion for Summary

Judgment, all filed after Cohen was designated as lead counsel.

27. Rogers adopts Pressleys’ Brief, excepting Pressley’s arguments on pages 57-

58 regarding the third Low4 factor. Pressley’s claims, both before and after the date

Cohen became lead counsel were sufficiently supported by fact and law and

adequate investigation was made under the existing circumstances. The multiple

amendments are proof that Pressley’s counsel were responsive to the obligation to

promptly amend pleadings as new facts were uncovered.

28. Rogers requests this honorable Appeals Court reverse and render, denying

Casar’s motion for sanctions against Rogers.

Argument

Issues 4-6

29. Rogers adopts, incorporates, and includes by reference the facts, record

citations, case law citations, and arguments set forth in Pressley’s Appellant’s Brief

in Appeal No. 03-15-00368-CV as to Issues 4-6 of Rogers Brief of Appellant in

Rogers Appellant Brief p. 8 Appeal No. 03-15-00505 except for, and particularly excluding, Pressley’s

arguments on pages 57-58 regarding the third Low5 factor.

30. All claims of Pressley asserted by Rogers during the course of this election

contest were sufficiently supported by fact and law, in compliance with Texas Rule

of Civil Procedure 13, to meet the pleading requirements, and defeat Appellee’s

no-evidence summary judgment, and, therefore, preclude the imposition of

sanctions against Rogers pursuant to Texas Civil Practice and Remedies Code

Chapter 10.6

31. Furthermore, “The mere fact that a trial court granted summary judgment or

a jury rejected a plaintiff’s claim doesn’t justify sanctions under CPRC 10.01.”

Heritage Gulf Coast Props. v. Sandalwood Apts., Inc., 416 S.W.3d 642, 663

(Houston [14th Dist.] 2013). This is directly contrary to the theory advanced by

Casar: “In the present case, the Court granted Mr. Casar's no-evidence summary

judgment motion. Thus, the Court has already held that Ms. Pressley failed to

present evidence raising a genuine issue of material fact. This ruling shows that

Ms. Pressley failed to meet the § 10.001(3) evidentiary-support requirement.”

(072915 CR 2025) Casar baldly claims that every successful no-evidence

5 Low v. Henry, 221 S.W.3d 609, 622 n.5 (Tex. 2007) 6 Rogers also refers this honorable Court to the arguments in Pressley’s Sixth Amended Contest (070215 CR 904 to 909) for the proposition that agency interpretation cannot supercede the literal text of the statute as the will of the Legislature citing R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S. W3d 619, 625 (Tex. 2011); Tarrant Appraisal Dist. v. Moore, 845 S. W2d 820, 823 (Tex. 1993)); Texas Dep't of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004). Rogers Appellant Brief p. 9 summary-judgment gives rise to a CPRC 10.001(3) action for sanctions. This is

plainly not the law.

32. Pressley’s argument regarding the third Low factor is addressed in Rogers’

appellant’s brief below.

Issue 1: Lack of Jurisdiction

33. Rogers asserts the trial court lacked jurisdiction to award sanctions against

him because Casar lacked standing obtain sanctions against Rogers.

Standing and Jurisdiction

34. The Texas Supreme Court, in Texas Ass'n of Business v. Texas Air Control

Bd., 852 S.W.2d 440, 444-46 (1993), explained the relationship between standing

and subject matter jurisdiction:

Subject matter jurisdiction is essential to the authority of a court to decide a case. Standing is implicit in the concept of subject-matter jurisdiction. . . . Under the Texas Constitution, standing is implicit in the open courts provision, which contemplates access to the courts only for those litigants suffering an injury. . . . Because standing is a constitutional prerequisite to maintaining a suit under both federal and Texas law, we look to the more extensive jurisprudential experience of the federal courts on this subject for any guidance it may yield. Under federal law, a lack of standing deprives a court of subject matter jurisdiction because standing is an element of such jurisdiction. Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties. Because we conclude that standing is a component of subject matter

Rogers Appellant Brief p. 10 jurisdiction, it cannot be waived and may be raised for the first time on appeal. . . . Because standing is a component of subject matter jurisdiction, we consider TAB's standing under the same standard by which we review subject matter jurisdiction generally. That standard requires the pleader to allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. The general test for standing in Texas requires that there "(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought."

Texas Rule of Civil Procedure 8

35. Questions of law are reviewed by the appellate court de novo.7 In Shook v.

Shook, 2010 Tex. App. LEXIS 3864 (Tex.App. – Houston [1st Dist.] 2010), the

court, considering the application of Texas Rule of Civil Procedure 8, held:

The dispositive issue in this appeal deals with the application of the rules of civil procedure to undisputed facts, which is a question of law we review de novo. See Moore v. Wood, 809 S.W.2d 621, 623 (Tex. App.--Houston [1st Dist.] 1991, no writ) (holding rules of statutory construction also apply to rules of procedure).

36. Rogers asserts that Casar did not have a right to relief against him for

sanctions. Texas Rule of Civil Procedure 8 states, in pertinent part:

RULE 8. ATTORNEY-IN-CHARGE On the occasion of a party's first appearance through counsel, the attorney whose signature first appears on the initial pleadings for any party shall be the attorney-in- charge, unless another attorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney- in-charge shall be responsible for the suit as to such party. (Emphasis added)

7 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) Rogers Appellant Brief p. 11 Lead Counsel Designation

37. On January 30, 2015, Pressley filed her Original Contest of Election signed

by Rogers. (070215 CR 3-40) Pursuant to Rule 8, Rogers, upon filing of the

original petition, was the attorney-in-charge of Pressley’s case in state court. On

April 16, 2015, Pressley filed Contestant’s Notice of Designation of Lead Counsel

signed by Mark Cohen. (070215 CR 477-78). Therein, Pressley designated Mark

Cohen, as lead counsel in the election contest in the trial court below, replacing

Rogers as lead counsel and demoting him to co-counsel. See City of Tyler v. Beck,

196 S.W.3d 784, 787 (Tex. 2006) (“ Rule 8 of the Texas Rules of Civil Procedure

provides that "[a]ll communications . . . with respect to a suit shall be sent to the

attorney-in-charge," and that any change of that designation must be made by

written notice to the court and the other parties. TEX. R. CIV. P. 8”); In Re Users

System Services, Inc., USSI Computer Services, Inc., 22 S.W.3d 331, 336 (Tex.

1999) (“Rule 8 of the Texas Rules of Civil Procedure makes a party's ‘attorney-in-

charge’ ‘responsible for the suit as to such party’. . . “); In the Interest of K.L.R.,

162 S.W.3d 291, 299 (Tex.App. – Tyler 2005)(“ . . . [T]he attorney whose

signature first appears on the initial pleadings for any party shall be the attorney-in-

charge, unless another attorney is specifically designated therein.”); Ebert v. Day,

2004 Tex. App. LEXIS 11043 (Tex.App. – Austin 2004)(citing TEX. R. CIV. P. 8).

Rogers Appellant Brief p. 12 38. In this case, a designation in writing was filed by Pressley making Mr.

Cohen the lead counsel, and, therefore, attorney-in-charge. Tex. R. Civ. P. 8. Mr.

Cohen’s name and bar card number appear in every subsequent pleading and other

document filed after April 16, 2015 with the trial court in this case. Although Mr.

Cohen did not sign all the documents filed in this case, his appearance in the

signature block shows that he continued to function as the attorney-in-charge of the

case. Barnes v. Sulak, 2002 Tex. App. LEXIS 5727 (Tex.App. – Austin 2002)

(“The designation of an attorney-in-charge serves primarily to alert the court and

other parties who is responsible for the conduct of the lawsuit for that party . . . .

[T]he county attorney, was listed in the signature block, giving the motion the

imprimatur of the designated attorney-in-charge.”)

39. Once he was designated, Mr. Cohen exercised his authority as lead counsel.

On April 20, Mr. Cohen filed Contestants' Fifth Amended Original Contest Of

Election, Motion to Modify Discovery Deadlines, and Requests For Disclosure for

the Office of the Austin City Council, District 4. 072915 CR 339-376) On April

24, 2015, Mr. Cohen negotiated the terms of discovery in this accelerated

proceeding. (070215 CR 4497-4500). On May 4, 2015, Mr. Cohen issued a

deposition notice to the primary witness, the Travis County Clerk. (070215 CR

4488-4490) On May 11, 2015, Mr. Cohen deposed the Travis County Clerk.

(070215 CR 4543 - 4576).

Rogers Appellant Brief p. 13 40. On May 19, 2015, Mr. Cohen filed Pressley’s Sixth Amended Contest

(070215 CR 860 – 915). During the May 26, 2015 hearing on summary judgment,

the trial court recognized Mr. Cohen as lead counsel in the case. (RR Vol. 3, page

4, lines 11-12) Moreover, when the trial court asked who was speaking on behalf

of Pressley, Mr. Cohen said, “I will”.8 (RR Vol. 3, page 14, lines 14-17) Mr.

Cohen terminated Rogers’ representation of Pressley, which she confirmed.

(080715 CR 13-15)

41. Courts around the state have consistently recognized the responsibilities of

the attorney-in-charge based on being so designated. See Morin v. Boecker, 122

S.W.3d 911, 914 (Tex.App. – Corpus Christi 2003) (“Rule 8 designates an

‘attorney-in-charge’ so that the ‘attorney-in-charge . . . [can] be [held] responsible

for the suit as to such party.’”); Palmer v. Cantrell, 747 S.W.2d 39, 41 (Tex.App. –

Houston [1st Dist.] 1988) (“Where a single adverse party is represented by two

attorneys who are not associated in a firm, we believe that it is sufficient to serve

the attorney who is designated as lead counsel because he has ‘control in the

management of the cause. . . .’"); McCarty v. Rooney, 2000 Tex. App. LEXIS 3408

n. 1 (Tex.App. – Houston [14th Dist.] 2000)(quoting Rule 8); In re Marriage of

8 Rogers asserts that Pressley’s argument regarding the trial court reviewing the summary judgment evidence (RR Vol. 3, p. 20, line 22 through p. 21, line 22) may have also been the case with other non-dispositive and non-discovery related filings in the case. Despite the April 16 Notice of Designation of Lead Counsel, the trial court did not appear to recognize Mr. Cohen as lead counsel. (RR Vol. 3, p. 14, line 14 – 16)(“But what I want to ask Mr. Cohen that I don't know -- Mr. Rogers is here. I don't know who is going to speak for Dr. Pressley.”) Nevertheless, Mr. Cohen announced his position at this hearing, infra. Rogers Appellant Brief p. 14 Landry, 2014 Tex. App. LEXIS 3954 (Tex.App. – Waco 2014)(quoting Rule 8);

Joyner v. Comm'n for Lawyer Discipline, 102 S.W.3d 344, 347 (Tex.App. – Dallas

2003)(“. . . [A]ttorney whose signature first appears on initial pleadings for any

party "shall be the attorney-in-charge, unless another attorney is specifically

designated therein," "said attorney-in-charge shall be responsible for the suit as to

such party,"); In re News Am. Publ'g, 974 S.W.2d 97, 103 (Tex.App. – San

Antonio 1998)(citing Rule 8); Sunbeam Envtl. Servs. v. Tex. Workers' Comp. Ins.

Facility, 71 S.W.3d 846, 851 (Tex.App. – Austin 2002)(citing Rule 8); Shook, id.

42. Casar sought sanctions based on Pressley’s Fifth and Sixth Amended

Original Contests. (072915 Sup.CR 1934-1938) Mr. Cohen was the attorney-in-

charge of the filing of Pressley’s Fifth and Sixth Amended Original Contests.

Casar lacked standing to seek or receive sanctions from Rogers for filing

Pressley’s Fifth or Sixth Amended Original Contest when Mr. Cohen was, by

virtue of the prior pleadings on file in the case, responsible for the filing of both the

Fifth and Sixth Amended Contests.

43. “Standing is a component of subject-matter jurisdiction that cannot be

waived.” Harris County Appraisal District, v. KMI Yorktown LP, 2010 Tex. App.

LEXIS 3201 (Tex.App. – Houston [1st Dist.] 2010)(quoting Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000)). “If a party has no standing, a trial

court has no subject-matter jurisdiction to hear the case.” Id. Casar did not have

Rogers Appellant Brief p. 15 standing to recover sanctions against Rogers, and, thus, the trial court lacked

jurisdiction, to award sanctions against Rogers.

44. Pursuant to Texas Rule of Civil Procedure 8, based on Pressley’s April 16,

2015 designation of Mr. Cohen as lead counsel, Rogers was not the attorney

responsible as a matter of law. Sanctions against Rogers were not authorized.

Issue #2: Abuse of Discretion in Awarding of Sanctions

45. Rogers asserts the abused its discretion in awarding sanctions against him

because Casar lacked standing to seek sanctions against Rogers. “A trial court's

award of sanctions is reviewed under an abuse of discretion standard. To determine

if there is an abuse of discretion, we must look to see if the court acted without

reference to any guiding rules and principles." In the Interest of T.K.W., 2010 Tex.

App. LEXIS 1040, *11, 2010 WL 546584 (Tex. App. San Antonio Feb. 17, 2010)

(internal citations omitted.) “A trial court abuses its discretion in imposing

sanctions if it bases its order on an incorrect view of the law or an erroneous

assessment of the evidence.” Randolph v. Jackson Walker, L.L.P., 29 S.W.3d 271,

276 (Tex. App.-Houston [14th Dist.] 2000, pet. denied).

46. As the Texas Supreme Court wrote in Texas Ass'n of Business v. Texas Air

Control Bd., 852 S.W.2d 440, 446 (1993): “The general test for standing in Texas

requires that there ‘(a) shall be a real controversy between the parties, which (b)

will be actually determined by the judicial declaration sought.’”

Rogers Appellant Brief p. 16 47. There was no real controversy between the parties that could be resolved by

the motion for sanctions, because Casar’s controversy was against the party

responsible for the Fifth and Sixth Amended Petitions, which, as a matter of TRCP

8, was Cohen, not Rogers. A judicial declaration about the conduct of Rogers

would not resolve the controversy between Casar and Cohen. Casar therefore had

no standing to seek sanctions against Rogers for the filing of the Fifth and Sixth

Amended Contests. The ruling by the trial court, therefore, exceeded its

jurisdiction and was an abuse of discretion.

Issue #3: Abuse of Discretion in the Amount of Sanctions

48. “To determine if the sanctions were appropriate or just, the appellate court

must ensure there is a direct nexus between the improper conduct and the sanction

imposed. Generally, courts presume that pleadings and other papers are filed in

good faith. The party seeking sanctions bears the burden of overcoming this

presumption of good faith.” Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007).

(internal citations omitted.)

49. In this case, the court did not find a nexus between improper conduct by

Rogers and a sanction of $50,000. Additionally, though the Court expressly found

that Pressley acted in bad faith9 (080715 CR 47), it made no such finding with

9 The trial court found bad faith by Pressley in “false allegations of criminal activity against Travis County Director of Elections Michael Winn,” though, in fact, no such allegations were made or appear anywhere in the record of this case. See Pressley Appellate Brief at p. 50-51, Rogers Appellant Brief p. 17 regard to Rogers. The Court must find, therefore, that Casar did not overcome the

presumption of good faith as to Rogers. Therefore, any sanction at all is unjust.

50. Rogers prays that this Court reverse and render, denying Casar’s request for

sanctions in its entirety.

Prayer 51. Rogers respectfully requests that the Court reverse the sanctions order of the District Court in all things and render a judgment denying the sanctions awarded by the District Court against him.

RESPECTFULLY SUBMITTED,

/s/ David Rogers DAVID ROGERS Law Office of David Rogers State Bar No. 24014089 1201 Spyglass Drive, Suite 100 Austin, TX 78746 (512) 923-1836 (512) 201-4082 (fax) Firm@DARogersLaw.com

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was served upon Counsel of record for Appellants via the Court’s online filing system on this 21th day of October, 2015. Kurt Kuhn State Bar No. 24002433 KUHN HOBBS PLLC 3307 Northland Drive, # 310

paragraph 7. Rogers Appellant Brief p. 18 Austin, Texas 78731 (512) 476-6000 Telephone (512) 476-6002 Facsimile Kurt@KuhnHobbs.com

Charles 'Chuck' Herring Jr. State Bar No. 09534100 Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 (512) 320-0665 Telephone (512) 519-7580 Facsimile cherring@herring-irwin.com ATTORNEYS FOR APPELLEE GREGORIO “GREG” CASAR

Mark A. Cohen / SBN: 04508400 805 West 10th Street, Suite 100 Austin, Texas 78701 (512) 474-4424 Telephone (512) 472-5444 Facsimile mark@cohenlegalservices.com ATTORNEY FOR APPELLANT DR. LAURA PRESSLEY

/s/ David Rogers DAVID ROGERS Pro Se CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this document contains 4182 words.

__/s/__David Rogers___________ David Rogers SBN 24014089 Rogers Appellant Brief p. 19 Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 (512) 923-1836 (512) 201-4082 [Facsimile]

Rogers Appellant Brief p. 20 1/30/2015 3:47:32 PM Velva L. Price District Clerk Travis County D-1-GN-15-000374 D-1-GN-15-00037 4 No. _ _ _ __

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § v. § § GREGORIO "GREG" CASAR § Contestee § OF TRAVIS COUNTY, TEXAS § 201ST § --- th JUDICIAL DISTRICT

CONTESTANTS' ORIGINAL CONTEST OF ELECTION, MOTION TO MODIFY DISCOVERY DEADLINES, AND REQUESTS FOR DISCLOSURE AND PRODUCTION OF DOCUMENTS FOR THE OFFICE OF THE AUSTIN CITY COUNCIL, DISTRICT 4

NOW COMES, Laura Pressley, Contestant, and files this Original Petition for Election

Contest for the Office the Austin City Council, District 4 (Petition) against Gregorio "Greg"

Casar, Contestee. The election was held on December 16, 2014 and canvassed on December

30, 2014. In support of this election contest, Dr. Pressley will respectfully show as follows:

I. Discovery

1. The contestant intends that discovery be conducted under level three, a custom discovery

plan for election contest devised with the approval of the court.

2. Pursuant to Texas Rule of Civil Procedure 194, and the motion set forth below, the plaintiff

requests that the defendants, within fifteen days of the service of this document, disclose the

information and material described in Rule 194.2.

II. Summary

3. This contest is based on deprivation of voting rights of voters in two high population polling

locations which were improperly closed, irregularity in votes counted or not counted, and a failure to

comply with the Texas Election Code requirement for storing, retrieval and printing of images of

Pressley v. Casar OP Contest p.l 3 ballots cast in electronic voting machines. Travis County uses electronic voting machines from Hart

Intercivic to conduct elections within the county. 1 The result of these multiple irregularities is that

the result cannot be known, and the Court must order a new election. Dr. Pressley requests that such

an election be timely set, and conducted in compliance with the Texas Election Code and the

Secretary of State's regulations governing elections.

III. Parties

4. Contestant, Laura Pressley is a resident of Austin City Council District 4, Travis

County, Texas. She is a candidate in the Austin City Council District 4 Run Off Election on December

16, 2014.

5. Contestee, Gregorio "Greg" Casar is a resident of Austin City Council District 4, Travis

County, Texas. He was a candidate in the Austin City Council District 4 Run Off Election on

December 16, 2014. Casar may be served with process at his principal place ofbusiness, 301 W.

2nd Street, Austin, Texas, 78701.

6. The election results were canvassed on December 30, 2014 and Mr. Casar was declared the

victor.

7. A manual recount of all early voting, election day, and provisional cast vote records, and

1 Voters in different parts of the state utilize a number of different voting systems, all of which must first be certified by the Secretary of State. Tex. Elec. Code§ 122.001, .031. ... Once a system is The eSlate, a paperless DRE manufactured by Hart Intercivic, is one of a handful ofDREs the Secretary has certified. [6] See Voting Texas Secretary of State, http://www.sos.state.tx.us/elections/laws/votingsystems.shtml. Voters arriving at the polls in counties using the eSlate are given a unique access code. The voter enters the code into the eSlate, which then displays the ballot. Voters tum a dial to highlight their ballot choice and then press "enter" to make a selection. After a voter completes his selections, the eSlate displays a ballot summary page. If the voter's choices are correctly displayed, the voter presses the "cast ballot" button, and the vote is recorded. See Voter Instructions, Travis County, http://vlww. co. travis. tx. us/county_clerk/election/eS late/pdfs/English_Flyer_ 0 50923. pdf. Travis County purchased the eSlate system in 2001 and has used it since 2003. Andrade v. NAACP ofAustin, 345 S.\V.3d 1, 4, 5-6 (Tex. 2011) (footnotes omitted.)

Pressley v. Casar OP Contest p.2 4 mailed-in ballots was performed on January 6 2015. 2 The results of the election were unchanged and

Mr. Casar remained the victor for the Run Off election and was sworn into office on January 6, 2014.

He has been notified of the filing of this action by a delivery of a copy of this Petition in accordance

with TEX. ELEC. CODE§ 21.003(b).

IV. Jurisdiction and Venue

8. Jurisdiction and venue in this case are proper and mandatory in Travis County because

the office being sought is for a district entirely within the boundaries of Travis County under the

Texas Elections Code, Section 232.006.

V. Facts

9. City of Austin District 4, comprised of 18 voting precincts, is located entirely in Travis

County.

Early Voting

10. Early Voting for the Run Off Election for District 4 of the Austin City Council was held on

December 1 through December 12, 2014. 3 During Early Voting from December 1 through December

Iih, the Travis County Clerk's Office released daily Reports for voters that voted via Ballot By Mail,

and Early Voting.

11. During Early Voting, many election irregularities occurred. According to Travis Count

Election Division director Michael Winn, no Zero Tapes4 were printed for machines used in Early

2 Though the County Clerk termed the action a "manual recount," because the event as it occurred did not satisfy statutory criteria, Pressley does not concede that what occurred was actually a statutory manual recount as defined by the Texas Election Code. 3 In a typical election, election officials create ballots using Ballot Origination Software System ("BOSS"). The ballot definitions are fed by the Judge's Booth Controller ("JBC") to the eSlates attached to it. 4 A "zero tape" is run on the Judge's Booth Controller ("JBC") to ensure no votes reside in the system. When voters arrive they are given a JBC-generated PIN number that they enter on the

Pressley v. Casar OP Contest p.3 5 Voting to verify that prior to the first votes being cast, no votes were pre-registered on the machines. 5

This failure is in violation of Texas Secretary of State requirements. See Texas Secretary of State

(last visited 1-29-2014).

Election Day

12. Election Day was December 16, 2014. Many election irregularities occurred.

13. Voters seeking to vote at high-volume locations were improperly denied the right to cast

their vote. Disenfranchisement of District 4 voters occurred as a result of the closing of the two

highest volume District 4 voting locations on the Run Off Election Day, December 16, 2014. The

Highland Mall voting location at 6601 Airport Blvd was open during the General Election on

November 4, 2014 and saw some of the highest volume of voters in District 4. This location was

closed for the December Run Off election and was moved to the far less convenient Travis County

Tax Office (5501 Airport Blvd). The Pressley campaign received multiple reports of voters being

upset and confused because the voting location had been moved. The second highest voting

precinct and polling location in District 4 for the November General Election, was Precinct 222 at

Cooke Elementary (1511 Cripple Creek). That Precinct is comprised of more than 25% senior

voters who are 60 years and older. It was closed on Election Day for the December Run Off. It

was combined with the fourth lowest voter turnout location in District 4, Precinct 268, Grant AME

Worship Center at 1701 Kramer Lane. The Pressley campaign received reports that voters

eSlate. They then vote and the votes are stored on the eSlate, Mobile Ballot Boxes (MBB), and JBC. 5 Travis County received a waiver of the state requirement for such tapes for the general election only in a letter dated September 30, 2014, based on the burden of the extremely long statewide ballot. See attached September 30, 2014 letter from Texas Secretary of State. The run-off election ballot includes only City Council and Mayoral candidates. The run-off was restricted to two candidates in the races requiring a run-off, unlike the first round, in which as many as twelve candidates participated in some races.

Pressley v. Casar OP Contest p.4 6 showed up to Cooke Elementary for the December Run Off on Election Day and were upset and

confused and did not subsequently show up to vote at the Kramer location. This is voter

disenfranchisement of the two most critical, highest volume voting locations in District 4. For

example, there are 2,971 registered voters in Precinct 222 and only 545 voted in the December

6 election. This action by the Travis County Clerk had a disproportionate effect on minorities,

working people, and elderly voters of District 4, which is one of the Hispanic-opportunity districts

in the City of Austin. As a result, some voters registered at those locations were improperly

denied the right to cast their vote.

14. No zero tapes were printed at the countywide locations when the polls opened. The

Secretary of State ("SOS") has procedures requiring these activities. See Texas Secretary of State

Advisory 2012-03, 6(g)(vi), httg:/ (last

visited 1-29-2014).

15. On Election Day, no results tapes were printed at the countywide locations when closing

the polls. The SOS procedures require the printing of closing results tapes, also. Texas Secretary

of State Advisory 2012-03, 6(k)(iii)

16. On Election Day, Pressley campaign official poll watchers were denied access to signing

results tapes at two polling locations, Gus Garcia and Randall's at Research Blvd. This violates

Secreatry of State regulations requiring that poll watchers be allowed to sign such tapes. "The

presiding election judge, an election clerk, and not more than two watchers, if one or more

watchers are present, shall sign the results tape(s)." Texas Secretary of State Advisory 2012-03,

6(k)(i) (last visited 1-29-20 14).

6 Polling location charts for November and December are attached.

Pressley v. Casar OP Contest p.5 7 17. On Election Day, Pressley campaign official poll watchers not allowed access at Dobie

Middle School, where the most important ballots (for the Graham, Gus Garcia, and Virginia

Brown precincts) were placed in transit to central counting. Those boxes were the largest and

strongest Pressley boxes.

18. On Election Day, poll watchers were improperly denied access to Central Counting

activities with Mobile Ballot Boxes ("MBB"), Tally activities, and the like. 7

The Canvass

19. On Tuesday, December 30, 2014, the Mayor of Austin and the Austin City Council

7 Hart's eSlate System Hart's electronic (DRE) voting system is known as eSlate. The eSlate system is comprised of several distinct components. The Ballot Origination Software System ("BOSS") is used by election officials to define and create individualized electronic ballots. Data is entered once into BOSS and then flows through all components of the eSlate system. The Mobile Ballot Box ("MBB") is a reusable, portable flash memory card. It is used to store and transfer election information. When inserted into the Judge's Booth Controller, the MBB supplies election information and ballot styles, it stores an electronic representation of how votes were cast. Once voting has concluded the MBB is removed and its contents are tallied by the Tally software. The Judge's Booth Controller ("JBC") is the "brain" that manages the system, enabling poll workers to know which voting booths are in use at any time. The JBC issues access codes for the voters' use. It can control up to 12 daisy-chained eSlate units. eSlate refers to the system generally and to the device that voters use to cast ballots, unless using paper ballots, in which case Ballot Now is used. The eSlate may be equipped with a disabled access unit ("DAU") for use by disabled voters. The eSlate units are physically connected to the JBC, which stores cast-vote records. Tally is a software application that reads, stores, and tabulates the cast-vote records from the MBB (the portable flash card that transferred the cast-vote records from the JBC). Tally tabulates all early voting, absentee, and election day results, and produces various reports. Rally is a software application that is capable of reading, storing, and transferring cast-vote data from polling places or collection centers with respect to early returns. The System for Election Records and Verification Operations ("SERVO") software is an election records archiving and asset management system. SERVO is designed to recover data from equipment in the case of a lost or damaged MBB. SERVO also is designed for various recount purposes. Ballot Now is a digital-scan paper ballot system that manages the printing, scanning, and resolution of mailed-in paper ballots. It also records the electronic cast vote records to an MBB to be read and tabulated with Tally.

Pressley v. Casar OP Contest p.6 8 conducted an initial official canvass and certification for the Election Day results for all races

on the ballot, including City of Austin District 4. The canvassed and certified totals for District

4 were Laura Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast.

20. Comparison of the canvassed results with the Early Voting voter reports showed

inconsistencies in the results. Travis County reported that 2,651 total voters voted in Early Voting in

District 4. Reviewing the voter ID's, 437 entries existed for those submitting Ballot by Mail (BBM).

There were at least 28 duplicate entries for BBM. At least 28 mail-in votes appear to have been

counted twice. See Appendix A.

21. Once duplicate BBM's were removed, 2,622 voter names remained that voted in Early Voting

according to the Early Voting lists from Travis County that were distributed prior to Election Day,

December 16, 2014. Based on Travis County's Canvassed and Recount results for those that voted for

Greg Casar, or Laura Pressley or Under Voted, the total number ofballots cast for Early Voting is

2,701. Therefore, there are 79 more ballots than voters for Early Voting. These 79 extra ballots are

distributed among 15 of the 18 precincts of the District 4 Race. (One precinct, with one eligible voter,

showed no votes.) See Appendix B.

22. An initial review the 2,622 Early Voting voter names and addresses with returned mail,

about 14 of the voters had moved or no longer resided in District 4 and were not eligible to vote in

the District 4 Run Off Election. Therefore, at least 14 ineligible voters cast votes in this contest.

Statistical Improbabilities

23. A analysis of the voting results show a pattern of mathematical anomalies which is highly

unlikely to occur naturally. For the nine (9) precincts in District 4 with more than 200 voters, the

highest volume of voters, the ratio of votes that the Contestant received compared to Contestee is

the same ratio in theN ovember General Election (with a total of 8 candidates) as it was in the

Pressley v. Casar OP Contest p.7 9 December Run Off Election (with 2 candidates), 35.1% vs 35.0% respectively. In addition, the

average of the percentages of the unweighted precincts that the Contestant received compared to

Contestee, in the November General Election and the December Run Off, are also equal at equal

35.1% and 35.1 %, respectively. No other race in the City is within a lOx such a close non-

variation, and only two races are within 1OOx such a variation. See Appendix C.

24. Such a result strongly suggests hardware problems, software problems, procedural issues

or mishandling of machines which may have caused errors in tabulation or reporting.

25. A similar issue was observed for Early Voting (which typically experiences 1;2 the total

voting for an election). For the precincts with more than 100 voters, the highest volume of early

voters, the ratio of votes that the Contestant received compared to Contestee is the same ratio in

the Early Voting in the November General Election (with a total of8 candidates) as it was in the

Early Voting in the December Run Off Election (with 2 candidates), 36.7% vs 36.7% respectively.

Again, no other race in the City is within a 1Ox such a close non-variation, and only two races are

within lOOx such a variation. See Appendix D.

26. Such a result strongly suggests hardware problems, software problems, procedural issues

or mishandling of machines which may have caused errors in tabulation or reporting.

27. Contestant is concerned there may have been some hardware issues, software

malfunctions or mishandling that may have caused errors in the tabulation of the results.

Additionally, some number of ineligible voters appear to have cast votes.

The Recount

28. Given the highly improbable statistical anomalies, the duplicate Ballot by Mail entries,

and that there are more ballots than number of voters for Early Voting (overvotes), Contestant

requested a manual recount of the District 4 Election with the goal of reconciling the

Pressley v. Casar OP Contest p.8 10 discrepancies.

29. On January 4, 2015, the Mayor of Austin and City Clerk approved Contestant's

amended petition requesting a manual recount of actual stored balloting System. Contestant's

amended petition included a request to reconcile the ballots cast with the number of voters documented

on the sign in sheets and combination forms for District 4 for the countywide polling locations and

Precincts to ensure accurate reporting of results. The number of voters recorded and the number of votes

recorded did not match.

30. On January 5, 2015, prior to the Recount, Pursuant to TEX. ELEC. CODE§ 213.016,

"PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC

VOTING MACHINES," Dr. Pressley communicated over the phone with the Director of Travis

County Elections Division. Pressley informed the Director that she desired to be present during

the printing of images of ballots cast. "Each candidate is entitled to be present and to have

representatives present in the same number as prescribed by Section 213.013(b) for a recount

during the printing of the images." An email was sent to The Travis County Clerk and copied to

the Texas Secretary of State's Office, to the same effect.

31. On January 6, 2015, a manual recount was conducted and additional irregularities ensued

with regard to and during the recount.

No Ballot images

32. On Tuesday, January 6, 2015, at 11 :OOam when the recount was to begin, the Travis

County Clerk and the Recount Committee relayed to Contestant and her official recount watcher,

Karen Renick, the images of ballots cast were not available, would not be printed, and would not

Pressley v. Casar OP Contest p.9 11 be used for the recount. 8 Dr. Pressley expressly stated, in her "Petition Requesting a Recount,"

and "Amended Petition Requesting a Recount" that "[w]e are requesting a manual recount of the

results using the actual, stored, ballot images." Pressley also expressly requested "a manual (by-

hand) count." "[T]he election code expressly provides for the 'printing of images of ballots cast

using direct recording electronic voting machines for the purpose of a recount.' See id. § 213.016."

Andrade v. NAACP ofAustin, 287 S.W.3d 240, 258 (Tex. App. Austin 2009), rev'd on other

grounds by Andrade v. NAACP o.fAustin, 345 S.W.3d 1 (Tex. 2011). Failure to print images of

ballots violates this provision of the election code.

Printing errors

33. Prior to the start of the Recount, Travis County selected the data files to print and pre-

print an aggregated data file of Cast Vote Records (CVR's). The pre-printed CVR's contained a

subset of the data that a District 4 ballot contains. Upon starting the recount on January 6, 2014

around 11 :OOam, Contestant relayed to the Travis County Clerk and the Recount Committee, that

the lack of providing printed images ofballots cast were a violation of TEX. ELEC. CODE§

213.016.

34. Cast Vote Records are not "images ofballots cast." Ballots are defined in Texas Election

Code Chapter 52, Subchapter C. 9 Section 52.075 of the Subchapter also allows the Secretary of

8 See attached Affidavit of Karen Renick 9 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's

Pressley v. Casar OP Contest p.JO 12 State to "prescribe the form and content of a ballot" for electronic voting machines.

35. At the same meeting, Dr. Pressley stated that the pre-printing of recount records and

starting the recount process was also a violation of213.016 and 213.009(c), respectively. A

member of the recount committee responded to one of the recount watchers: "They started all this

on Sunday [January 4, 2015]."

36. Pressley warned the County Clerk that the irregularities, of not printing the images of

ballots cast, were in violation of the approved amended Petition for Recount and the CODE and

was grounds for an Incident Report. Printing the CVR data files were in essence, reprinting the

previous results obtained on Election night. A CVR is essentially nothing more than a tally sheet-

it does not "count" the images of ballots- it merely reprints the tally. It was not recounting the

source data of the images of the ballots cast, and as such it is not a meaningful check on the

original count. 10 Using the CVR instead of ballot image also appears to violate Texas Election

name."

(e) A square shall be printed to the left of each line provided for write-in voting under Section 52.066(c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.) 10 Secretary of State is somewhat unclear on this issue. While "images of ballots cast" could be considered as a subset of the category "cast vote records," the CVRs in this case are not, in fact, images. In logical terms, the expression would be that just because all A are B does not mean all B are A. (Dogs are animals, but not all animals are dogs.) In its 2014 Electronic Voting System Procedures bulletin, posted online at the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8 - Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEC § 214.071): 1. The candidate requesting a recount may request that the recount be done electronically or manually. 2.For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 3.For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue.

Pressley v. Casar OP Contest p.ll 13 Code 214.049 (e): "If electronic voting system ballots are to be recounted manually, the original

ballot, rather than the duplicate of the original ballot, shall be counted."

37. Contestant requested to conditionally proceed with the Recount and re-print the available

CVR data files.

38. Pursuant to TEX. ELEC. CODE§ 213.007, the machines, materials, programs, and

records may be available to the Recount Committee. Pursuant to TEX. ELEC. CODE§

213.013(h), each person entitled to be present at a recount is entitled to observe recount activities.

Contestant was not allowed to view the full recount process and how the recount data was selected

from the electronic voting machines. The CVR data files were identified, isolated and pre-selected

prior to the beginning of the Recount. Contestant requested to view the source and properties of

the CRV files, such as dates of the CRV files and origination, and was denied by the Recount

Committee Member, the Travis County Director of Elections.

Precinct Returns

39. Pursuant to TEX. ELEC. CODE§ 214.002, counting procedures for a recount shall be

certified in the same manner as the original count. Pursuant to TEX. ELEC. CODE§

4. The Recount Coordinator shall notify the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. 5. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. 6.If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. 7 .A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records.

Pressley v. Casar OP Contest p.l2 14 65.014(b )(1), the procedures for preparing the original precinct returns must state the total number

of voters who voted at the polling location as indicated by the poll list. Poll lists were not

apparently reviewed by the Recount Committee during the recount. Dr. Pressley requested the

poll lists to be reviewed and the number voters per precinct be reconciled with those documented

on the polling location combination sign-in forms. Pressley requested those numbers be

reconciled with the recount results, because of Early Voting voter lists discrepancies identified in

the Recount Petition. The request was denied by the Travis County Clerk, the Chair of the

Recount Committee, and the Director of Travis County Elections. The request was also

specifically made prior to the recount in the Amended Petition for Recount.

40. Pursuant to TEX. ELEC. CODE§ 213.012, the committee chair prepared a report of the

vote count. The chair wrote "The numbers of voters matched the number of ballots cast," and

signed the report. During the Recount, the numbers of voters on voter lists were not reconciled

with the ballots recounted by the chair.

41. On January 6, 2015, the recount was conducted and completed. After the recount, the

totals were unchanged as compared to the original canvassed results. The totals were Laura

Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast.

42. Reconciliation of voter signatures on rolls at polling locations and total ballots cast has

not been completed. An election contest is the only available remedy to explore the discrepancy

between the the number of ballots counted and the number voter names and signatures in the

precincts.

43. Various records will need to be obtained from Travis County election officials to ensure

that all the information is obtained and available to be analyzed to ensure that all votes that should

have been counted were counted and, in the alternative, that all illegal votes which should not have

Pressley v. Casar OP Contest p.l3 15 been counted are correctly removed from the vote totals.

44. The sum total of those voting irregularities exceeds the number of votes by which the

election was decided.

45. Because no images ofballots cast can be retrieved, printed and count, Travis County

cannot unequivocally determine the outcome of the election, and the election is void. As a matter

of law, the Court must therefore order a new election. TEX. ELEC. CODE§ 232.041.

VI. Petition Timely Filed

46. This Election Contest is brought in accordance with the provisions of TEX. ELEC. CODE

§ 232.008, which requires the Original Petition to be filed with the District Court not later than the

30th day after the date the official result of the contested election is determined.

47. On Tuesday, December 30th, the Mayor and City Council of Austin conducted an official

canvass and certification of the Run Off results for all races on the December 16, 2014 ballot,

including District 4. However a recount was conducted on January 6, 2015 and those results did

not change. The deadline for submission of a petition in an election contest is January 29, 2015.

Therefore, this petition is timely filed.

VII. CONDITIONS PRECEDENT

48. All conditions precedent have been performed or have occurred.

VIII. MOTION TO MODIFY STANDARD DISCOVERY PROCEDURES

49. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign

an order shortening the time allowed for Contestee to comply with the discovery requests set forth

below to no more than fifteen days.

50. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign

an order shortening the time allowed for Contestee and third-party witnesses, voters, the City of

Pressley v. Casar OP Contest p.l4 16 Austin and Travis County, to comply with the discovery requests set forth below in paragraph to

no more than ten days, and that the period of notice required for Deposition on Written Questions

be reduced to ten days.

51. Contestants further requests that the Court sign an order requiring that Contestee's

response to the request for disclosure, and all other responses and answers in this case be hand-

delivered, faxed or emailed.

52. The foregoing modifications to standard discovery procedures are necessary because of

the accelerated procedures that apply to this primary election contest. For example, the trial

would be over before the disclosures and documents were due if the standard discovery deadlines

remain applicable. The foregoing reasons constitute good cause for the requested relief.

REQUESTS FOR PRODUCTION

53. Contestant requests that the Travis County produce promptly for inspection and copying,

all voter sign-in sheets of the City of Austin election, December 16, 2014, including early voting

sign-in sheets.

54. Contestant requests that Travis County produce promptly for inspection and copying, all

voter registration records, including but not limited to voter registration cards, that were validly

accepted in the City of Austin, Texas, District 4, as of the date of the election, December 16,

2014.

55. Contestant requests that Travis County produce promptly for inspection and copying, all

voter registration lists that were validly accepted in the City of Austin, Texas, District 4, as of the

date of the election, December 16,2014.

56. Contestant requests that Travis County produce promptly for inspection and copying, all

related absentee and/or mail-in votes of the election, December 16, 2014.

Pressley v. Casar OP Contest p.l5 17 57. Contestant requests that Travis County produce promptly for inspection and copying, all

related images of ballots cast of the election, December 16, 2014, including early voting.

58. Contestant requests that Travis County produce promptly for inspection and copying, all

serial numbers of all MBBs per precinct used in December 16,2014 election.

59. Contestant requests that Travis County produce promptly for inspection and copying, all

Names of personnel who programmed, serviced, or delivered the electronic voting machines for

all 2013 and 2014 elections.

60. Contestant requests that Travis County produce promptly for inspection and copying, all

names of any personnel, employed by the county or by any private contractor, who were

employed in any capacity conducting or preparing for the conduct of the December 16,2014

61. Contestant requests that Travis County produce promptly for inspection and copying, all

physical addresses where records of all election data is located, paper or electronic. Physical

address here shall be construed to include not only street addresses and room numbers, but

physical locations on hard drives of electronic data.

62. Contestant requests that Travis County produce promptly for inspection and copying, all

media upon which election data is located, including but not limited to floppy disks, hard disk's,

CD-rom's, USB memory sticks, pcmcia flash memory cards and similar devices.

63. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16, 2014 election, all precinct voting machine results tapes, all central

tabulation results, all incident reports and phone logs, all audit logs, including system logs

and event logs from precinct voting machines and election management computers and

any other computer used in the election, all File Allocation Tables for all computers used

Pressley v. Casar OP Contest p.l6 18 in the election including precinct voting machines and election management computers, all

records for voting machines serviced or replaced during the voting period, all cardkey

access logs, or, if cardkeys are not used, written access logs for the rooms housing election

management computers, and for rooms housing the voting machines and ballots.

64. Contestant requests that Travis County produce promptly for inspection and copying, all

e-mail traffic sent to or from any electronic voting system owner, employee or contractor

by any county employee or elected official for the past year, documents showing failures

of voting machines, including but not limited to troubleshooter reports documenting

malfunctions and repairs, chain of custody logs containing voting machine assignments to

each polling place and the list of seal numbers affixed and checked in, access records for

any laptops used during the 2014 City Council elections period, from November 1, 2010 to

December 31,2014.

65. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election, Copies of return mail/vacancy/forwarded addresses lists for

District 4 registered voters from 2012-2014. Include VID, address, name, date information was

received.

66. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16, 2014 election, all written procedures for purging voters from Travis County

Voter lists with respect to but not limited to deceased voters, felons, voters who have change of

address, vacant addresses, etc. Contestant requests that Travis County produce promptly for

inspection and copying, for the December 16,2014 election electronic copies of purged voter lists

from 2010-2014, including Voter Identification ("VID"), address, name, Date of Birth, and date

purged.

67. Contestant requests that Travis County produce promptly for inspection and copying, for

Pressley v. Casar OP Contest p.l7 19 the December 16, 20 14 election the District 4 December Run Off Ballot by Mail ballots for all

precincts and the ability to make scanned/electronic copies of selected ballots. Contestant

specifically requests that she or her representatives be presented with the originals of these

documents, in addition to any photocopies Travis County may wish to provide.

68. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election documents identifying the names, VID and addresses of District 4

voters that cast provisional ballots and those that were accepted and/or rejected for the December

Run Off election. Contestant further requests that Travis County produce promptly for inspection

and copying, for the December 16,2014 election the "images ofballots" of the rejected ballots.

69. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election those documents containing voters names, VID, and addresses in

District 4 that requested Ballot by Mail and those that returned Ballots by Mail for the December

Run Off.

70. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16, 20 14 election any rejected requests for Ballot by Mail.

71. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16, 20 14 election, documents identifYing all election workers for all countywide

polling locations, substations, and Central Counting for Early Voting, Election Day voting,

Mobile voting (including but not limited to Election Judges, alternate judges, technicians, poll

watches, etc.) for the December Run Off.

72. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16, 2014 election Tally sheets, dates, workers and returns reported for the polling

locations and/or precincts that were audited for the number of voters and the number of ballots

Pressley v. Casar OP Contest p.l8 20 cast for the December and November elections.

73. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16, 2014 election any lists or spreadsheets used by poll workers, technicians, and

similar persons for documenting issues at each of the polling locations for the December Run Off

(including but not limited to computer errors, mismatch in voter numbers, fleeing voters, other

irregularities, etc.).

74. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16, 2014 election any manuals used for training Elections Division workers

including but not limited to security, maintenance, operation, segregation, archival, backup, of all

Hart Voting system equipment.

75. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16, 2014 election all spreadsheets, Logs and checklists used to document

performance and adherence of Election Division workers to training manuals and procedures

including, but not limited to, security, maintenance, operation, segregation, archival, backup of all

Hart Voting system equipment for the November and December elections.

76. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16, 2014 election and internal and public reports from Elections Division

Management regarding strengths and weaknesses in the current voting systems employed by

Travis County and how they can be improved with newer models, technology, processes, and the

like.

77. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election and the November 4, 2014 election, including early voting, all

Zero Tapes for voting equipment (including Equipment ID) used that were printed more than 2

Pressley v. Casar OP Contest p.l9 21 hours prior for Early Voting, Mobile Voting, Election Day voting, and processing of Ballot by

Mail ballots.

78. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election and the November 4, 2014 election, including early voting, all

Zero Tapes for voting equipment (including Equipment ID) used that were printed directly prior

to opening the polls for Early Voting, Mobile Voting, Election Day voting, and processing of

Ballot by Mail ballots.

79. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election and the November 4, 2014 election, including early voting, all

Results/Tally Tapes for voting equipment (including Equipment ID) used that were printed after

closing the polls for Early Voting, Mobile Voting, Election Day voting, and processing of Ballot

by Mail ballots.

80. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16, 2014 election, including early voting, all troubleshooting or incident reports for

all Hart Voting System equipment for Early Voting, Mobile Voting, Election Day voting. Please

include in production electronic copies of all certification records for all voting equipment and

software.

81. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election and the November 4, 2014 election, including early voting, lists

of the Mobile Ballot Boxes used, their ID's, and what polling location they were used at

(including but not limited to each countywide polling location for Early Voting, Election Day

voting, mobile polling location, and Ballot by Mail processing).

82. Contestant requests that Travis County produce promptly for inspection and copying, all

Pressley v. Casar OP Contest p.20 22 documents showing communications from the City of Austin, the Secretary of State, and the

Travis County Elections Division, Hart InterCivic, vendors, etc. regarding the District 4

December Run off Elections including but not limited to emails, memos, correspondence, texts,

IM's, video conferencing, Power Points, dated from 1-1-2015 through the current date.

83. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election and the November 4, 2014 election, including early voting, all

correspondence from the Secretary of State regarding administrative waivers for the November

and December elections in Travis County.

84. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election and the November 4, 2014 election, including early voting, any

documents identifying those associated with the District 4 Recount (including but not limited to

committee members, managers, workers, technicians, etc.) and their titles, roles, and date and

hours worked from the dates 1/2- 1/6.

85. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election and the November 4, 2014 election, including early voting, any

documents showing contacts with Hart InterCivic and Travis County relating to the preventive

maintenance, operation, and duties of the Travis County to ensure no voids in warranty occur for

all components of the Hart Voting Systems (including but not limited to hardware and software

for computers, eSlate, MBB, JBC, Tally, Rally, SERVO, etc.).

86. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election and the November 4, 2014 election, including early voting, all

Hart InterCivic operating instruction manuals for the major Hart Voting System components:

Tally, SERVO, eSlate, JBC, Rally, MBB, etc.

Pressley v. Casar OP Contest p.21 23 87. Contestant requests that Travis County produce promptly for inspection and copying, for

the December 16,2014 election and the November 4, 2014 election, including early voting, any

documents showing respective and relevant identification numbers and/or serial numbers for all

the Hart equipment (Tally, SERVO, eSlate, JBC, Rally, MBB, etc.) used in the November and

December election for Early Voting, Election Day voting, Mobile Voting, and processing Ballot

IX. ELECTION CONTEST-SPECIAL LAWS AND RULES APPLY

88. In order that Contestee not be left unaware of the special shorted rules that apply in this

case, Contestants set forth the following excerpt from the Texas Election Code:

Sec. 231.004. DISQUALIFICATION OF DISTRICT JUDGE. (a) The judge of a judicial district that includes any territory covered by a contested election that is less than statewide is disqualified to preside in the contest. (b) If a contest is filed in which a judge is disqualified under Subsection (a), the district clerk shall promptly call the filing to the attention of the judge. The judge shall promptly request the presiding judge of the administrative judicial region to assign a special judge to preside in the contest. (c) A judge who resides in the territory covered by a contested election is not eligible for assignment as a special judge for the contest.

Sec. 233.007. FILING PERIOD FOR ANSWER. (a) A contestee must file an answer to the contestant's petition not later than: (1) 10 a.m. of the 1Oth day after the date of service of citation on the contestee or 10 a.m. of the fifth day after the date the official result of the contested election is determined, whichever is later, if the contested election is less than statewide; or (2) 10 a.m. of the 20th day after the date of service of citation, if the contested election is statewide. (b) The citation must command the contestee to answer by the specified deadline. Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

X. REQUEST FOR RELIEF

89. The contestants seeks relief under the Texas Elections Code, Chapter 232, and ask that

the Court declare that the election results cannot be determined under Election Code Section

Pressley v. Casar OP Contest p.22 24 232.041 ask that the Court order a new election.

90. The contestant requests a new election using paper ballots based on the limitations that

Travis County employes a hardware and software configuration of the Hart Voting Systems, that

cannot produce an image of a ballot cast, in violation of state law.

91. Therefore, based on the foregoing, the contestant requests that the contestee be cited to

appear and answer, and that the Court grant the relief sought by the plaintiff and award it attorney

fees, prejudgment and postjudgment interest, costs of suit, and all other relief, in law and in

equity, to which it may be entitled.

David Rogers LAW OFFICE OF DAVID ROGERS

By: /s/ David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836- Telephone 512-201-4082- Facsimile Email: Firm@DARogersLaw.com Attorney for Contestant Dr. Laura Pressley

Pressley v. Casar OP Contest p.23 25 4/16/2015 9:15:02 AM Velva L. Price District Clerk Travis County D-1-GN-1S-00037 4 No. D-1-GN-15-000374

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § § GREGORIO "GREG" CASAR § Contestee § OF TRAVIS COUNTY, TEXAS § § 20lst JUDICIAL DISTRICT

CONTESTANT'S NOTICE OF DESIGNATION OF LEAD COUNSEL

TO THE HONARABLE JUDGE OF SAID COURT:

Now comes Laura Pressley, herein and hereby notifies the Court and the Parties that she has desigmited Mark Cohen as her Lead counsel to represent her in this case. David Rogers will remain in the case as her Co- CounseL

Mar SBN:04508400 805 w. 10th, #100 Austin, Texas 78701 (512) 474-4424 Phone (512) 472-5444 Facsimile mark@cohenegalservices. com

ATTORNEY FOR CONTESTANT

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing has been served by efile and/or facsimile to the following persons on this 16th day of April, 2015.

Charles 'Chuck' Herring Jr. 09534100 chet:ring@hening-irwin. com Jess Irwin- 10425700 j ess@herring-irwin. com Lauren Ross- 24092001 laurenbross@herring-irwin.com Hening & Irwin, L.L.P. 1411 West A venue, Ste 100 Austin, TX 78701

477 Phone: 512-320-0665 Fax: (512) 519-7580

Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002- Facsimile ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR

MarkC hen /

478 1

1 CAUSE NO. D-1-GN-15-000374

2 LAORJ\ PRESSLEY, IN TEE DISTRICT COURT

Cc-ntestant,

3 TRl\,VIS COcTNTY, TEXAS

Contestee. 201ST JUDICIAL DISTRICT

6 7 8 *****************************************

9 ORAL AND VIDEOTAPED i:JEPOSITION OF

10 LAURA" PRESSLEY

11 April 16, 2015

12 ************** **************************

13 14 15 ORAL AND VIDEOT}\l?ED DEPOSITION OF LA:Jill\ PRESSLEY,

16 produced as a witness at the instance of the Contestee,

17 and duly sworn, was taken in the above-styled and

18 numbered cause on the l6ti' of Apri , 2015, from

19 9:39 a.m. to 3:52p.m., before Heidi t"!orrison, CSR, RPR,

20 Certified Shorthand Reporter in and for the State of

21 Texas, reported by computerized stenot.ype machine at the

22 offices of Travis County Clerk's Office, Conference Room

23 222, 1000 Guadalupe, Austin, Texas 78701, pursuant to

24 the Texas Rules of Civil Proced-Lln.o and the sions

25 stated on the record or attached hereto.

578 VIDEOTAPED DEPOSITION OF LAURA PRESSLEY CONDUCTED ON THURSDAY, APRIL 16, 2015

105 1 Q roughly. 11 : 4 7 :50

2 A We had many volunteers. We had many paid

3 staff. I don't have the exact number. Maybe ten.

4 Q But it's so any one of the ten could have

5 gone down to speak at council and say we don't 11:48:06 6 think you should close Highland Mall" or "We object to

7 it" or "We think you should do something different."

8 Any one of your ten on your campaign staff could have

9 done that?

10 A We could have. 11:48:18

11 Q And no one did it, as far as you know?

12 A No.

13 Q Now, you say in your pleading that somebody

14 complained about the closing of the location?

15 A Yes. 11:48:31

16 Q Who complained?

17 A Well, we had people complain about --

18 Q I want names.

19 A Oh, you want names. So I don't have the names

20 ln front of me. I have not don't have my records in 11:48:46 21 front of me for the names.

22 Q Does your lawyer have a list of the names?

23 A No. He does not have a list of names right

24 now.

25 Q I said he and pointed at him. You have two 11:48:57

PLANET DEPOS 888.433.3767 I WWW.PLANETDEPOS.COM

603 VIDEOTAPED DEPOSITION OF LAURA PRESSLEY CONDUCTED ON THURSDAY, APRIL 16, 2015

114 1 MR. COHEN: If you asked 11:56:11 2 MR. HERRING: I've asked the question--

3 MR. COHEN: I know.

4 MR. HERRING: You haven't read them.

5 MR. COHEN: And I haven't read them yet. 11:56:14 6 I don't mean to be tricky.

7 MR. HERRING: Let's ask the-- the other

8 guy.

9 MR. ROGERS: If I can get it, I'll get it

10 to you. 11 :56 : 21 11 Q (By Mr. Herring) Okay. Anybody else?

12 A At this time, no.

13 Q Now, of those people you referred to, can you

14 tell me how many of them, if you understand it, were

15 prevented from voting? 11: 56: 3 6

16 A I do not know right now.

17 Q You --- can you tell me the name of anyone who

18 was prevented from voting by the change in a voter

19 location?

20 A We gave a list of potential voters that did 11:56:47 21 not vote in the runoff. And so those are -- that's a

22 a partial list. We've provided that.

23 Q I think my question's a lot narrower than what

24 you just answered. My question is: Do you have a list

25 of people -- not the broad -- the broad list of people 11:57:10

604 VIDEOTAPED DEPOSITION OF LAURA PRESSLEY CONDUCTED ON THURSDAY, APRIL 16, 2015

115 1 who might not have voted, not the list of people who 11:57:14 2 told somebody, "Well, I'm upset or confused by this

3 change of one of these voting locations," but people who

4 actually were prevented from voting because of the

5 change in one of those three? 11:57:28 6 A So right now, at this time, I don't have a

7 list.

8 MR. COHEN: How much more do you think

9 you have?

10 MR. HERRING: A good bit. 11:57:39 11 MR. COHEN: Good bit? Okay. So

12 !'1R. HERRING: What time?

13 MR. COHEN: It's 12:00. I can't go too

14 much longer.

15 MR. HERRING: Let's take a break. You 11:57:46 16 want a lunch break?

17 MR. COHEN: 1'\lould we?

18 MR. HERRING: Up to you.

19 MR. COHEN: Yeah.

20 MR. HERRING: I'll go straight through, 11:57:48 21 but we'll take a break if you want to.

22 MR. COHEN: Well, that's why I asked you.

23 If it's going to be an hour, I can stand it. If it's

24 going to be

25 MR. HERRING: It's going to be more than 11:57:54

605 VIDEOTAPED DEPOSITION OF LAURA PRESSLEY CONDUCTED ON THURSDAY, APRIL 16, 2015

134 1 election. You know you knew about it before the runoff? 13:42:17

2 A Yes, yes, yes.

3 Q And how did you become aware of it?

4 A I don't recall.

5 Q Did you discuss it with Mike Winn? 13:42:30

6 A I don't recall. I remember getting i t through

7 e-mail from one of our supporters. And I don't remember

8 the date I got it through e-mail.

9 Q Do you know whether zero tapes were ever

10 printed? 13:42:49

11 A When?

12 Q For-- let's say for the runoff election.

13 A I don't know if they were ever printed. We've

14 not we've asked for that in discovery, so we're

15 looking forward to that data. 13:43:01 16 Q Get that back so I don't lose it.

17 So you don't know if they were printed,

18 or if they were printed, where they were printed or

19 when?

20 A I don't know. That's right. 13:43:12

21 Q And then, similarly, you have an allegation

22 that no results

23 A Yes.

24 Q -- tapes were printed at the countywide

25 locations when closing the polls? 13:43:24

606 4/20/2015 11 :25:47 PM Velva L. Price District Clerk Travis County D-1-GN-15-000374 No. D-I-GN-15-000374

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § § GREGORIO "GREG" CASAR § Contestee § OF TRAVIS COUNTY, TEXAS § § 201 st JUDICIAL DISTRICT

CONTESTANTS' FIFTH AMENDED ORIGINAL CONTEST OF ELECTION, MOTION TO MODIFY DISCOVERY DEADLINES, AND REQUESTS FOR DISCLOSURE FOR THE OFFICE OF THE AUSTIN CITY COUNCIL, DISTRICT 4

TO THE HONORABLE JUDGE OF SAID COURT

NOW COMES, Laura Pressley, Contestant, and files this Fifth Amended Original

Petition for Election Contest for the Office the Austin City Council, District 4 (Petition) against

Gregorio "Greg" Casar, Contestee.! This Amended Pleading is in response to the court's order

sustaining special exceptions to which the Contestant disagrees. It is filed assuming the Court's

Order providing the April 20, 2015 Deadline to replead assumed Contestant would have reviewed

documents ordered to be produced by the Travis County Clerk's Office. This has not happened

yet so some of the information the Court assumed in its order Contestant would have available in

time to completely meet the order on special exception is still not available at this time.

Contestant anticipates filing another amended pleading with more specific allegations as soon as

it has had sufficient time to do so. The election was held on December 16, 2014 and canvassed

1 This Fifth Amended Petition is filed in Response to Contestee Gregorio "Greg" Casar's Answer and Special Exceptions to Contestant's Original Contest of Election, and the Court's order of April 13,2015 regarding those Special Exceptions.

Pressley v. Casar Fifth Amended OP Contest p.l 339 on December 30, 2014. In support of this election contest, Dr. Pressley will respectfully

show as follows:

1. The contestant intends that discovery be conducted under level three, a custom discovery

plan for election contest devised with the approval of the court.

II. REQUEST FOR DISCLOSURE

2. Pursuant to Texas Rule of Civil Procedure 194, and the motion set forth below, the plaintiff

requests that the defendants, within thirty days of the service of the Original Petition, disclose the

III. SUMMARY

3. This contest is based on the facts that illegal votes were counted, election officers prevented

eligible voters from voting, election officers failed to count legal votes, and election officers made

mistakes that resulted in an election outcome which is not the true outcome. Thus, deprivation of

voting rights of voters in several high population polling locations which were improperly closed,

irregularity in votes counted or not counted, and a failure to comply with the Texas Election Code

requirement for storing, retrieval and printing of "images of ballots cast" in electronic voting

machines occurred and negatively affected the outcome for Pressley. Particularly, the improper

closure, consolidation and moving of the voting locations alone appears to have reduced the vote

considerably more than the margin reported in the canvass of the election. 2

4. Additionally, Travis County uses electronic voting machines from Hart Intercivic to conduct

2This is sufficient to "materially affect[] the election results." Gonzalez v. Villarreal, 251 S.W.3d 763,773,777-78 (Tex. App.-Corpus Christi 2008, pet. dism'd w.o.j.) (quoting Tiller v. Martinez, 974 S.W.2d 769,772 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.) (emphasis added); accord Reese v. Duncan, 80 S.W.3d 650,655-56 (Tex. App.-Dallas 2002, pet. denied).

Pressley v. Casar Fifth Amended OP Contest p.2 340 elections within the county.3 Pressley requests that the court compel Travis County election officers

to print the "images of ballots cast" as required under the Texas Election Code. 4 (TEX. ELEC. CODE

§213.016). Without these statutorily-required "images of ballots cast" it is impossible for the Court

to determine the actual election outcome, as the only actual ballots - the mail-in ballots - are exactly

and perfectly tied between the two candidates. The Travis County Clerk has asserted that the system

Travis County uses cannot print "images of ballots cast." Images of ballots cast" is not the same as

"cast vote records." The Court, consequently, must reject any "cast vote records" produced and

tallied by such machines. The result of these multiple irregularities is that the result cannot be

known, and the Court must order a new election. Dr. Pressley requests that such an election be

timely set, and conducted in compliance with the Texas Election Code and the Secretary of State's

regulations governing elections.

5. "The purpose of the election code is to ensure that the true will of the voters is 'fairly expressed'

and that the evidence of that expression is 'properly preserved.' Prado [v. Johnson, 625 S.W.2d 368

3 Voters in different parts of the state utilize a number of different voting systems, all of which must first be certified by the Secretary of State. Tex. Elec. Code § 122.001, .031. ... Once a system is certified, local political subdivisions may adopt it for use in elections. Id. § 123.001. ... The eSlate, a paperless DRE manufactured by Hart Intercivic, is one of a handful ofDREs the Secretary has certified. See Voting Systems, Texas Secretary of State, http://www.sos.state.tx.us/elections/laws/votingsystems.shtml. Voters arriving at the polls in counties using the eSlate are given a unique access code. The voter enters the code into the eSlate, which then displays the ballot. Voters tum a dial to highlight their ballot choice and then press "enter" to make a selection. After a voter completes his selections, the eSlate displays a ballot summary page. If the voter's choices are correctly displayed, the voter presses the "cast ballot" button, and the vote is purportedly recorded. See Voter Instructions, Travis County, http://www.co.travis.tx.us/county_clerk! election!eSlate/pdfs/English_Flyer_ 050923. pdf. Travis County purchased the eSlate system in 2001 and has used it since 2003. Andrade v. NAACP of Austin, 345 S.W.3d 1,4,5-6 (Tex. 2011) (footnotes omitted.) 4 See attached Appendix 10, September 30, 2014 letter from Texas Secretary of State. In this letter, Keith Ingram, Director of Elections for the Texas Secretary of State's office, specifically states "in the [Hart Voting System], ballot images remain on the voting machines themselves for recounts, contests, and other post-election reviews until archived by the county for the following election." p.2, second to last paragraph, last sentence.

Pressley v. Casar Fifth Amended OP Contest p.3 341 (Tex. Civ. App.--San Antonio 1981, writ dism'd w.o.j.»], 625 S.W.2d at 369-70." Gonzalez v.

Villarreal, 251 S.W.3d 763, 778 (Tex. App.-Corpus Christi 20l3). The failures and mistakes illustrated

in this Contest show that the will of voters was thwarted, the evidence of that expression was not

properly preserved and thus, the true outcome cannot be determined. 5

6. While some actual ballots were preserved - the mail-in ballots, in which the candidates are

perfectly tied - the vast majority of ballots and the evidence of the voters' intent were not preserved.

According to the Travis County Clerk, there are no "images of ballots cast" that the court can

review. Therefore, if "images of ballots cast" cannot be produced, we request the court to order a

new election.

IV. PARTIES

7. Contestant Laura Pressley is a resident of Austin City Council District 4, Travis County,

Texas. She was a candidate in the Austin City Council District 4 Run Off Election on December 16,

8. Contestee Gregorio "Greg" Casar is a resident of Austin City Council District 4, Travis

County, Texas. He was a candidate in the Austin City Council District 4 Run Off Election on

December 16,2014. Casar has been served and has answered in this cause.

9. The election results were canvassed on December 30, 2014 and Mr. Casar was declared the

10. A "manual recount" of all early voting, election day, provisional, and mailed-in ballots was

attempted on January 6, 2015. 6 The mail-in ballots were exactly tied between the candidates, at 240

5 The requirement to preserve "images of ballots cast" in the statute is fundamental to preserving the evidence of the will of the voters. By failing to preserve that evidence, the County has destroyed evidence of the expression of the will of the voters and forced the court to call a new election. 6 Though the County Clerk termed the action a "manual recount," because the event as it occurred

Pressley v. Casar Fifth Amended OP Contest p.4 342 each, for a total of 480 votes. 7 The attempted recount was a nullity and a real recount was made

impossible in that the attempted recount violated state law and was incorrectly performed using of the

"cast vote records" in lieu of "images of ballots cast" combined with the actual mail in ballots. Based

on the counting of "cast vote records" and mail in ballots, as could be predicted, the invalid recount did

not change the reported results of the election and the original declaration of Mr. Casar as the victor for

the run off election did not change. Casar was sworn into office on January 6, 2014. He has been

notified of the filing of this action by a delivery of a copy of this Petition in accordance with TEX.

ELEC. CODE § 21.003(b).

V. JURISDICTION AND VENUE

11. Jurisdiction and venue in this case are proper and mandatory in Travis County because

the office being sought is for a district entirely within the boundaries of Travis County under the

VI. FACTS

Travis County Election Officials Prevented Eligible Voters from Voting

12. City of Austin District 4, comprised of 18 voting precincts, is located entirely in Travis

County. Early Voting and Election Day was December 1-12, and 16, 2014, respectively. Voters

seeking to vote at high-volume locations were improperly denied the right to cast their vote.

Disenfranchisement of District 4 voters occurred as a result of the closing of the highest volume

District 4 voting locations in the Run Off during Early Voting and Election Day, December 16,

did not satisfy statutory criteria, Pressley does not concede that what occurred was actually a statutory manual recount as defined by the Texas Election Code. 7 These were the only actual ballots counted during the "manual recount." The mail-in ballots were more than 10% of the total ballots cast in the election. The allegation of the county is that, despite the perfect tie in mail-in ballots, Casar beat Pressley by a 2-to-1 margin in the remaining ballots. This is a variation in election results that is highly improbable and unrecorded to Contestant's knowledge.

Pressley v. Casar Fifth Amended OP Contest p.5 343 2014.

13. The Highland Mall voting location at 6601 Airport Blvd was open during the General

Election for Early Voting and Election Day on October 20-31, and November 4, 2014,

respectively and saw some of the highest volume of voters in District 4. This location was the

designated voting location for Precinct 142 and was an important and convenient voting location

for Precinct 156 and others nearby. It was closed for the December Run Off election for Early

Voting and Election Day. It was moved to the far less convenient Travis County Tax Office at

5501 Airport Blvd (See Appendix 1). The Pressley campaign received multiple reports of voters

being upset and confused because the voting location had been moved.

14. Specifically, reports were received by Contestant on Election Day, December 16th , from

voters while Contestant was phone banking. District 4 voter, Thomas Crawford showed up at

Cooke Elementary to vote, and reported no signs were posted to indicate where the polling

location had been moved. Similar reports were received by Brad Parsons, a campaign volunteer,

who was phone banking on Election Day. Campaign supporter, Matthew Palmer reported that

Highland Mall was closed and it was a problem for voters. Based on information and belief,

Contestant asserts that said confusion was a result of failure to post, or premature removal of, a

notice at Cooke Elementary, Precinct 222, of the relocation of the polling place.

15. Upon reviewing voter rolls for Pct 156 and 142, published by Travis County, Appendix 2

shows names, addresses and precincts of 365 voters of Pcts 156 and 142 that we allege were

disenfranchised. These 365 voters were identified based on their voting histories which include

but are not limited to voting in General Elections, City of Austin Council Elections, and Primary

Elections. The extensive voting histories of these 365 voters show they are the most consistent

voters in Precincts 142 and 156 and surprisingly did not vote in the City Council Run off election

Pressley v. Casar Fifth Amended OP Contest p.6 344 in 2014. In addition, the Pressley campaign verified additional voters, multiple times, as very

strong Pressley supporters (by block walking/phone banking/yard signs posted), who were waiting

to vote on Election Day. These voters total 73. Therefore, Contestant alleges a total of 438 voters

in Precincts 142 and 156 were disenfranchised.

16. To enhance the accuracy of this list, additional information (detailed voter information of

precincts, ballot styles, voting histories, and voting locations for those voting in the General and

Run off elections), has been requested through discovery from Travis County. Upon receipt and

review of discovery responses from Travis County, Contestant may identify additional voters and

improve the accuracy of this list. Also, for trial, Contestant is in the process of collecting

affidavits regarding disenfranchisement specifics from these voters.

17. The second highest voting precinct and polling location in District 4 for the November

General Election was Precinct 222 at Cooke Elementary located at 1511 Cripple Creek. That

Precinct is comprised of more than 25% senior voters who are 60 years and older. It was closed

during Election Day for the December Run Off (See Appendix 1). It was combined with the

fourth lowest voter turnout location in District 4, Precinct 268, Grant AME Worship Center at

1701 Kramer Lane.

18. The Pressley campaign received reports from Rob Hale, a resident and voter in Pct 222.

As usual, he and other Pct 222 voters showed up to Cooke Elementary for the December Run Off

on Election Day and were confused as to why Cooke Elementary was closed for voting for Pct

222. He helped senior voters look up an alternative location in which to vote on Kramer Lane.

When he arrived at the Kramer location, he waited for the senior voters and they did not arrive. In

addition, he had a relative that showed up at Cooke Elementary to vote, and the relative reported

no signs were posted to indicate where the polling location had been moved.

Pressley v. Casar Fifth Amended OP Contest p.7 345 19. Upon reviewing Pct 222 voter rolls published by Travis County, Appendix 3 shows names,

addresses and precincts of 248 voters that we allege were disenfranchised. These 248 voters have

voting histories which include but are not limited to voting in General Elections, City of Austin

Council Elections, and Primary Elections. The extensive voting histories of these 248 voters show

they are the most consistent voters in Precinct 222 and they surprisingly did not vote in the City

Council Run off election in 2014. In addition, the Pressley campaign verified additional voters,

multiple times, as very strong Pressley supporters (by block walking/phone banking/yard signs

posted), which were waiting to vote on Election Day. These voters total 71. Therefore, Contestant

alleges a total of319 voters in Precinct 222 alone were disenfranchised.

20. To enhance the accuracy of this list, additional information (such as detailed voter

information such as precincts, ballot styles, voting histories, and voting locations for those voting

in the General and Run off elections), has been requested through Discovery from Travis County.

Upon receipt and review of Discovery responses from Travis County, Contestant may identify

additional voters and improve the accuracy of this list. Also, for trial, Contestant is in the process

of collecting affidavits regarding disenfranchisement specifics from these voters.

21. Another voting location open during the General Election but closed for the District 4 Run

off was Precinct 133, which was open for the General Election at Blanton Elementary located at

5408 Westminster. It was combined with the non-District 4 Precinct 130, at Memorial UMC.

22. The Pressley campaign received reports from Pct 133, Election Judge, Arthur Turner, a

resident and voter in Pct 133. During Election Day, voters from Pct 133, showed up at Blanton

Elementary to vote in the Run Off and were confused and upset as to why Blanton Elementary was

closed for voting for Pct 133. Mr. Turner had multiple calls from upset voters who did not know

where to vote.

Pressley v. Casar Fifth Amended OP Contest p.8 346 23. Upon reviewing Pct 133 voter rolls published by Travis County, Appendix 4 shows names,

addresses and precincts of 116 voters Contestant alleges were disenfranchised. These 116 voters

have voting histories which include but are not limited to voting in General Elections, City of

Austin Council Elections, and Primary Elections. The extensive voting histories of these 116

voters show they are the most consistent voters in Precinct 133 and they surprisingly did not vote

in the City Council Run off election in 2014.

24. To enhance the accuracy of this list, additional information (such as detailed voter

information such as precincts, ballot styles, voting histories, and voting locations for those voting

in the General and Run off elections), has been requested through discovery from Travis County.

Upon receipt and review of discovery responses from Travis County, Contestant may identify

additional voters and improve the accuracy of this list. Also, for trial, Contestant is in the process

of collecting affidavits regarding disenfranchisement specifics from these voters.

25. Three additional polling locations were closed for the Run off election for District 4 (Pcts

209, 258, and 260). Upon reviewing the voter rolls for these precincts published by Travis

County, Appendix 5 shows names, addresses and precincts of 235 voters that we allege were

disenfranchised. These 235 voters have voting histories which include but are not limited to

voting in General Elections, City of Austin Council Elections, and Primary Elections. The

extensive voting histories of these 235 voters show they are the most consistent voters in Precincts

209,258, and 260 and they surprisingly did not vote in the City Council Run off election in 2014.

26. The total number of closed/moved/combined precincts in District 4 for the Run off comes

to a total of 7 Precincts out of 17 voting precincts in District 4. Therefore, 41 % of District 4's

polling locations were closed, combined or moved for the December Austin City Council Run off.

Appendix 6. This caused a much lower than expected turnout for Election Day for District 4.

Pressley v. Casar Fifth Amended OP Contest p.9 347 27. To summarize, typically Election Day and Early Voting tum out is very similar. Early

Voting for the District 4 Run Off race saw approximately 2,646 voters and on Election Day only

1,771 turned out. Due closing/ moving/ combining of 41 % of District 4 Polling locations, voters

were confused and disenfranchised and Election Day voters were about 875 short.

28. The County's actions of closing multiple, key, high volume polling locations had a

disproportionate effect on minorities, working people, and elderly voters of District 4-one of the

Hispanic-opportunity districts in the City of Austin. Four of Pressley's strongest voting

locations/boxes that showed over 50% for Pressley (222, 156, 133, 258), as evidenced by the only

remaining ballots, Mail in Ballot results, were moved or closed for the Run Off election (See

Appendix 6).

29. As a result of these aggressive and improper closures, voters registered at those locations

were improperly denied the right to cast their vote. The closure of these pro-Pressley precincts was

unfair and undermined the true outcome of the election. A conservative count of disenfranchised

voters resulting from the improper closure/moving/combining of precincts 133, 142, 156, 209,

222, 258, and 260 is 1,108. This value is consistent with the ]ow voter turnout on Election

Day as compared to Early Voting. Upon evaluation of discovery responses from Travis County,

a more accurate number may be provided. Also, for trial, Contestant is in the process of obtaining

testimony regarding disenfranchisement specifics from these voters.

Travis County Ejection Officials Allowed Ineligible Voters to Cast Votes (Illegal Votes)

30. A thorough review the 4,414 Early Voting and Election Day voter names and addresses

with returned mail, and the National Change of Address database (NCOA), and voter registration

Pressley v. Casar Fifth Amended OP Contest p.lO 348 records available online, 64 of the voters had moved, no longer resided in District 4, or had some

other residency issues, and may not have been eligible to vote in the District 4 Run Off Election.

Therefore, at least 64 ineligible voters cast votes in this election due to residency issues. A

more detailed review of the voter registrar information provided by Travis County is needed with

regard to Provisional Ballots, statements of residence, etc. Upon evaluation of Discovery

responses from Travis County, a more accurate number may be provided. A list of the 64 voter's

Voter ID's and precincts are found in Appendix 7.

31. \Vith regard to additional categories for illegal votes, it is unlikely that voters that are not

interested in voting in a General Election will be interested in voting in a Run Off election. After

reviewing Travis County voter rolls (https:lltax-office.traviscountytx.gov/voter-data), for the

General Election and the Run Off, 156 voters voted in the Run Off that did not vote in the General

Election. Many are Ballot by Mails and a large number voted at specific locations. These are

potentially illegal votes and we ask the court to allow Contestant time to review and evaluate

various Discovery responses from Travis County voting records including, but not limited to,

Ballot by Mail, voter registration cards, polling location sign in sheets, and residency records, etc.

to validate the votes were cast legally. A List of these voters are found in Appendix 8.

More Ballots Than Voters During Early Voting (IHega} Votes)

32. On Tuesday, December 30, 2014, the Mayor of Austin and the Austin City Council

conducted an initial official canvass and certification for the Election Day results for all races

on the ballot, including City of Austin District 4. The canvassed and certified totals for District

4 were Laura Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast.

33. The canvassed results were inconsistent with the Early Voting voter reports. Travis County

reported that 2,651 total voters voted in Early Voting in District 4. Reviewing the voter ID's, 437

Pressley v. Casar Fifth Amended OP Contest p.ll 349 entries existed for those submitting Ballot by Mail (BBM). There were at least 28 duplicate entries for

BBM. At least 28 mail-in votes appear to have been counted twice or three times. See Appendix 6,

Duplicate Ballot by Mail Entries.

34. Once duplicate BBM's were removed, 2,622 voter names remained that voted in Early Voting

according to the Early Voting lists from Travis County that were distributed prior to Election Day,

December 16, 2014. Based on Travis County's Canvassed and Recount results for those that voted for

Greg Casar, or Laura Pressley or Under Voted, the total number of ballots cast for Early Voting is

2,701. Therefore, there are 80 more ballots than voters for Early Voting. These 80 extra ballots are

distributed among 15 of the 18 precincts of the District 4 Race. 8 (One precinct, with one eligible voter,

showed no votes.) See Appendix 7, Early Voting Discrepancies.

35. An analysis of the voting results show a pattern of mathematical anomalies which is highly

unlikely to occur naturally. (See Appendix 8, pages 1-3.) For the nine (9) precincts in District 4

with more than 200 voters,9 the highest volume of voters, the ratio of votes that the Contestant

received compared to Contestee is the same ratio in the November General Election (with a total

of 8 candidates) as it was in the December Run Off Election (with 2 candidates), 35.1 % vs 35.0%

respectively. In addition, the average of the percentages of the unweighted precincts that the

Contestant received compared to Contestee, in the November General Election and the December

Run Off, are also equal at 35.1 % and 35.1 %, respectively. No other Council race in the history of

electronic voting in the City (2003 - current) has shown such a tight non-variation between a

8 In the original petition, this number was identified as 79. One precinct, 211, had a single vote undervote. See Appendix 7, Early Voting Discrepancies." Additionally, there are an unknown number of ballot by mail overvotes, invalid voter registrations, ineligible voters and election day overvotes. 9 These precincts account for more than 80% of the vote in the District.

Pressley v. Casar Fifth Amended OP Contest p.12 350 general election and a run off. Since 2003, of the total eleven Council races that went into a run

oft: seven races have greater than lOx variation and 3 show greater than 100x variation. See

attached Appendix 8, Comparison of Election Returns.

36. The fact that so many precincts showed exactly the same and unchanged results for the General

Election and the Run Off is indicative of mistakes made by Travis County election officers. These

mistakes are likely related to and are due to, but not limited to, the handling of voter hardware,

software, etc.

37. From Travis County Voter Rolls, though over 4,000 voters were different between the

General and Run Off elections, the unique and unlikely occurrence that the results remain unchanged

and which has not occurred in the last 11 years in Travis County for any other Run Off candidate or

election is highly improbable. The occurrence is surprising, is strictly isolated to District 4, and is

indicative of human error. Because so many high volume District 4 precincts showed exactly the same

percentage results for Pressley and Casar, it is possible that some memory cards or counting software

used in the General Election were mistakenly reused in error for the Run Off.

38. Contestee Casar alleges the factual and statistically improbable election results for the

General Election and the Run Off "are unsurprising." This is indicative of emotional wishful thinking

rather than a clear-eyed analytical assessment of evidence and data. Additionally, Casar offers vague

and irrelevant references and personal attacks from a politically biased news source, the far-left Austin

Chronicle. The Chronicle endorsed and directly campaigned for Contestee Casar. Additionally, the

Chronicle has little to no scientific expertise on statf that is qualified to offer expert testimony on

complex topics of mathematics, chemistry, physics and engineering, which they attempt to report and

critique.

39. Conversely, Contestee Dr. Laura Pressley holds a Ph.D. in Physical Chemistry from the

Pressley v. Casar Fifth Amended OP Contest p.13 351 University of Texas at Austin and holds a minor in mathematics and has worked in the semiconductor

and technology industry as a process engineer and senior manager in Austin for over 26 years. She has

led defect and yield enhancement engineering teams in Austin, Asia, and Europe and is an expert in

mathematical and statistical data analysis. She has successfully led projects that have reduced corporate

waste on the order of multimillion dollars, quarter after quarter. See Politifact article that that discusses

Dr. Pressley's chemistry and engineering related statements made during the campaign:

http://tinyurl.comllmey73z. Her community involvement has included being the Chair Elect of the

SafePlace, on the Executive Committee of the Austin Neighborhoods Council, President of her

neighborhood association and a team leader of the Restore Rundberg Revitalization Team. Her main

campaign messages were related to reducing waste and debt at City Hall and implementing a City of

Austin Homestead Exemption. Attached is a 2014 campaign mailer that compares Dr. Pressley's

experience and City Council policy goals with Contestant Casar (Appendix 9.)

Procedures Were Violated and Illegal Votes Appear to Have Been Counted

40. Several election safeguards and procedures defined by the Legislature and the Secretary of

State that are intended to prevent human errors were mistakenly not followed by Travis County. The

mistakes and failure to adhere to the Secretary of State's procedures led to and caused illegal votes to be

counted.

41. With regard to the counting of illegal votes, during Early and Election Day Voting, many

election irregularities occurred and mistakes were made by Travis County election officers.

According to Travis County Election Division director Michael \Vinn, no Zero Tapes 10 were printed

for machines to verify that directly prior to the first votes being cast, no votes were pre-registered on

10 A "zero tape" is run on the Judge's Booth Controller ("JBC") to ensure no votes reside in the

system. When voters arrive they are given a JBC-generated PIN number that they enter on the eSlate. They then vote and the votes are stored on the eSlate, Mobile Ballot Boxes (MBB), and JBC.

Pressley v. Casar Fifth Amended OP Contest p.14 352 the machines.i1 This failure is in violation of Texas Secretary of State requirements. The Travis

County officers violations affected the outcome of the election because votes may have remained

on the voting equipment from prior activities. See Texas Secretary of State Advisory 2012-03,

6(g)(vi), 6(k)(iii) http://www.sos.state.tx.us/elections/laws/advisory20 12-03.shtml (last visited 1-29-

2014).

42. Given so many high volume District 4 precincts showed exactly the same percentage results

for Pressley and Casar, it is possible that some memory cards or counting software used in the General

Election were mistakenly reused in error for the Run Off. (See Appendix 8.)

43. In addition, with regard to illegal votes being counted, on Election Day, no results tapes

were printed at the countywide locations when closing the polls. The SOS procedures require the

printing of closing results tapes, also. This failure is in violation of Texas Secretary of State

requirements. The Travis County officers violations affected the outcome of the election because

votes may have remained on the voting equipment from prior activities. See Texas Secretary of

State Advisory 20] 2-03, 6(g)(vi), 6(k)( iii) http://www.sos.state.tx.us/elections/laws/advisory20 12-

03.shtml (last visited 1-29-2014). On Election Day, Pressley campaign official poll watchers were

denied access to results tapes for signing purposes at two polling locations, Gus Garcia and

Randall's at Research Blvd. Official poll watchers that were denied access are the following:

a) Rae Nadler-Olenick was denied access to Results/Tally Tapes on December 16, 2014 at polling location Randalls at Braker and Research. Results Tapes were not printed as required by Secretary of State procedures This affected the

11 Travis County received a waiver of the state requirement for such tapes for the general election only in a letter dated September 30,2014, based on the burden of the extremely long statewide ballot. See attached Appendix 10, September 30, 2014 letter from Texas Secretary of State. The run-off election ballot includes only City Council and Mayoral candidates. The run-off was restricted to two candidates in the races requiring a run-off, unlike the first round, in which as many as twelve candidates participated in some races.

Pressley v. Casar Fifth Amended OP Contest p.15 353 outcome of the Run off election in that errors in counting, ballots cast, and voters signing in, and maintaining security protocols may have occurred. b) Paul Williams was denied access to Results/Tally Tapes on December 16,2014 when the polls closed at Gus Garcia polling location. Results Tapes were not printed as required by Secretary of State procedures 2: This affected the outcome of the Run off election in that errors in counting, ballots cast, and voters signing in, and maintaining security protocols may have occurred. c) Sergio and Claire Martinez were denied access to Dobie Middle School, SubStation on December 16, 2014 and were not able to monitor for election materials coming from Gus Garcia. This affected the outcome of the Run off election in that errors in counting, maintaining security protocols may have occurred.

44. This violates Secretary of State regulations requiring that poll watchers be allowed to sign

such tapes. "The presiding election judge, an election clerk, and not more than two watchers, if

one or more watchers are present, shall sign the results tape(s)." The Travis County officers

violations affected the outcome of the election because votes may have remained on the voting

equipment from prior activities or excess votes may have been added before or after the close of

the polls and the lack of "images of ballots cast" makes the results impossible to verifY. Texas

Secretary of State Advisory 2012-03, 6(k)(i) http://www.sos.state.tx.us/elections/laws/advisory2012-

03.shtml (last visited 1-29-2014).

45. On Election Day, Pressley campmgn official poll watchers not allowed access at the

polling substation at Dobie Middle School, where the most important ballots (for the Graham, Gus

Garcia, and Virginia Brown precincts) were placed in transit to central counting. Those boxes

were the largest and strongest Pressley boxes, as evidenced by the ballot by mail recount results.

(See Appendix 3.) This failure is in violation of Texas Secretary of State requirements. The Travis

County officers' violations affected the outcome of the election because votes may have remained

on the voting equipment from prior activities. See Texas Secretary of State Advisory 2012-03,

6(g)(vi), 6(k)(iii) http://www.sos.state.tx.us/elections/laws/advisory2012-03.shtml (last visited 1-29-

Pressley v. Casar Fifth Amended OP Contest p.16 354 46. On Election Day, poll watchers were improperly denied access to Central Counting

activities with Mobile Ballot Boxes ("MBB"), Tally activities, and the like. 12 This failure is in

violation of Texas Secretary of State requirements. The Travis County officers violations affected

the outcome of the election because votes may have remained on the voting equipment from prior

activities or been added improperly later. See Texas Secretary of State Advisory 2012-03, 6(g)(vi),

6(k)(iii) http://w\\<.W.sos.state.tx.us/elections/laws/advisory2012-03.shtm1 (last visited 1-29-2014).

12 Hart's eSlate System Hart's electronic (DRE) voting system is known as eSlate. The eSlate system is comprised of several distinct components. The Ballot Origination Software System ("BOSS") is used by election officials to define and create individualized electronic ballots. Data is entered once into BOSS and then flows through all components of the eSlate system. The Mobile Ballot Box ("MBB") is a reusable, portable flash memory card. It is used to store and transfer election information. When inserted into the Judge's Booth Controller, the MBB supplies election information and ballot styles, it stores an electronic representation of how votes were cast. Once voting has concluded the MBB is removed and its contents are tallied by the Tally software. The Judge's Booth Controller ("JBC") is the "brain" that manages the system, enabling poll workers to know which voting booths are in use at any time. The JBC issues access codes for the voters' use. It can control up to 12 daisy-chained eSlate units. eSlate refers to the system generally and to the device that voters use to cast ballots, unless using paper ballots, in which case Ballot Now is used. The eSlate may be equipped with a disabled access unit ("DAU") for use by disabled voters. The eSlate units are physically connected to the JBC, which stores cast-vote records. Tally is a software application that reads, stores, and tabulates the cast-vote records from the MBB (the portable flash card that transferred the cast-vote records from the JBC). Tally tabulates all early voting, absentee, and election day results, and produces various reports. Rally is a software application that is capable of reading, storing, and transferring cast-vote data from polling places or collection centers with respect to early returns. The System for Election Records and Verification Operations ("SERVO") software is an election records archiving and asset management system. SERVO is designed to recover data from equipment in the case of a lost or damaged MBB. SERVO also is designed for various recount purposes. Ballot Now is a digital-scan paper ballot system that manages the printing, scanning, and resolution of mailed-in paper ballots. It also records the electronic cast vote records to an MBB to be read and tabulated with Tally.

Pressley v. Casar Fifth Amended OP Contest p.l7 355 The Recount

megal Votes Counted

47. Because of the previously noted, highly improbable statistical anomalies l3 , the duplicate

Ballot by Mail entries, and the fact that there are more ballots than number of voters for Early

Voting (overvotes), Contestant requested a manual recount of the District 4 Election with the goal

of reconciling the discrepancies.

48. Contestant claims the recount evidence and findings are critically material to this case

and the allegations are legally relevant to this election contest.

49. The recount failed to only count legal votes because "images of ballots cast" were not

provided and counted. Printing the "cast vote record" or "CVR" data files was in essence

reprinting the previous electronically counted results obtained on Election night. A CVR prints

data from a data file to a template; it does not count the "images of ballots cast" - it merely

reprints the tally on separate sheets of paper. It was not recounting the source data of the "images

of ballots cast," and as such it is not a meaningful check on the original count. 14 Using the CVR

13 See Appendix 8. 14 The Secretary of State is somewhat unclear on this issue. While "images of ballots cast" could be considered as a subset of the category "cast vote records," the CVRs in this case are not, in fact, images. In logical terms, the expression would be that just because all A are B does not mean all B are A. (All dogs are animals, but not all animals are dogs.) In its 2014 Electronic Voting System Procedures bulletin, posted online at the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8 - Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEC § 214.071): 1. The candidate requesting a recount may request that the recount be done electronically or manually. 2. For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 3. For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue.

Pressley v. Casar Fifth Amended OP Contest p.18 356 instead of ballot image also appears to violate Texas Election Code 214.049 (e): "If electronic

voting system ballots are to be recounted manually, the original ballot, rather than the duplicate of

the original ballot, shall be counted." Ballots are defined in Texas Election Code Chapter 52,

Subchapter c. IS

50. On Sunday January 4,2015, prior to the Recount, Pursuant to TEX. ELEC. CODE § 213.016,

"PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC

VOTING MACHINES," Dr. Pressley communicated over the phone with the the Travis County

Clerk. Pressley informed the Clerk that she desired to be present during the printing of images of

ballots cast. "Each candidate is entitled to be present and to have representatives present in the

a. The Recount Coordinator shall notifY the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. b. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. c. If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. d. A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records. 15 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name."

(e) A square shall be printed to the left of each line provided for write-in voting under Section 52J)66( c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.)

Pressley v. Casar Fifth Amended OP Contest p.19 357 same number as prescribed by Section 213.013(b) for a recount during the printing of the images."

The next day, January 5,2015, Pressley sent an email to the Travis County Clerk and copied to the

Texas Secretary of State's Office, to the same effect.

51. In addition, on January 5, 2015, Dr. Pressley communicated over the phone with the

Director of Travis County Elections Division. Pressley informed the Director that she desired to

be present during the printing of images of ballots cast. An email was sent to The Travis County

Clerk and copied to the Texas Secretary of State's Office, to the same effect.

52. On 6,2015, a "manual recount," which did not use "images of ballots cast" for the "direct

recording electronic voting machines," was conducted and additional irregularities ensued with

regard to and during the recount.

No" Images of Ballots Cast" for Recount-Illegal Votes Counted

53. On Tuesday, January 6, 2015, at 11:00 a.m. (See Appendix 12) when the recount was to

begin, the Travis County Clerk and the Recount Committee relayed to Contestant and her official

recount watcher, Karen Renick, that images of ballots cast were not available, would not be

printed, and would not be used for the recount. 16 Dr. Pressley expressly stated, in her "Petition

Requesting a Recount," and "Amended Petition Requesting a Recount" that "[w]e are requesting a

manual recount of the results using the actual, stored, ballot images." (See Appendix 11.)

Pressley also expressly requested "a manual (by-hand) count." "[T]he election code expressly

provides for the 'printing of images of ballots cast using direct recording electronic voting

machines for the purpose of a recount.' See id. § 213.016." Andrade v. NAACP of Austin, 287

S.W.3d 240, 258 (Tex. App. Austin 2009), rev'd on other grounds by Andrade v. NAACP of

Austin, 345 S.W.3d 1 (Tex. 2011). Failure to print images of ballots violates this provision of the

16 See attached Appendix 13, Affidavit of Karen Renick, with Exhibits 1 & 2.

Pressley v. Casar Fifth Amended OP Contest p.20 358 election code.

54. Prior to the start of the Recount, Travis County selected the data files to print and pre-

printed an aggregated data file of Cast Vote Records ("CVRs"). The pre-printed CVRs contained

a fractional subset of the data that a District 4 ballot contains. Upon starting the recount on

January 6, 2014 around ll:OOam, Contestant relayed to the Travis County Clerk and the Recount

Committee, that not providing printed images of ballots cast was a violation of TEX. ELEC. CODE

§ 213.016.

55. Cast Vote Records are not "images of ballots cast." Ballots are defined in Texas Election

Code Chapter 52, Subchapter C. 17

56. At the same meeting, Dr. Pressley stated that the pre-printing of recount records and

starting the recount process was also a violation of 213.016 and 213.009(c), respectively. A

member of the recount committee responded to one of the recount watchers: "They started all this

on Sunday [January 4,2015]."

57. Pressley warned the County Clerk that the irregularities, of not printing the images of

17 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name."

(e) A square shall be printed to the left of each line provided for write-in voting under Section 52J)66( c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.)

Pressley v. Casar Fifth Amended OP Contest p.2l 359 ballots cast, were in violation of the approved amended Petition for Recount and the Texas

Election Code and was grounds for an Incident Report. Printing the CVR data files was in essence

reprinting the previous electronically counted results obtained on Election night. A CVR is a

printing of a data file to a template - it does not "count" the images of ballots - it merely reprints

the tally on separate sheets of paper. It was not recounting the source data of the "images of

18 ballots cast," and as such it is not a meaningful check on the original count. Using the CVR

instead of ballot image also appears to violate Texas Election Code 214.049 (e): "If electronic

voting system ballots are to be recounted manually, the original ballot, rather than the duplicate

18 Secretary of State is somewhat unclear on this issue. While "images of ballots cast" could be considered as a subset of the category "cast vote records," the CVRs in this case are not, in fact, images. In logical terms, the expression would be that just because all A are B does not mean all B are A. (All dogs are animals, but not all animals are dogs.) In its 2014 Electronic Voting System Procedures bulletin, posted online at htm:/ us! electxgn iQ:..vo!i.!]1t_ the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8 - Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEe § 214.071): 4. The candidate requesting a recount may request that the recount be done electronically or manually. 5. For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 6. For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue. a. The Recount Coordinator shall notifY the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. b. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. c. If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. d. A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records.

Pressley v. Casar Fifth Amended OP Contest p.22 360 of the original ballot, shall be counted." (Emphasis added.)

58. Contestant requested to conditionally proceed with the Recount and re-print the available

59. Pursuant to TEX. ELEC. CODE § 2l3.007, the machines, materials, programs, and records

may be available to the Recount Committee. Pursuant to TEX. ELEC. CODE § 213.0l3(h), each

person entitled to be present at a recount is entitled to observe recount activities. Contestant was

not allowed to view the full recount process and how the recount data was selected from the

electronic voting machines. The CVR data files were identified, isolated and pre-selected prior to

the beginning of the Recount. Contestant requested to view the source and properties of the CVR

files, such as dates of the CVR files and origination, and was denied by the Recount Committee

Member, the Travis County Director of Elections, Michael Winn.

Recount Precinct Returns-mega] Votes Counted

60. Pursuant to TEX. ELEC. CODE § 214.002, counting procedures for a recount shall be

certified in the same manner as the original count. Pursuant to TEX. ELEC. CODE § 65.014(b)(1),

the procedures for preparing the original precinct returns must state the total number of voters who

voted at the polling location as indicated by the poll list. Poll lists were not apparently reviewed

by the Recount Committee during the recount. Dr. Pressley requested the poll lists to be reviewed

and the number voters per precinct be reconciled with those documented on the polling location

combination sign-in forms. Pressley requested those numbers be reconciled with the recount

results, because of Early Voting voter lists discrepancies identified in the Recount Petition. The

request was denied by the Travis County Clerk, the Chair of the Recount Committee, and the

Director of Travis County Elections. The request was also specifically made prior to the recount

in the Amended Petition for Recount (See Attached Appendix 11, Amended Petition for Recount.)

Pressley v. Casar Fifth Amended OP Contest p.23 361 61. Pursuant to TEX. ELEC. CODE § 213.012, the committee chair prepared a report of the vote

count. The Travis County Clerk and the Director of the Elections Division repeatedly informed

Dr. Pressley that "it was not the scope of the Recount" to reconcile the ballots with the number of

voters. The chair wrote, "The numbers of voters matched the number of ballots cast," and signed

the report (See Attached Appendix 14, "Recount Affidavit of Jay Brim"). During the Recount, the

numbers of voters on voter lists were not publicly reconciled with the ballots recounted by the

chair. Dr. Pressley commented to the chair, "Matching the numbers was not supposedly done

today," and no explanation was provided by the chair.

62. On January 5, 2015, the Mayor of Austin and City Clerk approved Contestant's amended

petition requesting a manual recount of actual stored "images ofballois cast.,,19 Contestant's amended

petition included a request to reconcile the ballots cast with the number of voters documented on the sign

in sheets and combination fomls for District 4 for the countywide polling locations and Precincts to

ensure accurate reporting of results. The number of voters recorded and the number of votes recorded

did not match.

Ballot by Mail Ballots Are The Only Legal Ballots That Are Properly Preserved

63. This is why printing the "images of the ballots cast" is critical. The ballot in the General

Election was very different (8 candidates) from the ballot in the Run Off (2 candidates). If some

memory cards or counting software were reused by mistake, then the "images of the ballots cast" will

instantly and unmistakably distinguish the true votes from the illegal votes. This is the intent of the

19 Texas Election Code §213.016. Sec. 213.016. PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES. During any printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount, the full recount committee is not required to be present. The recount committee chair shall determine how many committee members must be present during the printing of the images. Each candidate is entitled to be present and to have representatives present in the same number as prescribed by Section 213.0 13(b) for a recount during the printing of the images.

Pressley v. Casar Fifth Amended OP Contest p.24 362 "images of ballots cast" language of the law. Which ballots were counted is the question that can be

answered only by review of the "images of ballots cast."

64. The mandatory nature of this requirement becomes clear in context.

[W]e believe that violations of certain recording provisions by election clerks can certainly undermine the purpose of the election code and obscure the true will of the qualified voters.

Gonzalez v. Villareal, 251 S.W.3d at 778

65. Failure to retain "image of ballots cast," "ballots" and or "ballot originals" is precisely such

a violation, because there is no clear and unequivocal record of the voter's intent, absent such an

Image.

66. Given the facts and the election mistakes made by Travis County election officers, all of the

4,023 votes that show to be cast in person, are in question and must be verified. Therefore, we ask the

Court to compel Travis County to print and tally the "images of ballots cast" for the District 4 Run Off

so the court may ascertain whether the outcome as shown by the canvass is not the tme outcome

because illegal votes were counted. The list of the 4,023 voters and their Voter ID' s are provided in

Appendix 15.

67. The recount included the Ballot by Mail ballots, and those specific results for Pressley and

Casar were determined. 20 Ballot by Mail Votes were cast in seventeen of the eighteen precincts of

District 4. 21 Pressley received 240 votes and Casar received 240 votes of the 480 total votes cast

for either candidate for the Ballot by Mail ballots. Pressley received exactly 50% of the votes.

68. The Ballot by Mail result is very different from the 33.3 and 33.8% Pressley is reported to

ha ve received for early voting and election day voting from the "cast vote records" - a variation

from mail-in votes and non-mail-in votes of almost 20% (See attached Appendix 3, "Recount

20 See attached Appendix 3, "Recount Results." 21 One precinct, with a population of a single voter, showed no votes.

Pressley v. Casar Fifth Amended OP Contest p.25 363 Results").

69. The only actual "ballots" that were preserved and counted during the recount show

Pressley and Casar split the vote exactly in half. Moreover, 10 of the 18 precincts showed 50% or

more of the vote for Pressley. The Ballot by Mail ballots that were cast for either candidate (total

of 480 votes) were over 10% of the total ballots cast for the Run Off election.

70. The 480 Ballot by Mail ballots are the only" ballots," as that term is defined in the

Election Code, which were available and counted during the recount. Therefore, the election

should have been re-canvassed only with the 480 Ballot by Mail "ballots" and not the results

including the 4,023 illegally recounted "cast vote records."

71. This is an additional reason for the court to compel the Travis County Clerk to comply with

TEX. ELEC. CODE § 213.016 22 and 214.049 (e?3 to print and count the statutorily required "images

of ballots cast" and ascertain whether the previous outcome of the election is not the true outcome.

72. On January 6, 2015, the recount was conducted and completed. After the recount, the

totals were unchanged as compared to the original canvassed results. The totals were Laura

Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast.

73. Reconciliation of voter signatures on rolls at polling locations and total ballots cast has not

been completed. An election contest is the only available remedy to explore the discrepancy

between the number of ballots counted and the number of voter names and signatures in the

74. The sum total of all voting irregularities identified herein exceeds the number of votes by

22 "PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES" 23"If electronic voting system ballots are to be recounted manually, the original ballot, rather than the duplicate of the original ballot, shall be counted."

Pressley v. Casar Fifth Amended OP Contest p.26 364 which the election was decided.

75. If no "images of ballots cast" can be retrieved, printed and counted, Travis County cannot

unequivocally determine the outcome of the election. The Court may order each of the more than

4,000 voters who voted in person to testify as to how they voted, pursuant to Texas Election Code

Sec. 221.010. "SECONDARY EVIDENCE FOR UNAVAILABLE BALLOTS. If an

examination of ballots is needed in an election contest and the ballots are lost, destroyed, or

otherwise beyond the reach of the tribunal, the voters who cast the ballots may testity as to how

they voted."

76. In the alternative, if Travis County cannot produce "images of ballots cast" to be printed

and counted, then Travis County cannot unequivocally determine the outcome of the election, and

the election is void. As a matter oflaw, the Court must therefore order a new election. TEX. ELEC.

CODE § 232.041. 24

VII. PETITION TIMELY FILED

77. This Election Contest is brought in accordance with the provisions of TEX. ELEC. CODE

§232.008, which requires the Original Petition to be filed with the District Court not later than the

30 th day after the date the official result of the contested election is determined.

78. On Tuesday, December 30 th , the Mayor and City Council of Austin conducted an official

canvass and certification of the Run Off results for all races on the December 16, 2014 ballot,

including District 4. However a recount was conducted on January 6, 2015 and those results did

not change. The deadline for submission of a petition in an election contest is January 29, 2015.

The original petition was filed on or before that date and was timely filed.

24 Sec. 232.041. NEW ELECTION ORDERED IF CONTESTED ELECTION VOID. In an election contest in which the contested election is declared void, the court shall include in its judgment an order directing the appropriate authority to order a new election.

Pressley v. Casar Fifth Amended OP Contest p.27 365 VIII. CONDITIONS PRECEDENT

79. All conditions precedent have been perfonned or have occurred.

IX. VIOLATIONS OF LAW

Texas Election Code Violation

Lack of Notice of Relocation of Polling Place

82. The facts asserted above are included herein by reference. Contestant claims that voters

were disenfranchised due to the failure of Travis County to provide and/or maintain an adequate

notice at the general election polling place (Highland Mall and other voting locations identified

herein) detailing the relocation of the polling place to the Travis County offices for the runoff

election in December 2014. Such failure to provide notice of relocation of the polling place for

the runoff election is a violation of Texas Election Code § 43.062. Section 43.062 states:

Sec. 43.062. NOTICE AT PREVIOUS POLLING PLACE. If the location of the polling place for an election precinct is different from the location used for the precinct in the preceding election ordered by the same authority, the authority responsible for giving notice of the election shall, if possible, post notice at the entrance to the previous polling place stating that the location has changed and providing the location of the new polling place.

Added by Acts 2001, 77th Leg., ch. 802, Sec. 1, eff. Sept. 1,2001.

Contestant seeks an order requiring a vacation of the runoff election and an order requiring a

properly noticed runoff election be held forthwith.

Failure to Provide "Images of Ballots Cast"

83. Contestant asserts that the December 2014 runoff fails to comply with the statutory

requirements of the Texas Election Code Chapters 128 and 213. Section 128.001 states:

Sec. 128.001. COMPUTERIZED VOTING SYSTEM STANDARDS.

Pressley v. Casar Fifth Amended OP Contest p.28 366 (a) The secretary of state shall prescribe procedures to allow for the use of a computerized voting system. The procedures must provide for the use of a computerized voting system with: (1) multiple voting terminals for the input of vote selections on the ballot presented by a main computer; and (2) a main computer to coordinate ballot presentation, vote selection, ballot image storage, and result tabulation.

84. Section 2l3.016 states:

Sec. 2l3.016. PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES.

During any printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount, the full recount committee is not required to be present. The recount committee chair shall determine how many committee members must be present during the printing of the images. Each candidate is entitled to be present and to have representatives present during the printing of the images in the same number as Section 2l3.0l3(b) prescribes for watchers for a recount.

Added by Acts 2003, 78th Leg., ch. 583, Sec. 2, eff. Sept. 1,2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 1235 (S.B. 1970), Sec. 22, eff. September 1,2009.

85. As asserted above, the Travis County Clerk cannot provide "images of ballots cast" for

purposes of a recount in the December runoff election as required by the Texas Election Code.

Because the Travis County Clerk cannot produce "images of ballots cast", the ballots cast on the

electronic voting machines cannot be verified. Contestant seeks an order from this case vacating

the December 2014 runoff election. Since the only verifiable votes in the December runoff are

the ballots by mail, said votes resulting in a tie in the runoff, Contestant seeks an order from this

Court directing that another runoff election be conducted and that the Travis County Clerk

provide "images of ballots cast" in such a runoff election for purposes of allowing all affected

parties to verify the results of said runoff in compliance with the above-referenced provisions of

Pressley v. Casar Fifth Amended OP Contest p.29 367 the Texas Election Code.

Violation ofSection 2 of the Federal Voting Rights Act

86. Contestant asserts that failure to provide notice at the general election polling place of the

relocation of the polling place for the runoff has a disproportionate impact on minority voters in

violation of Section 2 of the Voting Rights Act. 42 U.S.c. §§ 1973b(f), 1973l(c)(3» (now 52

USC 10303) bars voting discrimination against certain language minorities--specifically, persons

of American Indian, Asian American, Native Alaskan, and Spanish heritage. Members of the

protected class of Spanish heritage in Precincts 142 and 156 (Appendix 1) were disenfranchised

by the confusion created by the lack of notice of the change in polling place for the December

2014 runoff election. Contestant seeks an injunction from this Court pursuant to 42 U.S.c.

§ 1983 vacating the runoff election and requiring a new runoff election forthwith.

IX. MOTION TO MODIFY STANDARD DISCOVERY PROCEDURES

87. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign

an order shortening the time allowed for Contestee to comply with the discovery requests set forth

88. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign

an order shortening the time allowed for Contestee and third-party witnesses, voters, the City of

Austin and Travis County, to comply with the discovery requests set forth below in paragraph to

no more than ten days, and that the period of notice required for Deposition on Written Questions

89. Contestants further requests that the Court sIgn an order requmng that Contestee's

Pressley v. Casar Fifth Amended OP Contest p.30 368 response to the request for disclosure, and all other responses and answers in this case be hand-

90. The foregoing modifications to standard discovery procedures are necessary because of

the accelerated procedures that apply to this election contest. The foregoing reasons constitute

good cause for the requested relief.

X. RESPONSE TO SPECIAL EXCEPTIONS

Introduction

91. Dr. Pressley has found indisputable election irregularities and mistakes that were made in

conducting the District 4 election held on December 16,2014 that show the outcome as shown by

the final canvass is not accurate and she is bringing this election contest. Because illegal votes were

counted, eligible voters were prevented from voting, legal votes were not counted, and Travis

County election officers made errors and mistakes, Dr. Pressley is asking, pursuant to Section

221.003 (a), for the "court to ascertain whether the outcome of the District 4 Run Off election, as

shown by the canvass, is not the true outcome." If a contestant is prevented by the county clerk

from proving the actual number of legal votes by the clerk's act of not preserving or requiring or

counting images of the ballots actually cast there is no way to conclude the clerk reported the true

outcome . Without the images of the actual ballots there is not a true outcome and the run-off

election must be repeated preserving the images of the ballots cast as provided and required by state

law.

92. Contestee alleges Dr. Pressley is attacking the entire state-wide electronic-voting system. In

fact, the contest is limited solely to the discrete errors made by the Travis County Clerk's office in

this single election. All counties are capable of complying with the law and preserving images of

the actual ballots cast by a voter. Travis county just elected to ignore that law and the sound public

Pressley v. Casar Fifth Amended OP Contest p.3l 369 policy behind it. It cannot certify a true outcome by reason of its own misconduct in this election

that is at issue in this case.

93. Weaknesses in the Travis County Election systems are well known and have been

extensively identified. Several years ago, Travis County Clerk Dana DeBeauvoir herself convened

a Travis County Clerk Election Study Group to evaluate Travis County's current voting system

and make recommendations for future systems.

(http://www. traviscountyclerk.org/eclerklcontentlimages/presentations_ articles/pdCtc _elections _E

SG_Report_2009. pdf) Clerk DeBeauvoir had determined that a study group was needed to

address public concerns about electronic voting and to ensure ample time to plan for an upgrade or

replacement of the existing system and "its most significant recommendation is that Travis County

move away from an all-electronic voting system to one that offers electronically-counted paper

ballots." Clerk DeBeauvoir is on record stating the need to redesign and replace Travis County's

voting systems:

(http://www. traviscountyclerk.org/eclerklcontent/images/presentations articles/pdf tc elections 2

013.07.26 star.pdf and https://www.supportthevoter.gov/files120 13/09/Dana-Debeauvoir-STAR-

Voting-System-Diagram.pdf and "Three years ago, DeBeauvoir decided that something had to

change. "1 said, 'Okay, I'm fed up. I'm going to design my own system. '" Part of her frustration

stemmed from complaints lodged against the county that she felt blamed officials for things

beyond their control."( https://www.texastribune.org12014107/09/travis-county-forges-new-

territory-voting-machines/):

94. Given the specific voting irregularities outlined herein, Dr. Laura Pressley fully supports

the Clerk's search for a more accountable and election system. One critical component that the

Travis County system is lacking is that Texas Election Code allows for a manual recount using

Pressley v. Casar Fifth Amended OP Contest p.32 370 "images of ballots cast." When Pressley requested a manual recount using "images of ballots cast"

for the District 4 Run Off election, Travis County is on record stating they cannot comply.

Interestingly, in January 2015, Pressley was informed both by DeBeauvoir and former Travis

County Judge Bill Aleshire that no other candidate in Travis County's history had requested a

manual recount of "images of ballots cast." A review of reported cases shows no indication that

any candidate in the state has requested such a statutorily-allowed recount. This contest, therefore,

to the extent it decides issues regarding this mandate and this language, is a case of first . . 25 ImpressIOn.

The court will, of course, be guided by the Texas Supreme Court's view of statutory language, 25 which is not as fluid as that of federal courts or other state courts.

If the statutory text is unambiguous, a court must adopt the interpretation supported by the statute's plain language unless that interpretation would lead to absurd results. See Tune v. Tex. Dep't ofPub. Safety, 23 S.W.3d 358,363 (Tex.2000) ("We must enforce the plain meaning of an unambiguous statute."); RepublicBank Dallas, NA. v. Interkal, Inc., 691 S.W.2d 605,607 (Tex.1985) ("Unless a statute is ambiguous, we must follow the clear language of the statute. "); Brazos River Auth. v. City of Graham, 163 Tex. 167,354 S.W.2d 99, 109 n. 3 (1962) ("[O]perating as we are under a strict theoretical division of governmental powers, it would take a bit of doing on the part of the judiciary to say, in the absence of ambiguous and uncertain statement or patent and manifest absurdity, that the Legislature intended something different from the clear import of the words chosen by it.. .. "); Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1039 (1916) (The literal meaning of a statute may be disregarded "only where it is perfectly plain that the literal sense works an absurdity or manifest injustice.").

Texas Dep't ofProtective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004). (emphasis added.)

See also AIC Mf!tnt. v. Cre'i/s. 246 S.W.3d 640 (Willet. J.. concurrinQ:) (internal citations omitted) (citinQ: to Alex SheshunoffMf!mt. Servs .. L.P. v. Johnson. 209 S.W.3d 644.652 nA (Tex. 2006) and 542 U.S. 241, 267, 124 S. Ct. 2466, 159 L. Ed. 2d 355 (2004) (Scalia, J., concurring in the judgment).

This Court recognizes that legislative intent is best embodied in legislative language. We recently cautioned that "over-reliance on secondary materials should be avoided, particularly where a statute's language is clear. If the text is unambiguous, we must take the Legislature at its word and not rummage around in legislative minutiae."

Pressley v. Casar Fifth Amended OP Contest p.33 371 95. With regard to the fact that Travis Count's use of one version of the Hart InterCivic

eSlate system may violate the Texas Election Code requirements for storing, retrieving, and

printing of "images of ballots cast," we respectfully assert any regulatory redefinition equating

"images of ballots cast" with "cast vote records" exceeds the statutory grant of authority.26 Given

that the term "ballot" is defined in the Texas Election Code and "images of ballots cast" is

referenced with regard to recounts and "cast vote records" are not, the Texas Election Code trumps

the Secretary of State's administrative definitions.

96. Addressing the various pieces of evidence that became available and the irregularities that

occurred during the recount is important in the analysis and evaluation of this election contest.

The recount evidence is critically material to this case and the allegations are legally relevant to

this election contest. Moreover, it is in the recount failures that Travis County's failure to use

equipment up to statutory standards becomes clear.

97. The legal question raised by an election contest is whether the outcome of the

contested District 4 election is not, or cannot be conclusively determined to be, the true outcome.

Specifically, Dr. Pressley has found that illegal votes were counted, Travis County Elections

Division prevented eligible voters from voting, failed to count legal votes, and engaged in other

irregularities that materially affected the election results. Moreover, because of the failure of

Travis County to maintain "images of ballots cast", the outcome cannot be determined to be the

Faced with clear statutory language, "the judge's inquiry is at an end." It may be a widespread practice to mine the minutiae of legislative records to discern what lawmakers had in mind, but as we have held, relying on these materials is verboten where the statutory text is, as here, absolutely clear. 26 \Ve cannot construe the rule in a manner that is inconsistent with the statute. See, e.g., Centerpoint Energy, Inc. v. Public Uti!. Comm'n, 143 S.W.3d 81,85 (Tex. 2004) (observing that rule is invalid if it violates statutory provision); Texas Workers' Compo Comm In v. Patient Advocates, 136 S.W.3d 643, 657-58 (Tex. 2004) Tex.1Ifut. Ins. Co. v. Vista CmZV. Afed. Ctr., LLP, 275 S.W.3d 538,557,2008 Tex. App. LEXIS 8602,45 (Tex. App. Austin 2008) (emphasis added.)

Pressley V. Casar Fifth Amended OP Contest p.34 372 true outcome.

Case Law Presented by Contestee is largely irrelevant

Andrade v. NAACP, 345 S.W. 3d 1 (Tex. 2011)

98. Contestee Casar's ORIGINAL ANS\VER AND SPECIAL EXCEPTIONS TO

CONTESTANT'S ORIGINAL CONTEST OF ELECTION references the Andrade v. NAACP

case, seeks to apply it to the instant case, and states that "the Secretary of State's certification of

eSlate for use by Travis County did not violate equal protection rights of voters using electronic

voting system."

99. Contestee Casar misinterprets Contestant Dr. Pressley's claims in this case. She does not

assert a claim of violation of equal protection as it relates to electronic voting systems. Rather,

Contestant Dr. Pressley asserts that illegal votes were counted, election officers prevented eligible

voters from voting, election officers failed to count legal votes, and election officers made mistakes

that resulted in an election outcome which is not the true outcome and did not preserve images of

ballots to be used as acheck on the computer results which prevented a determination that the election

and the recount was a true outcome. Thus, the Andrade case is irrelevant.

100. Contestee Dr. Pressley's election contest claims were not asserted in Andrade v. NAACP

and Dr. Pressley has been directly harmed by Travis County's conduct during the District 4

election and she has been directly harmed by the County's inability to ascertain the true outcome

because "ballots," "original ballots" and/or "images of ballots cast" cannot be counted.

Tex. Democratic Party v. Williams, 285 Fed. Appx. 194, 195 (5 th eire 2008)

101. In CONTESTEE'S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO

CONTESTANT'S ORIGINAL CONTEST OF ELECTION he references Tex. Democratic Party

v. Williams, and applies it to our case with regard to "the eSlate did not violate voters' rights under

Pressley v. Casar Fifth Amended OP Contest p.35 373 the First and Fourteenth Amendments to the United States Constitution."

102. Contestee Casar misinterprets Contestant Dr. Pressley's claims in this case. She does not

assert claims of violations of the First and Fourteenth Amendments to the United States Constitution as

it relates to electronic voting systems. Rather, Contestant Dr. Pressley asserts, illegal votes were

counted, election officers prevented eligible voters from voting, election officers failed to count legal

votes, and election officers made mistakes that resulted in an election outcome which is not the true

outcome and they did not preserve the images of ballots which is a possible function of the eSlate

program.

103. Additionally, as a matter of law, Dr. Pressley claims that "cast vote records" do not meet the

statutory requirements of "ballots," "original ballots" and/or "images of ballots cast." Therefore, if

"images of ballots cast" were not preserved, and thus cannot be retrieved, printed and counted,

then Travis County cannot unequivocally determine the outcome of the election.

Pressley v. Casar Fifth Amended OP Contest p.36 374 Conclusion

104. Therefore, based on the foregoing, the Contestant requests the run-off election be

declared void, a new run-off be held at which images of the ballots actually cast be preserved

using procedures compliant with the Texas Election Code for use in the event of a contest, the

Court award reimbursement for the cost of her election contest, recount fees, and that the Court

grant all other and further relief, in law and in equity, to which she may be entitled.

David Rogers LA W OFFICE OF DAVlD ROGERS

By: lsi David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836 - Telephone 512-201-4082 - Facsimile Email:

Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney jor Contestant Dr. Laura Pressley

Pressley v. Casar Fifth Amended OP Contest p.37 375 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on April 20, 20] 5 on counsel of record as follows:

Charles 'Chuck' Herring Jr. 09534100

Jess Irwin - 10425700

Lauren Ross - 24092001

Herring & Irwin, L.L.P. 1411 \Vest Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580

Kurt Kuhn - 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002- Facsimile FOR CONTESTEE, GREGORIO "GREG" CASAR

Andrew M. Williams Assistant County Attorney Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767

Fax: email: andrew.williams@traviscountytx.gov

By: /s/ David Rogers

Pressley v. Casar Fifth Amended OP Contest p.38 376 4/23/2015 10:23:54 AM Velva L. Price District Clerk Travis County D-1-GN-15-000374

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487 From: Mark Cohen To: Charles Herring; "Dan l\1ills"; Warren Vavra Cc: Andrew Williams; firm(mdarogerslaw.com; Sherine Thomas; Pat Kelly; "Lauren Ross"; "Kurt Kuhrl"; "Palvino, Jessica B." Subject: RE: Pressley - Casar Date: Friday, April 24, 2015 1:46:34 PM

I will review the discovery docs and your agreement to stipulate to the ad111issibility of the county's production. If I think I need any other testimony from the county to respond to your motion I will ask you to stipulate to it and if you feel that you cannot do that I will do my job as an attorney and get the evidence I think I need in admissible form and assert my right to do so before a summary judgment is set or considered. That is the best I can do to accommodate everyone's goal to expedite a final decision while still doing so based on all the available evidence

Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512R472-5444 (f) Ma rk@cohen !ega lservices.com www. CohenLegal Services .com

Everyone needs a break for peace of mind- especially those involved with the legal system. Rent our Villa with pool in Playa Del Carmen near the beach and town. Need a vacation? see http:Uvillaalegreplaya.com and http://www.steinhardt.us/villaalegre/

CONFIDENTIALITY NOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer.

TREASURY DEPARTMEf\JT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Charles Herring [mailto:cherring@herring-irwin.com] Sent: Friday, April 24, 2015 1:40PM To: Mark Cohen; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar

4 4497 Whether you depose Ms. DeBeauvoir will be up to you, her, the County, and the Court. I was just pointing out that based on the only two reasons you have given thus far for deposing her, the deposition appears unnecessary.

From: Mark Cohen [mailto:markCwcohenlegalservices.com] Sent: Friday, April 24, 2015 1:33 PM To: Charles Herring; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar

Thank you for that stipulation I will prepare one for the response to the rnsj. That will shorten the deposition somewhat. However I have my reasons for wanting a deposition and it certainly is not to delay resolution of this matter past July 20. I am certain you would never let an opposing counsel tell you when you need to take a deposition either

Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512•474a4424 512-472H5444 (f) Ma rk@cohen !ega lservices.com www.CohenLegalScryices.com

Everyone needs a break for peace of mind- especially those involved with the legal system. Rent our Villa with pool in Playa Del Carmen near the beach and town. Need a vacation? see http:Uvillaalegreplaya.com and http://www.steinhardt.us/villaalegre/

COI\IFIDENTIALITY i'JOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer.

TREASURY DEPAR.TMENT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Charles Herring [mailto:cherring@herring-irwin.com] Sent: Friday, April 24, 2015 1:29PM

4498 To: Mark Cohen; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar

We agree to stipulate in advance to the authenticity of any document that Travis County produces, f\]o deposition is necessary for that. Given that the Secretary of State, the County Clerk, the City Clerk, and the United States Election Commission all say exactly the same thing-that for electronic voting a Cast Vote Record is a ballot image--we can stipulate to that. Pressley filed for the recount on the last possible day, then filed suit the last possible day (1/30), and then failed to serve Casar until 2/10. The general election was November 4, six rnonths before the early May hearing date. Six months after the election is the opposite of "speed" for an election contest. In many instances, trial of an election contest has to be set within 5 days after the filing of an answer. Election Code sec. 232,012(d), --Chuck Herring

From: Mark Cohen [mailto:mark@cohenlegalservices.com] Sent: Friday, April 24, 2015 1:02PM To: 'Dan Mills'; 'Warren. Vavra'; Charles Herring Cc: 'Andrew Williams'; firm@darogerslaw,com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar

Dear .Judge Mills: We will need to take the deposition of Travis County clerk before we can be prepared to respond We have third party discovery from them but we will need admissible testimony to get them admitted . we also need admissible testimony from them that the cvr's are the only document they have to meet the image of ballot cast requirement, Sheri, the county attorney in charge is out until next week. As I told Mr. Herring I will be contacting Sherri and him for a mutually convenient date to take the depositions and then we have of course the printing of the deposition and the time for the deponent(s) to read and sign and I will need time to prepare a response to the Motion. The phantom need asserted to move this case so fast that it prejudices my client's chance to fairly present the case is strongly objected to and it just unnecessarily creates additional grounds for necessitating an appeal which will delay the final decision even more, The pendency of this case is having no more of an effect on Mr. Casar that every litigant waiting for the procedures of a trial to work their way and there is no evidence that the city is being adversely effected in any way. Frankly Mr, Herring's tactical efforts to prevent Ms, Presley from having a fair opportunity to provide you with all of the admissible evidence just affirms how important it is that I have the time to provide it to you. Given the trial is not until July 20 Ms. Pressley will object to any shortening of her time to respond and notice of hearing that is less than the 21 days required by the rules and ignores our right to conduct reasonable discovery before being required to respond to a Motion for Summary .Judgrnent. Let's not sacrifice fairness for speed. I respectfully request that the Motion be set 21 days or more after I receive the deposition of the county clerks in form that is not subject to objection(it is signed or signature is waived or excused) necessary to have my evidence to meet the Summary Judgment allegations. As in most case some of the evidence if not most of it comes from other sources so it is not frivolous to take depositions to obtain it from the source that will satisfy the rules of evidence as to admissibility, My client is anxious to get the facts out and obtain a final

4499 resolution as anyone since she is the one who is being deprived of an election with a true outcome. The city council and Mr. Casar are proceeding quite efficiently as if this case had never been filed

Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512R474M4424 512a472M5444 (f) Ma rk@cohenlega lservices.com www.CohenLegalServices.com

Everyone needs a break for peace of mind- especially those involved with the legal system. Rent our Villa with pool in Playa Del Carmen near the beach and town. Need a vacation? see http://villaalegreplaya.com and http:Uwww.steinhardt.us/vi!laalegre/

CONFIDENTIALITY NOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer.

TREASURY DEP.L\RTMENT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication {including any attachrnents) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any transaction or matter addressed herein.

4500 No. D-1-GN-15-000374

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR § Contestee § 201 st JUDICIAL DISTRICT

NOTICE OF DEPOSITION ON ORAL TESTIMONY OF A REPRESENTATIVE OF TRAVIS COUNTY CLERK'S OFFICE

PLEASE TAKE NOTICE that, pursuant to the Texas Rules of Civil Procedure,

Contestant Laurie Pressley, by and through her attorneys of record, give notice of deposition on

oral testimony of a Representative of Travis County Clerk's Office with advanced knowledge in

the areas of:

1. What kinds of data are stored and are capable of being stored in the voting system used by Travis County in 2014. 2. How and where data is stored in the voting system used by Travis County in 2014. 3. Security protocols in the voting system used by Travis County in 2014. 4. Details of the way the system was used by Travis County for that election. 5. Hart InterCivic documents and interpretation of those documents provided by Travis County including but not limited to Audit Logs, Manuals, and Contract for the various components of voting system used by Travis County in 2014 (Tally, Rally, eSlate, JBC, MBB, Ballot Now, SERVO, etc.). 6. Programming of Hart Voting System software. 7. Operation and technical details of Hart Voting System software and hardware. 8. What information exists along with operational and technical details regarding the eSlate Manual and its contents for the voting system used by Travis County in 2014. 9. What information exists regarding Judge's Booth controller (JBC) Manual and its contents for the voting system used by Travis County in 2014. 10. What information exists along with operational and technical details regarding Mobile Ballot Box Manual and Technical Specs for the voting system used by Travis County in 2014 .. 11. What information exists along with operational and technical details regarding

1 4488 Manuals for the correct versions of the Hart Voting System being used by Travis County. See Table 1.5. 12. What information exists along with operational and technical details regarding all Mobile Ballot Boxes that contain District 4 vote data from Early Voting and Election Day for the voting system used by Travis County in 2014. 13. What information exists along with operational and technical details regarding all Mobile Ballot Boxes that used by Travis County in 2014. 14. What information exists along with operational and technical details regarding all Mobile Ballot Boxes containing Ballot Now CVR's as identified in the Tally audit logs for the voting system used by Travis County in 2014. 15. What information exists along with operational and technical details regarding All Original District 4 CVR files stored on the eSlate, the JBC, MBB and Tally for the voting system used by Travis County in 2014. 16. What information exists along with operational and technical details regarding the identify of Travis County's Programmer and Contractors for Hart Voting System for the voting system used by Travis County in 2014. 17. What information exists along with operational and technical details regarding Contract between Hart and Travis County--Appendix B Contractor's RFP Response for the voting system used by Travis County in 2014. 18. What information exists along with operational and technical details regarding Mobile Ballot Box driver software and reader for the voting system used by Travis County in 2014. 19. What information exists along with operational and technical details regarding Cast Vote Records from MBB's from Ballot Now tabulation of Ballot by Mail for the voting system used by Travis County in 2014.

Deposition will take place on ______at _ _ _ _ _ , at the office of _ _ __

located at _________ , unless parties mutually agree in writing to hold the deposition

on a different date or time and, or at a different location.

The deposition shall continue from and will be recorded by

stenographic means and video before an officer authorized to administer oaths. The deposition

will be taken for the purposes of discovery, for the use at trial in this matter, and for any other

purpose permitted under the Federal Rules of Civil Procedure.

NoTICE OF DEPOSITION PAGE2 OF 5 448 Mark Cohen 805 W. 101h St., Suite 100 Austin, Texas 78701 David Rogers 512-474-4424 Mark@CohenLegalServices.com Law Office of David Rogers 1201 Spyglass, Suite 100 Austin, TX 78746 (512) 923-1836 (512) 201-4082 (fax) DARogers@aol.com

Is/David Rogers David Rogers State Bar #24014089 Attorney for Contestant

NoTICE OF DEPOSITION PAGE3 OF 5 44 0 CERTIFICATE OF SERVICE

Pursuant to Federal Rules of Civil Procedure, a true and correct copy of the foregoing has been sent on this the 41h day of May, 2015 to counsel for the Travis County Clerk and all parties of record.

Patrick Kelly Pat.Kelly@Co. Travis. Tx. US Sherine Thomas Sherine. Thomas@ Co. Travis. Tx.US Andrew Williams Andrew.Williams@Co.Travis.Tx.US David Escamilla, County Attorney 414 W. 11th St. Granger Bldg., Suite #500 P.O. Box 1748 Austin, Texas 78767 Attorneys for Dana DeBeauvoir, Travis County Clerk and Travis County Voter Registrar Bruce Elfant 5501 Airport Blvd, Austin, TX 78751

Charles 'Chuck' Herring Jr. cherring@herring-irwin. com Jess Irwin Lauren Ross LaurenBRoss@gmail.com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Attorney for Contestee Gregorio "Greg" Casar

Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive,# 310 Austin, Texas 78731 Attorney for Contestee Gregorio "Greg" Casar

Jessica Palvino jpalvino @mcginnislaw .com MCGINNIS, LOCHRIDGE AND KILGORE LLP 600 Congress, Suite 2100 Austin, TX 78701

NoTICE OF DEPOSITION PAGE4 OF 5 44 1 (512) 495-6079 (512) 505-6379- Facsimile State Bar No. 24048780 Attorney for Contestee Gregorio "Greg" Casar

Is/ David Rogers David Rogers

NoTICE OF DEPOSITION PAGE5 OF 5 44 2 Exhibit D

Page 1

1 NO. D-1-GN-15-000374

2 LAURA PRESSLEY IN THE DISTRICT COURT Contestant 3

4 vs. TRAVIS COUNTY, TEXAS 5

6 GREGORIO "GREG" CASAR 7 Contestee 201ST JUDICIAL DISTRICT

8 ******************************************

9 ORAL DEPOSITION OF

10 DANA DEBEAUVOIR 11 MAY 11, 2015

12 ******************************************

13 14 ORAL DEPOSITION OF DANA DEBEAUVOIR, produced as 15 a witness at the instance of the Contestee GREGORIO 16 "GREG" CASAR, and duly sworn, was taken in the

17 above-styled and numbered cause on May 11, 2015, from 18 9:44 a.m. to 12:24 p.m., before KATHERINE A. BUCHHORN, 19 Certified Shorthand Reporter in and for the State of 20 Texas, reported by machine shorthand, at the offices of

21 County Clerk's Courthouse Conference Room, Room 222, 22 Heman Marion Sweatt Courthouse, 1000 Guadalupe, Austin, 23 Texas 78701, pursuant to the Texas Rules of Civil 24 Procedure and the provisions stated on the record or

25 attached hereto.

Sympson Reporting- 512.374.0596

1881 Page 2 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 A P P E A R A N C E S

3 FOR THE CONTESTANT:

4 MARK COHEN THE LAW OFFICES OF MARK COHEN & ROSE COHEN 5 805 W. lOth Street Suite 100 6 Austin, Texas 78701 512.474.4424/512.472.5444 (fax) 7 mark@cohenlegalservices.com

9 FOR THE DEPONENT, DANA DEBEAUVOIR:

10 SHERINE E. THOMAS DIRECTOR LITIGATION DIVISION - TRAVIS COUNTY 11 314 W. 11th Street Austin, Texas 78701 12 512.854.9513/512.854.4808 (fax) sherine.thomas@traviscountytx.gov 13 - and - 14 ANDREW M. WILLIAMS 15 ASSISTANT COUNTY ATTORNEY - TRAVIS COUNTY 314 W. 11th Street, Suite 500 16 Austin, Texas 78701 512.854.9513/512.854.9472 (fax) 17 andrew.williams@traviscountytx.gov

1882 Page 3 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 FOR THE CONTESTEE, GREGORIO "GREG" CASAR:

2 CHARLES HERRING, JR. HERRING & IRWIN, L.L.P. 3 1411 West Avenue Suite 100 4 Austin, Texas 78701 512.320.0665/512.519.7580 (fax) 5 cherring@herring-irwin.com 6 - and -

7 JESSICA PALVINO MCGINNIS LOCHRIDGE 8 600 Congress Avenue, Suite 2100 Austin, Texas 78701 78701 9 512.495.6079/512.505.6379 (fax) jpalvino@mcginnislaw.com 10

12 ALSO PRESENT:

13 Laura Pressley, Ph.D. Abbe Waldman 14

1883 Page 4 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 I N D E X

2 PAGE

3 Appearances. 2

4 Exhibits . . 5

5 Requested Information. 7

6 Stipulations . 8

7 DANA DEBEAUVOIR 8

9 Examination by Mr. Herring . . . . 9 Examination by Mr. Cohen . . . . . 40 10 Further Examination by Mr. Herring 128

11 Reporter's Certificate 132 12

13 Changes and Signature . . . . . . . . . . . . 135

1884 Page 5 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 E X H I B I T S

2 NO. DESCRIPTION PAGE

3 1 9 Travis County Clerk Dana DeBeauvoir 4 Curriculum Vitae

5 2 *** NOT INTRODUCED *** 6 3 21 7 Election Advisory No. 2012-03

8 4 22 Electronic Voting System Procedures 9 5 23 10 Glossary of Key Election Terminology - 2007 11 6 51 12 eSlate Voting System - About the eSlate Voting System 13 7 44 14 By-Mail Ballot example

15 8 45 By-Mail Ballot example 16 9 17 *** MARKED - NOT INTRODUCED or PROVIDED TO REPORTER *** 18 10 42 19 Votes by Precinct - JBCs Election Day GR14, Precinct 133C 20 11 119 21 District 4 Runoff Cast Vote Record Recount files Meta-Data - Date Modified 22 12 56 23 Audit Log - Official, Travis County December 16 2014 Joint Special Runoff 24 Election

1885 Page 6 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

3 13 54 GR14 City of Austin Manual Recount of 4 District 4 5 14 *** NOT MARKED *** 6 15 7 *** NOT MARKED *** 8 16 129 Precinct 133 Voters - December 16, 2014 9 Voting location: Memorial United Methodist Church 10 17 130 11 Precinct 142 Voters - December 16, 2014 Voting location: Travis County Airport 12 Offices

13 18 130 Precinct 209 Voters - December 16, 2014 14 Voting location: Grant AME Worship Center 15 19 130 16 Precinct 258 Voters - December 16, 2014 Voting location: Walnut Creek Elementary 17 20 130 18 Precinct 260 Voters - December 16, 2014 Voting location: Lanier High School 19

20 21 22

24 25

1886 Page 7 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 DOCUMENTS/INFORMATION REQUESTED (OR MAY BE REQUESTED) 2 NO. DESCRIPTION PAGE 3 1 74 4 Names of tally administrators

5 2 75 Name of tally administrator making 6 specific entry

7 3 87 Names of people more familiar with 8 Audit Log

1887 Page 8 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 S T I P U L A T I 0 N S

3 The attorneys for all parties present stipulate and

4 agree to the following items:

6 The deposition of DANA DEBEAUVOIR is taken pursuant

7 to Notice;

9 That all objections will be made pursuant to the

10 Texas Rules of Civil Procedure;

12 That the original transcript will be submitted for

13 signature to the witness' attorney, SHERINE E. THOMAS,

14 and that the witness or the witness' attorney will

15 return the signed transcript to Sympson Reporting within

16 20 days of the date the transcript is provided to the

17 witness' attorney. If not returned, the witness may be

18 deemed to have waived the right to make the changes, and

19 an unsigned copy may be used as though signed.

1888 Page 9 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 PROCEEDINGS

2 THE REPORTER: Are there any special

3 stipulations today or just by the Rules?

4 MR. COHEN: Just regular stuff.

5 (Witness sworn.)

6 DANA DEBEAUVOIR,

7 having been first duly sworn, testified as follows:

8 EXAMINATION

9 BY MR. HERRING:

10 Q. Would you state your name for the record?

11 A. My name is Dana DeBeauvoir.

12 Q. And Ms. DeBeauvoir, you are the county clerk of

13 Travis County, right?

14 A. Travis County Clerk.

15 (DeBeauvoir Exhibit No. 1 marked)

16 Q. (BY MR. HERRING) And let me hand you a copy of

17 what I have marked as Exhibit 1, which I believe is your

18 resume.

19 A. (Moved head up and down.)

20 Q. And is that what that is?

21 A. Yes, sir.

22 Q. And that's current?

23 A. Yes, it is.

24 Q. Okay. And I just want to ask you-- it's a

25 lengthy resume. I just want to ask you a few points

1889 Page 37 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 A. Pretty commonly, yes.

2 Q. Same process, generally?

3 A. Generally, yes.

4 Q. And is that true for election jurisdictions

5 throughout Texas?

6 A. Yes, it is.

7 Q. And do they all follow that same, generally,

8 standard process?

9 A. Yes, they do.

10 Q. Now, in Ms. Pressley's deposition, I asked her

11 about a couple of locations. The Highland Mall location

12 and then the Airport Boulevard location. And it turned

13 out, it would -- according to Google Maps, it would take

14 about three minutes to drive from the one location to

15 the other.

16 MR. COHEN: Objection; form.

17 Q. (BY MR. HERRING) And Ms. Pressley said that

18 that's voter disenfranchisement, to have to drive three

19 minutes.

20 MR. COHEN: Objection; form.

21 Q. (BY MR. HERRING) In your -- in your opinion,

22 is that -- is that disenfranchisement, to drive for

23 three minutes?

24 MR. COHEN: Objection; form.

25 A. None of the places that we used for the -- for

1917 Page 38 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 the runoff election, are inconvenient, nor represented

2 any particular obstacle or barrier for voters. We

3 believe everything was fair and equitable, in the

4 distribution of those vote centers for the runoff

5 election.

6 MS. THOMAS: Objection; form.

7 Q. (BY MR. HERRING) Since we've got some -- a

8 series of objections, why don't we ask you a related

9 question.

10 Do you have an opinion concerning whether

11 the voting locations used in the runoff, were fair and

12 reasonable?

13 A. Do I have an opinion? Yes, I have an opinion.

14 Q. And what's the opinion?

15 A. Yes. The opinion is --

17 A. they were all very much reasonable,

18 ADA-compliant, fully accessible, well-known, well-used,

19 and fully advertised; so they were fair and equitable.

20 Q. (BY MR. HERRING) Did you receive any input

21 from anyone, to the effect of, "Well, we ought to change

22 some voter locations in District 4 to effect the outcome

23 of the election"?

24 A. I received nothing. No input.

25 Q. And would you have -- if somebody came to you

1918 Page 40 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 votes than Ms. Pressley?

2 A. Correct.

3 Q. Thank you for your patience.

4 MR. HERRING: I'll pass the witness. 5 We'll play musical chairs here, and Mr. Cohen will ask

6 some questions. 7 THE WITNESS: Okay.

8 Do you want to take a break?

9 MS. THOMAS: I was going to say, how long

10 have we been going? 11 (Simultaneous speaking - unreportable) 12 MR. HERRING: Let's take a little break.

13 MS. THOMAS: Can we take a break, just

14 because it's a good stopping point? 15 MR. HERRING: Yeah. That's great. 16 THE WITNESS: Okay. All right.

17 (Recess 10:23 a.m. - 10:38 a.m.) 18 (DeBeauvoir Exhibit Nos. 6 - 12 marked)

19 EXAMINATION 20 BY MR. COHEN:

21 Q. Good morning, Ms. DeBeauvoir. 22 A. Good morning, again. 23 Q. We have known each other 24 A. Many years.

25 Q. since you started -- the first time you ran

1920 Page 41 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 for election. I think

2 A. Yeah.

3 Q. -- I was a big supporter of you then --

4 A. You are.

5 Q. -- and I have been ever since.

6 A. I know. And I'm a fan of yours.

7 Q. That's good. Okay. So I know that you -- what

8 you want to do is make sure that you have the true

9 results of every election that you're in charge of,

10 correct?

11 A. That's correct.

12 Q. And that you want to be able to verify the

13 results of the election if someone challenges that.

14 A. Correct.

15 Q. Okay. And so we are here because someone

16 challenged them

17 A. Uh-huh.

18 Q. -- and we just -- we're not sure that we had a

19 system in place that really actually verified it. Okay?

20 A. I understand.

21 Q. All right. So I'm going to show you -- and you

22 have said that, in your opinion, a cast vote record is

23 the same as an image of a ballot, correct?

24 A. Yes

25 Q. And is that --

1921 Page 42 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 A. it is.

2 Q. because what everybody else told you, or do

3 you actually believe that?

4 A. I actually believe that.

5 Q. And you believe that's the best way to

6 double-check the computer's compilation of the votes on

7 election day?

8 A. I believe it's the only way to know, yes.

9 Q. The only way. Okay. So I'm going to show you

10 what's marked as Exhibit 10. It's a little bit out of

11 order.

12 MR. COHEN: Would you give Mr. Herring a

13 copy of his

14 MS. PRESSLEY: Okay. Is this it?

15 MR. COHEN: Yeah. It's the cast vote

16 record.

17 MS. PRESSLEY: Okay.

18 Q. (BY MR. COHEN) What is that, Exhibit 10?

19 A. It looks like an election day report.

20 Q. Is that a cast vote record?

21 A. Yes, I believe it is. This is

22 Q. So on election day -- let's go through this. I

23 know we all know this, but

24 A. Uh-huh. Okay.

25 Q. Okay. So the voter comes in. They sign in

1922 Page 45 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 MS. THOMAS: Yes. Yes. I'm sorry.

2 A. This is what a by-mail ballot would look like.

3 Q. (BY MR. COHEN) Okay. That's

4 A. This is sort of like an optical scan ballot.

5 Q. Okay. And that says it says "Sample Ballot"

6 on the side of it.

7 A. Okay. This is what a by-mail ballot looks

8 like.

9 Q. Okay.

10 A. Our sample ballots don't look like this. I

11 realize it says that on the side.

12 Q. Yeah.

13 A. This is what a by-mail ballot looks like. It

14 looks like an optical scan ballot.

15 Q. Okay. And then I'll show you, marked

16 Exhibit 8, and what is that? I thought that was

17 what a

18 A. Same thing.

19 Q. That's what a mail-in ballot looks like. You

20 said that -- is that correct?

21 A. By mail, yes, uh-huh.

22 Q. Okay. All right. And then when a person goes

23 to vote at the machine, No. 7 and No. 8 are -- it may be

24 a little bit different, but that's what they look at, in

25 deciding whether -- what -- who they want to vote for;

1925 Page 47 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 opportunity to change it.

2 Q. Okay. Right. And if you don't change it,

3 that's who you vote for?

4 A. Correct.

5 Q. Okay. But when you make your decision, you're

6 looking at Exhibit -- something like Exhibit 8 or 9, not

7 something like Exhibit 10?

8 A. No.

9 MS. THOMAS: Objection, form.

10 A. No. This is your final chance. It'll look

11 like this.

12 Q. (BY MR. COHEN) Okay.

13 A. It's a - - it looks like the summary screen.

14 Q. Exhibit No. 8 or 9 is what shows up in your

15 face when you try to decide who you want to vote for,

16 correct?

17 A. You voting. The process, yes.

18 Q. Yes. Okay.

19 A. Correct.

20 Q. And so you don't see No. 10 when you're

21 deciding who to vote for. You see No. 10 to make sure

22 that who you marked on Exhibit 8 is what you really want

23 to do; is that correct?

24 MS. THOMAS: Objection --

25 A. No.

1927 Page 48 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 MS. THOMAS: form.

2 Hang -- just let me just get the

3 objection in, and then you can answer.

4 Q. (BY MR. COHEN) You still have to answer the

5 question. You said "No"?

6 A. Oh, excuse me. No. It's -- it's not. This is

7 a part of the final decision process, and you still have

8 the chance to change it, and it does look exactly like

9 the summary screen.

10 Q. Okay. So when you see that, it's asking you if

11 you want to change

12 A. It is asking you --

13 Q. what you did on

14 THE REPORTER: Wait. One at a time.

15 Q. (BY MR. COHEN) Hold on. It -- when you see

16 Exhibit 10, it's asking you if you want to change what

17 you marked on Exhibit 7 or 8?

18 A. Correct.

19 Q. Okay. And you're saying-- it's your opinion,

20 I guess -- or the electronic system tells you that the

21 ballot is -- the last chance, this No. 10, your last

22 chance to change, is -- is what you considered to be the

23 ballot the image of the ballot?

24 A. Correct.

25 Q. Okay. And then Exhibit 10 is somehow preserved

1928 Page 49 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 somewhere in the voting machine?

2 A. Multiple places.

3 Q. Okay. Where is it

4 A. Multiple redundancy.

5 Q. Where is it preserved?

7 You can answer as --

8 A. It is preserved twice on the eSlate and once in

9 the JBC. I think that's correct. Or it may be the

10 opposite. It may be twice in the JBC and once in the

11 eSlate. And when I need to correct my answer. It's

12 twice in the JBC and once on the eSlate.

13 Q. (BY MR. COHEN) Okay. What is the JBC?

14 A. Judge's Booth Controller. It's the device that

15 stores the inventory of unvoted ballots, the inventory

16 of voted ballots, and the access codes that qualify --

17 once a qualified voter is ready to vote, they give the

18 voter, so they can start the process.

19 Q. Okay. So Exhibit -- versions of Exhibit 10,

20 depending -- depending on that the voter verified what

21 their choices were

22 A. Yeah.

23 Q. -- are in the JBC in two places?

24 A. Two places.

25 Q. Where in -- where would we find them?

1929 Page 50 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 A. It would be in in

2 MS. THOMAS: Objection; form.

3 A. in medium stored on the JBC. And it's two

4 different kinds of medium. One of them looks kind of

5 like a disk, and one of them looks like -- I think,

6 something like a flash drive.

7 Q. (BY MR. COHEN) And what kind of program is

8 that?

9 A. I don't know.

10 MS. THOMAS: Objection; form.

11 Q. (BY MR. COHEN) You don't know? Is it a

12 Microsoft kind of function -- system or --

13 A. No.

14 MS. THOMAS: Objection; form.

15 Q. (BY MR. COHEN) Okay.

16 A. It was proprietary.

17 MR. HERRING: Mr. Cohen?

18 MR. COHEN: Yes.

19 MR. HERRING: I don't want to clutter up

20 the record with objections. Can I ride on her

21 objections to form, or do you want me to

22 MR. COHEN: That's fine.

23 MR. HERRING: -- lodge independent

24 MR. COHEN: That's fine, because, really

25 she's not representing a party and won't be able to make

1930 Page 51 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 objections at the trial

2 MR. HERRING: Well, that's why I'm

3 MR. COHEN: -- so I understand.

4 MR. HERRING: That's why I'm asking.

5 MR. COHEN: That's -- that's fine. If you

6 want her to make objections for you, I will accept that.

7 MR. HERRING: Well, for her objections to

8 form, I just want to be able to stand on those and have

9 your rule 11 agreement that I can.

10 MR. COHEN: You can stand on those.

11 MR. HERRING: Okay.

12 Q. (BY MR. COHEN) Okay. Now, you have a website

13 that talks about the E-voting system, correct?

15 Q. Is this Exhibit No. 6 an accurate picture of

16 the website page?

17 A. I believe so, yes.

18 Q. Okay. And do you see where I have marked --

19 MS. THOMAS: Objection; form.

20 Go ahead.

21 Q. (BY MR. COHEN) Do you see where I have marked

22 on there -- that's probably why she's objecting; there's

23 a mark on there that I made, that shows what I'm talking

24 about. I don't want to go over the whole page. I just

25 want to go over that line. And what does it say?

1931 Page 53 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 Q. (BY MR. COHEN) Well, it doesn't say "Official

2 Ballot" on it, does it?

3 MS. THOMAS: Objection; form.

4 You can answer.

5 A. I don't think I ever really noticed.

6 Q. (BY MR. COHEN) There's a lot of other things

7 that the statutes require to be on the ballot, that are

8 not on Exhibit 10. Isn't that true?

9 MS. THOMAS: Objection; form.

10 A. I don't know.

11 Q. (BY MR. COHEN) You don't know what the law

12 requires to be on a ballot?

13 MS. THOMAS: Objection; form.

14 Q. (BY MR. COHEN) It's okay if you don't. I

15 mean, most people don't, I'm sure.

16 MS. THOMAS: Objection; form.

17 A. I know that there are huge differences between

18 what the law says for paper ballots and what the law

19 says for electronic. And I'd have to have the law in

20 front of me, to make the distinction between the two.

21 Q. (BY MR. COHEN) Do you think there's a

22 description in the law, of what needs to be on an

23 electronic ballot?

24 MS. THOMAS: Objection; form.

25 A. I think it would take a thorough reading of the

1933 Page 54 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 code, to make those distinctions. No, I don't think

2 it's in one place.

3 Q. (BY MR. COHEN) Okay. But there is a place

4 where a ballot is defining what has to be on a ballot

5 A. Paper ballot.

6 Q. somewhere?

7 A. yes.

8 Q. Yes. Does it say "paper ballot"?

9 A. Probably.

10 Q. Okay. But you could be wrong about that?

11 MS. THOMAS: Objection; form.

12 A. I don't think so.

13 Q. (BY MR. COHEN) Okay. Is this a paper ballot,

14 Number 7

15 A. Yes.

16 Q. -- and 8?

17 A. Yes.

18 Q. This is a paper ballot?

19 A. That's what it look-- that's what a paper

20 ballot looks like. This is a representation of a paper

21 ballot. That's why it said it's by mail.

22 Q. Okay.

23 (DeBeauvoir Exhibit No. 13 marked)

24 Q. (BY MR. COHEN) I'm showing you what's marked

25 as Exhibit 13.

1934 Page 55 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 MR. COHEN: Do we have another copy of

2 this for him?

3 MS. PRESSLEY: Sure do.

4 Q. (BY MR. COHEN) Do you know what that is?

5 A. Yes.

6 Q. What is that?

7 MS. PRESSLEY: What number is that?

8 MR. COHEN: 13.

9 MS. PRESSLEY: All right.

10 A. This document, Exhibit 13, looks like one of

11 the tally sheets that we used for the recount.

12 Q. (BY MR. COHEN) Okay. And it's got your

13 that little red thing over there --

14 A. Uh-huh.

15 Q. -- that's -- that's your "DD"?

16 A. Yes.

17 Q. Okay. So do you have any question about

18 whether that's an accurate version of what you used for

19 the recount?

20 A. I don't think so.

21 Q. You think it is?

22 A. I think it is.

23 Q. Okay.

25 Q. (BY MR. COHEN) Okay. I'll show you what's

1935 Page 56 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 marked as Exhibit 12. If you want to look through that

2 and see what ...

3 A. All right.

4 Okay.

5 Q. Does that look, to you, like the audit log from

6 the runoff election?

7 A. I believe so.

8 MS. THOMAS: Objection; form.

9 THE WITNESS: I'm sorry.

10 A. I believe so.

11 Q. (BY MR. COHEN) Okay. Now, Let me get back to

12 one thing. Do you -- is there -- does the eSlate system

13 have a tally capability?

14 A. Yes.

15 Q. Could the eSlate system make a copy of the

16 voter's action on the actual ballot, that it looks at it

17 when it makes a choice?

18 A. Not like

20 THE WITNESS: I'm sorry.

21 MS. THOMAS: Go ahead.

22 A. Not like this.

23 Q. (BY MR. COHEN) Okay. It cannot make a copy of

24 this?

1936 Page 57 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 MS. THOMAS: Objection; form.

2 Q. (BY MR. COHEN) Okay. Can it make a copy of

3 something that -- where the ballot is marked?

4 MS. THOMAS: Objection; form.

5 A. No.

6 Q. (BY MR. COHEN) Okay. What version of the

7 eSlate system are you using right now?

8 A. I don't remember. We'll have to look it up.

9 It might say on here, someplace. I don't remember.

10 Q. You don't remember. Okay.

11 And as you updated the -- with the new

12 versions of the eSlate system, did you have some group

13 of scientists and election experts verify that there

14 was that the update was appropriate?

15 A. Yes. We go through a procedure, through the

16 Secretary of State's office; and the main verification

17 is called "hash code testing."

18 Q. That goes -- you do that every time you

19 incorporate an update into your system; is that correct?

20 A. Every time.

21 Q. Okay. Let's take a look at the what does

22 the Tally -- what does the Tally portion of the eSlate

23 system do? What is that function?

24 A. Tally is a separate module that is only used

25 for election night, to tally results from by-mail early

1937 Page 58 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 voting, in-person mail voting, and then election night.

2 And it's -- it's just -- as I said, it's a separate

3 module, it tallies the votes for election night, and

4 then it's also used to communicate those results to the

5 general public and to media, in a nutshell.

6 Q. So-- but it's not the official tally, correct?

7 A. It's not-- no.

8 Q. No.

9 A. It is for unofficial results on election night.

10 Q. Got you. Okay. Now, let me go back. I forgot

11 to ask you a question about Exhibit 13.

12 This is -- you'd say this was a tally of

13 the mail-in votes, correct? That it --

14 A. I'm sorry

15 MS. THOMAS: Objection; form.

16 A. -- I can't tell. I would say this is not

17 by-mail ballots. It's the wrong numbers. This is just

18 a general tally.

19 Q. (BY MR. COHEN) Okay. Let me see. So you've

20 got the totals -- not the cumulative total, but the

21 totals at the bottom there --

22 A. Uh-huh.

23 Q. -- I believe -- and you have to correct me if

24 I'm wrong-- or if you don't know, that's okay

25 whether or not those 240 to 240 shows that the mail-in

1938 Page 59 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 ballots

2 A. I see what you're saying.

3 Q. -- were equal?

4 A. You are correct.

5 Q. Okay.

6 A. I'm sorry.

7 Q. Thank you. I just needed to clear that up.

8 That's what I thought it said.

9 A. Yes. Sorry.

10 Q. Thank you.

11 So what security have you put in place to

12 prevent any kind of mistakes or -- intentional or

13 otherwise, in the tally of the voting?

14 A. It's a lengthy list.

16 Q. (BY MR. COHEN) Okay. We're --we're here to

17 hear it.

18 A. Okay. I need a little notepad.

19 MS. THOMAS: This is for what purpose?

20 THE WITNESS: Just for me to remember

21 which ones I'm telling him, for right now.

22 MS. THOMAS: Okay. This is going to be to

23 me.

24 MR. COHEN: I won't look at it. I won't

25 take it from her. Okay.

1939 Page 60 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 A. Gosh.

2 Q. (BY MR. COHEN) Do you know what? Let's do

3 this. Let me keep going, and we'll take a break and you

4 can go back to your office and, you know, make -- have

5 that answer to this question, once it gets

6 A. Okay. It's also on our website. I mean, it's

7 a rather lengthy list.

8 Q. Okay. What I want to ask you -- how they just

9 work. That's --

10 A. Okay. Okay. I can --

11 Q. that's the problem.

12 A. do that, too.

13 Q. Okay. Okay. Do you feel comfortable sitting

14 here and doing it, or would you --

15 A. I do. I think

16 Q. rather take some time --

17 A. I can get everything --

18 Q. Okay.

19 A. -- if you'll just give me just a --

20 Q. Sure. No.

21 A. -- couple of minutes.

22 Q. Take as long -- I don't want you to be at a

23 disadvantage, in answering the question. That's all.

24 A. If I forget something, we'll fill it in.

25 That's okay. I really am--

1940 Page 120 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 Q. (BY MR. COHEN) I'll show you what's marked as

2 Exhibit No. 11. Tell me what that is.

3 A. I'm not sure. What is this?

4 Q. Well, does it look like it could be the CVR --

5 the recount CVR file?

6 A. I believe --

7 MS. THOMAS: Objection; form.

8 If you don't know what that is, just tell

9 him.

10 A. I'm-- I'm sorry. I -- it -- the format --

11 MR. COHEN: Would you please stop coaching

12 your witness?

13 MS. THOMAS: Well --

14 MR. COHEN: I'm going to call the -- you

15 just told her, if she doesn't know what it is, what to

16 answer.

17 MS. THOMAS: Well, but she already

18 MR. COHEN: You can't do that.

19 MS. THOMAS: said she

20 MR. COHEN: She is the one --

21 MS. THOMAS: doesn't know what it is.

22 MR. COHEN: -- testifying, not you.

23 You -- you --

24 MS. THOMAS: She already said she doesn't

25 know what it is.

2000 Page 121 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 MR. COHEN: Then let her testify to that. 2 That's fine. I don't want you saying anything. It's 3 against the Rules. 4 MR. HERRING: Mr. Cohen, you need to lower 5 your voice.

6 MS. THOMAS: You need to -- 7 MR. COHEN: So please stop. I'm almost 8 done. Just -- if you want to make 25 zillion ridiculous 9 objections, you go right ahead; but don't tell her 10 what -- don't make any comment, except "Objection, 11 form." 12 MS. THOMAS: Mr. Cohen 13 MR. COHEN: And that's all you get to do. 14 MS. THOMAS: if you've got a problem, 15 take it to the judge. 16 MR. COHEN: Yeah. 17 MS. THOMAS: But right now --

18 MR. COHEN: Well, you're still doing it. 19 MS. THOMAS: -- she already told you 20 MR. COHEN: You're still doing it. You're 21 still violating the Rule. 22 MS. THOMAS: You're the one --

23 MR. COHEN: Why don't you just stop? 24 MS. THOMAS: If you have a problem, take 25 it to the judge.

2001 Page 122 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 MR. COHEN: I have a question for the --

2 MS. THOMAS: Ask her the --

3 MR. COHEN: -- for the witness.

4 MS. THOMAS: -- question, then.

5 MR. COHEN: I did. I asked her a

6 question, and now that you've talked so many times and

7 told her all what to say --

8 MS. THOMAS: I did not.

9 MR. COHEN: we don't really know what

10 the question was anymore

11 MR. HERRING: Mr. Cohen --

12 MR. COHEN: -- so I'll ask it again.

13 MR. HERRING: -- ask the question. Move

14 on. Stop yelling.

15 Q. (BY MR. COHEN) Does that look, to you, like it

16 could be the recount CVR file?

17 A. Maybe. Here is the Mark, here is what my

18 problem is with it: I don't recognize the format, at

19 all.

20 Q. Yeah. Okay. That's --

21 A. The data might be something I'd recognize, but

22 this is completely unfamiliar to me.

23 Q. That's perfectly all right. Thank you.

24 Okay. Did your office have any recount

25 activities on January 4th, 5th, or 6th?

2002 Page 130 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 MR. HERRING: That's 16.

2 MR. COHEN: Oh, that's 16?

3 MR. HERRING: Yeah.

4 Do the same with that one.

5 (DeBeauvoir Exhibit Nos. 17 marked)

6 Q. (BY MR. HERRING) And I'll show you 17 and ask

7 you to identify what's the notice to and what's the new

8 location?

9 A. It says Highland Mall is the previous location

10 and that the Travis County main location is the new one.

11 Q. Okay.

12 (DeBeauvoir Exhibit Nos. 18 and 19 marked)

13 Q. (BY MR. HERRING) And all of these that I'm

14 showing you, were they all posted at the old voting

15 location?

16 A. At the old location, correct.

17 18.

18 Q. And what is 19?

19 A. 19 is the location posted at McBee Elementary

20 School, indicating that it was the old location; and the

21 new location is Walnut Creek Elementary.

22 (DeBeauvoir Exhibit No. 20 marked)

23 Q. (BY MR. HERRING) And let me show you what's

24 been marked 20.

25 A. A notice posted, indicating that Austin

2010 Page 131 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 Brethren was the old location and that Lanier High

2 School is the new location for the runoff election.

3 Q. And all of those were posted to assist voters?

4 A. Posted, correct.

5 Q. Were the new voting locations also available in

6 multiple other forms, such as websites?

7 A. Correct. They're on our websites, they're in

8 paper forms, they're on the County Clerk's website, the

9 County website, the City website.

11 MR. HERRING: Pass the witness.

12 MR. COHEN: No further questions at this

13 time.

14 (Deposition concluded at 12:24 p.m.)

2011 Page 132 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

8 *****************************************

9 REPORTER'S CERTIFICATION

10 ORAL DEPOSITION OF DANA DEBEAUVOIR 11 MAY 11, 2015

12 *****************************************

13 14 I, KATHERINE A. BUCHHORN, Certified Shorthand Reporter in and for the State of Texas, hereby certify 15 to the following: 16 That the witness, DANA DEBEAUVOIR, was duly sworn by the officer and that the transcript of the oral 17 deposition is a true record of the testimony given by the witness; 18 That the deposition transcript was submitted on 19 May 15, 2015, to the witness, DANA DEBEAUVOIR, c/o SHERINE E. THOMAS, for examination, signature, and 20 return to SYMPSON REPORTING by June 4, 2015.

21 That the amount of time used by each party at the deposition is as follows: 22 MR. CHARLES HERRING, JR. - 0 Hours, 57 Minutes MS. SHERINE E. THOMAS - 0 Hours, 0 Minutes 23 MR. MARK COHEN - 1 Hour, 33 Minutes 24 That pursuant to information given to the deposition officer at the time said testimony was taken, the 25 following includes counsel for all parties of record:

2012 Page 133 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 FOR THE CONTESTANT, LAURA PRESSLEY: MARK COHEN 2 THE LAW OFFICES OF MARK COHEN & ROSE COHEN 805 W. lOth Street, Suite 100 3 Austin, Texas 78701 512.474.4424/512.472.5444 (fax) 4 mark@cohenlegalservices.com

5 FOR THE CONTESTEE, GREGORIO "GREG" CASAR: MR. CHARLES HERRING, JR. 6 HERRING & IRWIN, L.L.P. 1411 West Avenue 7 Austin, Texas 78701 512.320.0665/512.519.7580 (fax) 8 cherring@herring-irwin.com

9 FOR THE DEPONENT, DANA DEBEAUVOIR: SHERINE E. THOMAS 10 TRAVIS COUNTY 314 W. 11th Street 11 Austin, Texas 78701 512.854.9513/512.854.4808 (fax) 12 sherine.thomas@traviscountytx.gov

13 I further certify that I am neither counsel for, 14 related to, nor employed by any of the parties or attorneys in the action in which this proceeding was 15 taken, and further that I am not financially or otherwise interested in the outcome of the action. 16 Further certification requirements pursuant to 17 Rule 203 of TRCP will be certified to after they have occurred. 18 Certified to by me this 14th day of May, 2015. 19

21 /s/ Katherine A. Buchhorn KATHERINE A. BUCHHORN, 22 CSR Expiration: 12/31/15 SYMPSON REPORTING 23 Firm Registration No. 696 7800 N. MoPac Expressway, Suite 120 24 Austin, Texas 78759 512-374-0596/512-697-8313 (fax) 25 office@sympsonreporting.com

2013 Page 134 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 FURTHER CERTIFICATION UNDER RULE 203 TRCP

3 The original deposition of DANA DEBEAUVOIR was/was not returned to the deposition officer on or before 4 , 2015. If returned after the stipulated-aate,-the original deposition was returned on 5 ;

6 If returned, the attached "Changes and Corrections" page contains any changes and the reasons therefor; 7 If returned, the original deposition was delivered 8 to SHERINE E. THOMAS, 314 W. 11th Street, Granger Building, Suite 420, Austin, Texas 78701, Custodial 9 Attorney;

10 That $ is the deposition officer's charges to HERRING & IRWIN, L.L.P., 11 1411 West Avenue, Suite 100, Austin, Texas 78701, attorney for GREGORIO "GREG" CASAR, for preparing the 12 original deposition transcript and any copies of exhibits; 13 That the deposition was delivered in accordance with 14 Rule 203.3, and that a copy of this certificate was served on all parties shown herein and filed with the 15 Clerk.

16 Certified to by me this day of 20 17

19 KATHERINE A. BUCHHORN, Texas CSR 2788 20 CSR Expiration: 12/31/15 SYMPSON REPORTING 21 Firm Registration No. 696 7800 N. MoPac Expressway, Suite 120 22 Austin, Texas 78759 512-374-0596/512-697-8313 (fax) 23 office@sympsonreporting.com

2014 Page 135 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 CHANGES AND CORRECTIONS 2 WITNESS NAME: DANA DEBEAUVOIR 3 DATE: MAY 11, 2015 4 Reason Codes: ( 1) to clarify the record; ( 2) to conform to the facts; ( 3) to correct a transcription error; ( 4) 5 other (please explain) .

6 PAGE/LINE CHANGE REASON CODE 7

2015 Page 136 Pressley vs. Casar Dana Debeauvoir- May 11, 2015

1 SIGNATURE

3 I, DANA DEBEAUVOIR, have read the foregoing

4 deposition and hereby affix my signature that the same

5 is true and correct, except as noted on the previous

6 page.

9 DANA DEBEAUVOIR

10 THE STATE OF

11 COUNTY OF

12 Before me, _________________ , on this day personally

13 appeared DANA DEBEAUVOIR, known to me (or proved to me

14 under oath or through (description of

15 identity card or other document) to be the person whose

16 name is subscribed to the foregoing instrument and

17 acknowledged to me that she executed the same for the

18 purposes and consideration therein expressed.

19 Given under my hand and seal of office this

20 day of ' 20 21

23 NOTARY PUBLIC IN AND FOR

24 THE STATE OF

25 COMMISSION EXPIRES:

2016 EXHIBIT C

The County Clerk has produced everything requested that fell within the scope of the Judge's Order on the County's objections to the first set of requests and Motion for Third Party Discovery Control Plan.

Andrew

From: Mark Cohen [mailto:mark@cohenleqalservices.com] Sent: Monday, May 18, 2015 3:38 PM To: Andrew Williams; 'darogers@aol.com' Cc: cherrinq@herring-irwin.com; laurenbross@qmail.com; 'kurt@kuhnhobbs.com'; 'jpalvino@mcginnislaw.com'; Sherine Thomas; Pat Kelly; Amy Pollock; Amy Murray; Tiffaney Gould Subject: RE: Pressley: Response re Privilege Log Request

Do I understand that other than what is listed in the log the county clerk has produced everything requested in the request for production it received from Pressley?? The County Clerk has produced all responsive documents that fell within the scope of discovery and has provided a log of all documents withheld as privileged. The Clerk stand on her objections as asserted in her response to your first request for production.

4531 5/19/2015 6:27:35 PM Velva L. Price District Clerk Travis County D-1-GN-15-000374 No. D-1-GN-15-000374

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § § GREGORIO "GREG" CASAR § Contestee § OF TRAVIS COUNTY, TEXAS § § 201 st JUDICIAL DISTRICT

CONTESTANTS' SIXTH AMENDED ORIGINAL CONTEST OF ELECTION, FOR THE OFFICE OF THE AUSTIN CITY COUNCIL, DISTRICT 4

NOW COMES, Laura Pressley, Contestant, and files this Sixth Amended Original

Petition for Election Contest for the Office the Austin City Council, District 4 (Petition) against

Gregorio "Greg" Casar, Contestee. 1 In support of this election contest, Dr. Pressley will

respectfully show as follows:

1. The contestant intends that discovery be conducted under level three, a custom discovery

plan for election contest devised with the approval of the court.

2. This contest is based on the facts that election irregularities, mistakes, manual, mechanical

and electronic errors occurred with the election activities and tabulation of the votes that were cast

using the electronic voting machines during Early Voting and on Election Day for the December

1 This 6th Amended Petition is filed in response to the Discovery production of Travis County and has more specific allegations pleaded. Also, this Sixth Amended Petition is filed in Response to Contestee Gregorio "Greg" Casar's Answer and Special Exceptions to Contestant's Original Contest of Election, and the Court's order of Aprill3, 2015 regarding those Special Exceptions, and Casar's Motion to Strike the Fifth Amended Petition.

Pressley 61h Amended Election Contest p.l 860 16, 2014 Joint Special Runoff Election for the District 4 Austin City Council City of Austin

election (referred to as the "Runoff') and January 6, 2015 District 4 Austin City Council Recount

(referred to as the "Recount").

3. There are numerous election irregularities in the administration and results tabulation of the

Runoff election. Specifically, the most material issues are related to:

a. nine instances of corrupt Mobile Ballot Box errors during vote tabulation on election

night at Central Counting,

b. missing data log entries in the vote tabulation systems, the Tally Audit and Ballot Now

audit logs,

c. suspicious mathematical patterns observed in the Runoff Election results that show

them to be erroneous and not credible,

d. Travis County election officers instructing election officers to not print and retain

crucial, mandated election records listing specific vote results for each candidate in a

race (Zero Tapes, Tally/Results tapes),

e. election equipment security seals that were improperly sealed, subsequently

unsealed and replaced,

f. not producing, counting and retaining statutorily required ballot images,

g. obstructing Contestant's official poll watchers at polling locations and Central

Counting after the polls closed.

4. These violations materially affected the outcome of the election in that an inordinate

number of election irregularities occurred and there was a lack of accountability of election

officers with regard to no printing of Zero Tapes, no printing of Results Tapes, denying office poll

watchers access to election activities, improperly sealed electronic devices, security breaches of

Pressley 61h Amended Election Contest p.2 861 the Tally vote tabulation system, corrupt Mobile Ballot Box entries, and Tally Audit log deletions.

Because of the erroneous reported election results, the egregious election irregularities, the missing

election records, possible criminal and fraudulent violations, the outcome of the Runoff cannot be

known.

5. Specifically, these violations caused illegal votes to be counted and election officers failed

to count legal votes correctly. In addition, the pervasive and numerous election irregularities make

it impossible to conclude that the reported results are the true outcome of the election. Finally,

because no ballots, or images of ballots were preserved by the Office of the Travis County Clerk,

Dana DeBeauvoir, there are no ballots to count and no ballots to use to verify the electronic "cast

vote records" in the Recount except for the paper Absentee/Mail-In ballots .

6. Section 221.0 12 of the Texas Election Code provides in pertinent part:

Sec. 221.012. TRIBUNAL'S ACTION ON CONTEST. (a) If the tribunal hearing an election contest can ascertain the true outcome of the election, the tribunal shall declare the outcome.

(b) The tribunal shall declare the election void if it cannot ascertain the true outcome of the election.

7. "A contestant seeking to have an election declared void under this provision must allege and

prove that the true results of the election are impossible to ascertain." See City of La Grulla v.

Rodriguez, 415 S. W2d 701, 703 (Tex.Civ.App. San Antonio 1967, writ refd n. r. e.)." Garcia v.

Avila, 597 S.W.2d 400, 403, 1980 Tex. App. LEXIS 3027, 6 (Tex. Civ. App. San Antonio 1980,

writ dism'd w.o.j.)

8. As will be presented below, many crucial election records for the 3,937 electronically cast

ballots in the Runoff 2 are missing or corrupted3 on the Travis County's Hart Voting System: Ballot

2 Exhibit A, Runoff Recount Results showing Ballot by Mail ballots of 480, and Cast Vote Records (electronically cast

Pressley 61h Amended Election Contest p.3 862 images, vote tabulation Tally Audit logs 4 , Zero Tapes 5 , Tally/Results tapes 6 •7 , Mobile Ballot Box

. corruptwn · , 1mproper1y sea1ed secunty 89 . . sea1s 10r C': votmg • eqmpment • 10 , etc.

9. The only legal ballots that have been retained, produced and recounted by Travis County,

are the 480 votes cast on paper, Mail in Ballots (Exhibit 1). These ballots show an exact tie at 240

ballots cast as votes for Pressley and 240 ballots cast as votes for Casar (Exhibit 1). Therefore,

the outcome of the election is a tie and neither Pressley nor Casar may be declared the victor.

10. Given the only retained ballots show an exact tie, along with the numerous mathematical

anomalies observed with the Runoff election results, the statutory and mandated retention of important

election records is needed to determine the true outcome of the election. In the absence of these crucial

election records, the outcome cannot be known and this Honorable Court cannot ascertain the true

outcome of the Runoff election between Pressley and Casar, and thus declare the Runoff election void

and order a new election.

11. Contestant Laura Pressley is a resident of Austin City Council District 4, Travis County,

Texas. She was a candidate in the Austin City Council District 4 Runoff Election on December

12. Contestee Gregorio "Greg" Casar is a resident of Austin City Council District 4, Travis

County, Texas. He was a candidate in the Austin City Council District 4 Runoff Election on

ballots) of3,937. 3 Exhibit B, Tally Audit logs showing missing entries and multiple "Invalid/Corrupt MBB[Mobile Ballot Box]" errors. 4 Exhibit B, Tally Audit logs, 5 Exhibit C, Judges' Booth Controller (JBC) Judge's Envelope, p. xxx, Zero Tapes missing 6 Exhibit C, Judges' Booth Controller (JBC), Judge's Envelope cover states, "DO NOT PRINT THE TALLY" 7 Exhibit D, Travis County Clerk, Dana DeBeauvoir's Deposition regarding no Results tapes, p. 128, line 15. 8 Exhibit B, Tally Audit Logs, Mobile Ballot Box corruption on pgs. 5, 22, 23, 26, 27, 29 and 42. 9 Exhibit D, DeBeauvoir's deposition regarding MBB corruption errors, p. 98, lines 18-20, and p. 99, lines 4-9 10 Exhibit E, Hart Voting System election equipment with improperly sealed security seals, election official signed affidavits.

Pressley 61h Amended Election Contest p.4 863 December 16, 2014. The election results were canvassed on December 30, 2014 and Mr. Casar

was declared the victor by 1,291 votes. 11 A "manual recount" of all early voting, election day,

provisional, and mailed-in ballots was attempted on January 6, 2015.

13. The mail-in ballots were exactly tied between the candidates, at 240 each, for a total of 480

votes (Exhibit A). The attempted recount was a nullity and a full recount was made impossible in

that the attempted recount violated state law and the manual recount of the 3,937 electronically

cast ballots (Exhibit A) was incorrectly performed 12 using of the "cast vote records" in lieu of

"images of ballots cast." Based on the counting of "cast vote records" and mail in ballots, as

could be predicted, the invalid recount did not change the reported results of the election and the

original declaration of Mr. Casar as the victor for the runoff election did not change.

14. Casar was sworn into office on January 6, 2014. He has been notified of the filing of this

action by a delivery of a copy of this Petition in accordance with TEX. ELEC. CODE§ 21.003(b).

15. Jurisdiction and venue in this case are proper and mandatory in Travis County because

the office being sought is for a district entirely within the boundaries of Travis County under the

Numerous Irregularities in Counting of Votes

16. Many election irregularities, errors, mistakes occurred with regard to the counting,

tabulation, and reporting of votes for the District 4 Austin City Council Runoff Election and the

11 Exhibit F, Official December 16, 2014 Runoff Cumulative Election Results. 12 Though the County Clerk termed the action a "manual recount," because the event as it occurred did not satisfy statutory criteria, Pressley does not concede that what occurred was actually a statutory manual recount as defined by the Texas Election Code 128.001(a)2, 213.016, 214.049(e), 213.016.

Pressley 61h Amended Election Contest p.5 864 Official Recount. Many of these unexplained gaps in security and defect vote counts at a very

minimum made fraud possible and make ruling out fraud an impossibility.

Unnatural Mathematical Patterns Raises an Inference That the Reported Runoff Results are

Erroneous-November General Election and December Runoff Results Are the Same

17. The November 4, 2014 General Election for the District 4 Austin City Council City of

Austin Election was comprised of 8 candidates and the December 2014 Runoff was comprised of 2

candidates (Pressley vs Casar). A statistical analysis of the results of the election showed

mathematical anomalies with the General Election and the Runoff. See table below.

Top 9 Prednds with> 200 Votes, SO% ofVoters November 4th Dec 16th Pd lP Casar lP+ GC lP% lP Casar Total lP% 155 188 517 71J5 27% 197 449 646 30% 222 275 354 &2.9 233 312 545 43% 135 128 498 626 20% 106 415 522 139--HH 251 2.59 510 49% 198 229 427 46% 217 176 2.59 435 40% 151 2.19 370 41% 149--Ave G so 306 385 2.1% 76 279 355 21% 140 240 181 421 5?;'1) 187 169 356 53% 1.64 82 157 239 34% 62 12.2. 1B4 34% 133 69 223 2.92. 24% 65 173 2.38 27%

Election Overall Results 1489 1754 4243 35.1% 1275 3643 35.0% Average of Top 9 P<:ts (unweighted) 35.1% 35.1%

18. Voters m the top nme (9) precincts m the City of Austin District 4 election compnse

roughly 80% of the total voters in the Runoff (as documented by Exhibit G). 13 The ratio of

precinct level votes that the Contestant received compared to Contestee is the same ratio in the

November General Election (8 candidates) as it was in the December Runoff Election (2

candidates), 35% vs 35% respectively. 14

13 Exhibit G, Comparison Results, p. 1. 14 Exhibit G, Comparison Results, p. 1.

Pressley 61h Amended Election Contest p.6 865 19. In addition, the average of the percentages the Contestant received in the unweighted

precincts compared to Contestee, in the November General Election and the December Runoff, are

also equal at 35% and 35%, respectively. The fact that so many precincts showed exactly the

same and unchanged results for the General Election and the Runoff is sufficient to raise an

inference that the reported results are erroneous.

20. The summary analysis (Exhibit G, p. 1) of the precinct level voting results for the General

Election 15 and the precinct level results for the Runoff Election, 16 show very unusual and unique

mathematical patterns and anomalies. This analysis reveals the Runoff results are erroneous and

are a result of counting and tabulation errors committed by Travis County and thus the outcome of

the election cannot be determined.

21. Reviewing Travis County Voter election results for the General and Runoff Elections,

there was an overall attrition of over 4,000 voters from the General and Runoff elections. The

occurrence of duplicated relative results for Pressley and Casar for the General and Runoff

Election shows the results are strictly isolated to the District 4 Pressley vs Casar race, are

erroneous, and are indicative of errors committed by Travis County in the vote collection and/or

tabulation and clearly raises an inference that the reported results are not accurate.

22. For voters in just the top 9 precincts, there was an attrition of at least 600 voters (who

voted for either Pressley or Casar) between the General and the Runoff Elections24 · The unique

occurrence that the results remain unchanged between Pressley's City Council General and Runoff

is not correct.

23. From 2003 - 2014, a total of eleven races have resulted in a City of Austin City Council

15 Exhibit H, Official 2014 General Election Results by precinct, self-authenticating public record, website for the Travis County Clerks' Election Results: http://www.traviscountyclerk.org/eclerk/Content.do?code=E.l 16 Exhibit I, Official Runoff Election Results cumulative, and by precinct, self-authenticating public record, website for the Travis County Clerks' Election Results: http://www.traviscountyclerk.org/eclerk/Content.do?code=E.l

Pressley 61h Amended Election Contest p.7 866 Runoff. 17 The graph below shows the ranges and standard deviations of the four, weighted and

unweighted precinct results, values for those 11 races (similarly calculated as the Pressley race).

24. Furthermore, compared to the Pressley vs Casar race, no race in 11 years shows such a

tight distribution with a standard deviation of0.06%. Ten races have greater than lOx the standard

deviation (0.67% or higher) and three races show greater than 100x the standard deviation

(7.05% or higher).

Comparison of Retums for all Austin City Run Off Races G.eru\'ral Eledlonvs Run Off (Rimse and Standard Oeviatkm Shown)

f'

i!lu" OOI'c;t.v l!t.m

c::::J 'i,i)• f',U,. >.D • LH'l>

Q >-.!>·(Pa"i

l'r

No other Council race in the history of electronic voting in the City of Austin for Council races

from 2003 - 2014 has shown such a tight distribution between a General and a Runoff Elections

and this fact strengthens the inference that the results are erroneous. These vote tabulation

mistakes by Travis County are likely related to violations of, but not limited to

a. mishandling and tabulation of the electronic ballots cast on the Hart InterCivic

hardware and software, 17 Self-authenticating Travis County Website of precinct level results for Austin City Council races for the General and the Runoff elections for 2003,2005,2008, and 2011 http://www.traviscountyclerk.org/eclerk/Content.do?code=E.l.

Pressley 61h Amended Election Contest p.8 867 b. not adhering to the specific laws and procedures as defined by the Texas

Constitution 18 , Texas Election Code 19 , Texas Secretary of State 20 , US Federal . El ectwns c omm1sswn . . 2122 ' , an d

25. Hart InterCivic operation and training manuals. 23 Errors committed by Travis County

caused these 3,937 electronically cast votes 24 to be counted and tabulated incorrectly. Thus,

election officers failed to count legal votes correctly.

26. Because so many high volume District 4 precincts showed exactly the same percentage

results for Pressley and Casar, it is possible mistakes were made with the saving, loading and/or

counting the votes on the memory cards (Mobile Ballot Boxes). In addition, errors, mistakes, or

possible fraudulent activity may have occurred with the hardware or software used for counting

and tabulating voting results (Mobile Ballot Boxes, Tally, Rally, BOSS, JBC, eSlates, etc.) used

for the Runoff.

A. Early Voting-More Ballots than Voters

27. Anomalies occurred with counting and reporting of the Early Voting results. The

December 30, 2014 canvassed results for Early Voting were inconsistent with the December 1-10,

2014 Travis County Early Voting voter reports received from Travis County.

28. During Early Voting from December 1 -December 10, Travis County published 24 hour

reports that reported 2,651 total voters voted in Early Voting in District 4. Reviewing the voter

18 Texas Constitution, Article 6, Section 4 19 Texas Election Codes 52.062, 52.063, 52.064, 52.070, 124.063 20 Exhibit J, Texas Secretary of State 2014 Electronic Voting Procedures: (http://www.sos.state.tx. us/elections/laws/electronic-voting-svstem-procedures.shtml), and the 2012-03 Advisory (http://www. sos.state. tx. us/elections/laws/advisory20 12-03. shtml) 21 Exhibit K, 1990 Federal Election Commission Performance and Testing Standard for Punchcard, Marksense, and Direct Recording Electronic Voting Systems. 22 Exhibit L, 2002 Federal Election Commission Voting System's Standards, Volume 1, Perfonnance Standards. 23 Exhibit M, Hart Voting System Support Procedures Training Manual, self-authenticating Idaho Secretary of State Website: http://www. sos.idaho.gov/elect!clerk/Hart/ac63 00-006 _ 62D _ SupportProcedures_ %23 3 90-cp. pdf 24 Exhibit A

Pressley 61h Amended Election Contest p.9 868 ID's, 437 entries existed for those submitting Ballot by Mail (BBM).

29. There were at least 28 duplicate entries for BBM. 25 At least 28 Ballot by Mail, mail-in

ballots, appear to have been counted and/or referenced twice or three times. See Exhibit N for

30. Once duplicate BBM's were removed from the voter rolls, 2,622 unique voter names

remained that voted in Early Voting according to the Early Voting lists from Travis County that

were distributed prior to Election Day, December 16, 2014.

31. Based on Travis County's Canvassed and Recount results for those that voted for Greg

Casar, or Laura Pressley or Under Voted, the total number of ballots cast for Early Voting is

2,701. The unknown extra 80 ballots are distributed among 15 of the 18 precincts of the District 4

Race (One precinct, with one eligible voter, showed no votes.). 26 See table below.

32. The pervasiveness of the Early Voting discrepancies in 15 precincts are evidence of

systemic errors occurring in the counting. Thus the Early Voting tabulation accuracy cannot be

relied on to determine the outcome of the election.

33. The issue of the mismatch between the number of individuals who voted and the number of

ballots cast, is indicative of several known and documented scenarios of errors and security

breaches that can occur with the Hart Electronic Voting Systems 27 •

25 Exhibit N, Duplicate Ballot by Mail entries reported in Travis County's 24hr Early Voting Rolls 26 Exhibit 0, Early Voting Discrepancies, more ballots than voters. 27 Exhibit P, California Secretary of State Source Code Review of the Hart Expert and Exhibit S, affidavit declaration by Dr. Jefferey Jacobson, Ph.D. regarding thelnterCivic Voting System: http://pubs.cs.rice.edu/sites/pubs.cs.rice.edu/files/Source%20Code%20Review%20ofl/o20the%20Hart%20InterCivic%20 Voting%20System. pdf

Pressley 61h Amended Election Contest p.JO 869 Early Voting Dist:repandes

Total Ballots Cast Voters Names per Ballot Pet per Canvass and Early Voting Roll<; Discrepancy Recount from County (Over votes}

156 431 42.2 9 2.22 319 307 12 135 271 2.64 7 139-- 2.70 265 5 140 233 2.28 5 2.17 2.16 2.05 11 149-- 195 191 4 133-- 149 145 4 164-- llfi 113 3 2.60--- 108 103 5 142-- 86 83 3 2.09-- 81 77 4 2.23-- 68 66 2. 2.58-- 59 55 4 2.68-- 59 57 2 211-- 24 25 -1 2.24-- 16 16 0

34. These tabulation irregularities also show the reported Runoff results for the Pressley/Casar

race are in question and are erroneous. 28 35. According to expert, Dr. Jefferey Jacobson, Ph.D. ,

The patterns Dr. Pressley found in the vote data are suspicious enough to warrant further analysis and testing, especially in light of the numerous election irregularities and given the security weaknesses in the Hart InterCivic voting system.

36. The previously noted, highly unlikely mathematical patterns associated with the 3,643

votes cast in the top 9 precincts, along with the Early Voting discrepancies, strongly suggests that

the electronically cast and counted votes in the Runoff cannot be relied in determining the true

outcome of the election because there are no true ballot images to verify the voters' intent.

Contestant alleges the counting errors-in tabulating the top 9 precincts (3,643 votes) and the

counting errors in tabulating the Early Votes (2,701 votes)-committed by Travis County caused

28 ExhibitS, Expert affidavit and declaration by Dr. Jeffrey Jacobson, Ph.D.

Pressley 61h Amended Election Contest p.ll 870 these votes to be counted incorrectly and prevents knowing or ascertaining the true outcome of the

B. Election Irregularities, Mistakes and Possibility of Fraud Makes Results Invalid

37. Travis County election officers committed numerous mistakes and election law violations

related to all of the 3,937 electronically cast votes in the District 4 Runoff that materially affected

the outcome of the election. For these specific electronically cast votes, Travis County failed to

adhere to critical election rules, counting procedures, and security protocols as outlined in the

Texas Constitution, the Texas Election Code, the Texas Secretary of States Procedure/Advisories,

and the Federal Election Commission's Voting System's Standards, and the Hart Voting System

requirements. Violations that materially affected the outcome of the election are outlined in

chronological order as they occurred on Election Day and during the Recount in the following

respects:

1. Not printing Zero Tape Reports

38. The Texas Secretary of State29 and Hart InterCivic Manuals 30 require the printing of Zero

Tape Reports during Early Voting and on Election Day at each precinct/polling location. Zero

Tape Reports are defined by the Texas Secretary of State as "A Zero Tape is the tape that is

printed when the voting machine is first set up at the polls. It is called a Zero Tape since all

contests or propositions should have zero votes next to each name or question." Exhibit J, p. 13

and 35.

39. According to the Texas Secretary of State's Election Advisory No. 2012-03(6)(g)(vi), for

"Opening the Polls: vi. 1. At a minimum print one zero tape from each applicable device, as follows: The

29 Exhibit J, Texas Secretary of State 2012-03 and June 2014 Electronic Voting Procedures Advisories. 30 Exhibit M, Hart Training Manual

Pressley 61h Amended Election Contest p.l2 871 presiding judge, an election clerk, and not more than two watchers, if one or more watchers are present, shall sign the zero tape. 2. Maintain zero tapes in a secure location to be returned with election materials (i.e. Ballot Box #4 or other secure means designated by the general custodian of election records)." (emphasis added)

40. According to Hart's Voting System Support Procedures Training Manual Exhibit J, p. 108,

"The "Zero Tape" report displays the contests and options [candidates] available on the ballot( s)

for this polling place. It is proof that the JBC has no votes cast on it the first day of Early Voting

and/or the start of Election Day." emphasis added.

41. Travis County received a waiver from the Secretary of State granting permission to not

print Zero Tapes for the November 41h General Election because of the extensive number of races

and candidates for the General Election. The Secretary of State did not provide a waiver granting

permission to not print Zero Tapes for the December 16, 2014 Runoff and Special Election which

had a very small number of races and candidates (Austin Mayor, Council Members, AISD and

ACC Trustees).

42. Michael Winn, Travis County Elections Division Director, in a phone call, relayed to

Contestant on December 15, 2014, they were instructing election judges to not print Zero Tapes at

the beginning of Early Voting and to not print Zero Tapes on Election Day for the Runoff.

Review of Discovery documents provided by Travis County, no Zero Tapes (showing the number

of votes present on the Hart Voting equipment for each candidate when the polls open) were

printed during Early Voting and no Zero Tapes were printed on Election Day of the Runoff. This 31 is evidenced by the JBC Report Envelope produced by Travis County, Exhibit C.

43. Travis County disregarded the printing Zero Tape Reports and the Hart InterCivic

operational procedures and the retention of crucial election records mandated by the Texas

31 Exhibit C, JBC Envelope contents produced by Travis County showing the District 4 polling locations election materials- no Zero Tapes were printed or signed by election judges at those locations.

Pressley 61h Amended Election Contest p.l3 872 Secretary of State. As a result, as the Hart Training Manual (Exhibit M) states, there is no ''proof

that the JBC has no votes cast on it the first day of Early Voting and/or the start of Election Day"

(emphasis added) at the Countywide Polling locations the Runoff.

44. A critical election security protocol for retaining key election records was ignored. This

undermines the claimed DRE results, (3,937) electronically cast ballots, for the District 4 race

because there is no "proofthat the JBC has no votes cast on it the first day of Early Voting and/or

the start of Election Day." The Travis County officers violations affected the outcome of the

election because votes may have remained on the voting equipment (Mobile Ballot Boxes

(MBB's), eSlates and JBC) and as a result the court cannot ascertain the true outcome of the

2. Not printing Results/Tally Tape Reports

45. The Texas Secretary of State also mandates the printing of Results/Tally Tape Reports on

Election Day at each precinct/polling location. 32 Tally/Results Tape Reports are defined by the

Texas Secretary of State as "A Results Tape is the tape that is printed when the polls close. It is

called a Results tape since all contests and propositions are listed and have the resulting votes next

to each name or question." Exhibit J, p. 12 and 35.

46. According to the Texas Secretary of State's Election Advisory No. 2012-03(6)(k)(iii) Exhibit J, for

"Closing the Polls:" iii. After the polls have been closed on Election Day, the precinct election officials shall print out, at a minimum, two copies of the results tape from each applicable device and secure the voting device against further use. (Warning do not print the results tape during Early Voting; this includes the last day of Early Voting). 1. The presiding election judge, an election clerk, and not more than two watchers, if one or more watchers are present, shall sign the results tape(s). 2. The copies of the results tape(s) shall be distributed as

32 Exhibit J, Texas Secretary of State 2012-03 and June 2014 Electronic Voting Procedures Advisories.

Pressley 61h Amended Election Contest p.l4 873 follows: a. Envelope #3 this is delivered to the presiding election judge; and b. Ballot Box #4 (or other secure means designated) that is delivered to the general custodian of election records, along with other election media and materials." Emphasis added.

47. Similarly as noted above, Travis County received a waiver from the Secretary of State

granting permission to not print Results/Tally Tape Reports for the November 41h General Election

because of the extensive number of races and candidates for the General Election. 33 The Secretary

of State did not provide a waiver granting permission to not print Results Tapes for the December

16, 2014 Runoff and Special Election which had a very small number of races and candidates

(Austin Mayor, Council Members, AISD and ACC Trustees).

48. Michael Winn, Travis County Director of Elections also relayed to Contestant on

December 15, 2014, that election officers were instructed to not print Tally/Results Tapes at the

close of the polls on Election Day. A review of Discovery documents provided by Travis County,

shows no Results Tapes were printed or signed by election officers on Election Day of the Runoff. 34

49. Travis County produced actual envelopes the election officers used to store official election

records. 35 On the front of each of the election judges' JBC Report Envelopes (where polling

location election records are stored and returned), were the instructions, "DO NOT PRINT THE

TALLY." 36

50. In addition, in Travis County Clerk, Dana DeBeauvoir's deposition (Exhibit D, p. 128, 13-

15), she confirms election judges were instructed to not print the Tally/Results tapes that the Texas

33 Exhibit T, Texas Secretary of State Waiver for General Election, Nov. 4th 2015. 34 Exhibit C, JBC Envelope contents produced by Travis County showing the District 4 polling locations election materials- no Results/Tally Tapes were printed or signed by election judges at those locations. 35 Exhibit C, JBC Envelope contents produced by Travis County showing the District 4 polling locations election materials- no Results/Tally Tapes were printed or signed by election judges at those locations. 36 Exhibit C, JBC Report Envelope contents produced by Travis County showing the District 4 polling locations election materials- no Results/Tally Tapes were printed or signed by election judges at those locations. On the cover of the JBC Report Envelope, instructions to election officers clearly state, "DO NOT PRINT THE TALLY."

Pressley 61h Amended Election Contest p.l5 874 Secretary of State requires.

51. Without Results/Tally Tape Reports, there is no proof of the vote totals each candidate

received during the election, prior to the election materials (eSlates, JBC' s and MBB' s) being

transferred to Central Counting for electronic tabulation.

52. The Results/Tally Tapes are an essential backup election record of the vote and they help

ensure the electronically cast 3,937 votes results are consistent with subsequent Central Counting

computer tabulation results. A critical election security protocol for retaining key election records

was ignored by Travis County and thus invalidates the results for the (3,937) electronically cast

ballots for the District 4 race because there is no proof that the JBC had no votes cast on it

erroneously for the Runoff or that there were computer corruption issues at Central Counting that

skewed the true will of the voters in the Runoff.

53. The lack of retention of the Results/Tally tape further highlight the fact the Runoff results

are erroneous, cannot be trusted due to corruption errors, and cannot be validated with retained

election records, and so many security protocols were violated. These irregularities have caused

the true outcome, of the 3,937 electronically cast votes in the Runoff, to not be known.

4.Contestant's Official Poll Watchers Were Denied Access on Election Night- Four Counts

of Criminal Violations Committed by Travis County Election Officer

54. Two of Contestant's Official Poll Watchers were denied access to and were prevented from

signing Results/Tally Tapes. Rae Nadler-Olenick and Paul Williams were official poll watchers

for the Pressley Campaign and they were enied access to Results/Tally Tapes on December 16,

2014 at polling location Randalls at Braker/Research Hwy 183 and Gus Garcia Recreation Center,

respectively.

Pressley 61h Amended Election Contest p.l6 875 55. Both Mrs. Nadler-Olenick and Mr. Williams were present and observed that official

Poll/Tally tapes were not printed when the polls were closed at their respective polling locations.

They were both present and observed that Results/Tally tapes were not printed before the election

materials and equipment was removed from their respective polling locations.

They were both prevented from signing the official Results/Tally tapes because the election

officials at Randalls were instructed to not print the Results/Tally tapes 37 and they, intum, did not

print them. 38 See affidavit of official poll watcher, Paul Williams, Exhibit U. 39

56. The Travis County officers violations materially affected the outcome of the election

because there is no way to verify the voting equipment and vote results (MBB, eSlate, and JBC)

were s not corrupted or modified after leaving the polling location. We know for a fact from

multiple Travis County election officer affidavits that many security seals on the election

equipment were improperly sealed, seals were removed, and resealed because of security issues. 40

Two additional Pressley Official Poll Watchers were denied access to view election activities at

the Dobie Middle School election substation and the Travis County Central Counting facility on

Election Day after the polls closed.

57. Sergio Martinez and Claire Martinez were also Official Campaign Poll Watchers for

Contestant. Sergio and Claire Martinez were initially denied access to Dobie Middle School,

Substation on December 16, 2014 and were not able to monitor and track the first set of election

materials being transferred from the countywide polling location at Gus Garcia Recreation Center

37 Exhibit C, JBC Report Envelope contents produced by Travis County showing the District 4 polling locations election materials- no Results/Tally Tapes were printed or signed by election judges at those locations. On the cover of the JBC Report Envelope, instructions to election officers clearly state, "DO NOT PRINT THE TALLY." 38 Exhibit C, JBC Envelope contents produced by Travis County showing the District 4 polling locations election materials- no Results/Tally Tapes were printed or signed by election judges at those locations. 39 Exhibit U, Affidavit of Official Poll Watcher, Paul Williams. 40 Exhibit E, Affidavits from Runoff election officers documenting security seals are improperly sealed, removed and resealed.

Pressley 61h Amended Election Contest p.l7 876 to the Dobie Substation. This was one of the strongest Pressley precincts and voting locations in

District 4 and they intended to track the MBB chain of custody and transfer procedures.

58. Election materials entered and left the Dobie Substation and Mr. and Mrs. Martinez were

not able to monitor the chain of custody and transfer status of election materials (MBB's, etc.)

from the various polling locations. This affected the outcome of the Runoff election in that errors

in tabulating votes and maintaining security protocols occurred at Central Counting.

59. Also, Sergio and Claire Martinez were subsequently denied access in monitoring the

transfer of election materials (including but not limited to Mobile Ballot Boxes, sealed JBC and

eSlate computers, official envelopes with materials, and the like) and were prevented from

monitoring the tabulation activities occurring at Central Counting on Election night on December

60. On Election night, Contestant made numerous personal phone calls to the Travis County

Director of Elections, Michael Winn, informing him of that Mr. and Mrs. Martinez were

repeatedly being denied direct access to election and tabulation activities at Central Counting and

Mr. Winn did not correct the situation after multiple conversations.

61. Obstructing an official poll watcher is a Class A misdemeanor in the Texas Election Code

33.061:

Sec. 33.061. UNLAWFULLY OBSTRUCTING WATCHER. (a) A person commits an offense if the person serves in an official capacity at a location at which the presence of watchers is authorized and knowingly prevents a watcher from observing an activity the watcher is entitled to observe. (b) An offense under this section is a Class A misdemeanor. Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

62. Multiple "activities the watcher is entitled to observe" were violate by Travis County

election officers as it relates to Pressley's official watchers:

a. Pressley poll watchers Paul Williams and Rae Nadler-Olenick were prevented from

Pressley 61h Amended Election Contest p.l8 877 observing the printing and signing of Result tapes at the respective polling locations

they were serving on Election Day, and

b. Pressley poll watchers Sergio and Claire Martinez were prevented from accessing

and observing election materials transfer at Dobie Middle School and election

material transfer/election tabulation activities at Central Counting, respectively, on

Election Day.

63. Multiple election irregularities occurred at Central Counting on Election Day and

Pressley's poll watchers were denied access to monitor and report the issues. These election

irregularities are the most concerning and egregious out of all the irregularities which occurred

during the Runoff election. These are very serious Class A misdemeanors, criminal violations, of

the Texas Election Code 33.061 and Contestant has documented violations of four separate counts.

64. These violations materially affected the outcome of the election in that an inordinate

number of election irregularities occurred and there was a lack of accountability of election

officers with regard to no printing of Zero Tapes, no printing of Results Tapes, denying office poll

watchers access to election activities, improperly sealed electronic devices, security breaches of

the Tally vote tabulation system, corrupt Mobile Ballot Box entries, and Tally Audit log deletions.

The intent of the poll watchers is to ensure accountability, transparency, and secure practices are

adhered to. Because of the erroneous reported election results, the egregious election

irregularities, and the missing election records, the outcome of the Runoff cannot be known.

5.Audit Logs at Central Counting Show Missing Logs, Security Issues and Corrupt Files Loaded

65. Hart Voting System Audit Logs show multiple problems

Pressley 61h Amended Election Contest p.l9 878 a. Tally Audit log and Ballot Now entries missing (Exhibit B, V, 41 W42 )

b. Security issues (Exhibit B, E)

c. MBB processing errors during vote tabulations at Central Counting on Election

Day, December 16,2014, and (Exhibit B)

d. questionable entries into the Tally and security systems after Contestant filed her

Election Contest, etc. (Exhibit B).

66. Numerous software/hardware errors occurred when Travis County electronically

transferred and tabulated the electronic Cast Vote Records. There are nine "Invalid/Corrupt

MBB" errors recorded in the Tally Audit logs during Election Day tabulations of votes. These are

errors associated with tabulating the electronic votes from the Mobile Ballot Boxes (Exhibit B

pages 5, 22, 23, 26, 27, 29 and 42). According to the Travis County Clerk, Dana DeBeauvoir, the

Tally Audit logs are legally required and she describes the information the logs contain:

"In general, they're going to track every single step, everything that's happening at the

counting station on election night.·· So every time something's turned on, every time

something's turned off, every time an entry happens." (Exhibit D, DeBeauvoir's Deposition,

p. 72 ,19-23)

67. The audit logs in the Tally (Exhibit B) and Ballot Now subsystems (Exhibit V and W)

show long periods of apparent inactivity between an administrator's last recorded action and a

session logout. They range from two hours to days long (see summary table, below).

41 Exhibit V, Security audit logs for BN PC5system 42 Exhibit V, Security audit logs for BN PC3 system

Pressley 61h Amended Election Contest p.20 879 Time System Time Frame System Was Open and Date of logOut Travis County audit logs Was Open Vulnerable 12/1/2014 Ballot Now (BNPC3) 10 days Early Voting 12/2/2014 Ballot Now (BNPC5) 7 days Early Voting 12/10/2014 Ballot Now (BNPC3) 9 days Early Voting 12/11/2014 Ballot Now (BNPC3) 1 day Early Voting 12/12/2014 Ballot Now (BNPC3) 1day Early Voting 12/15/2014 Ballot Now (BNPC3) 3 days Early Voting 12/16/2014 Tally 2 hrs, 44 min Election Day Tabulations 12/16/2014 Ballot Now (BNPC3) 1 day Election Day Tabulations 12/18/2014 Ballot Now (BNPC5) 8 days Election Day Tabulations 1/6/2015 Tally 4 hours Recount

68. During these extended logon times, anyone with physical access to the computer could

use the administrator account to arbitrarily change vote information in the database then directly

edit the log files to hide the fact (ExhibitS, Dr. Jacobson's affidavit). This would require no more

skill than reading the Tally manual and using legal administrator commands. There are unusually

long periods of apparent inactivity during a crucially important logged-in Tally administration

session during Election Day when vote tabulations were underway from !2:30pm thru 3:24pm

(Exhibit B).

69. When not in use, the Tally system should be logged off to protect the security of the vote

tabulation database. Having the system open is a critical security breach. The Tally system vote

tabulation database was left open and security was compromised or there are activity files missing.

Either way, the integrity of the electronic vote tabulation cannot be trusted. Thus, the outcome

cannot be known to be true. Every vote counted electronically cast and counted (3,937) cannot be

known and exceed the margin of victory. The Court cannot determine the will of the votes and a

new election is required.

70. When asked about other extended time periods where the Tally administrator was logged

on and no activity was documented for roughly 7 days (Exhibit B) DeBeauvoir (Exhibit D,

Pressley 61h Amended Election Contest p.21 880 deposition) stated, "I don't know what this means .. .I don't believe that's true .. .I doubt it's true .. .I

doubt it's true ... [the log is wrong?] yeah .. .I don't think that's true ... I don't know ... " (Exhibit M,

Dana's Deposition p. 114, line 16 thru p. 117, p. 3).

71. In effect, the Travis County Clerk under oath when asked about the Tally Audit logs and

the issues, she stated, "I don't think that's [Audit logs] true." Because the voting tabulation

system was left open and security was compromised or there are log files missing, the integrity of

the vote tabulation cannot be trusted. Thus, the outcome of the electronically tabulated votes

cannot be known to be true.

72. Tally Audit Logs show multiple error codes being registered during the loading ofMBB's

during vote tabulations at Central Counting 43 . With no Results/Tally Tape Reports from the

polling locations (Exhibit C), there is no data to validate the results of the tabulation of the

electronically cast ballots and, thus, the results for the (3,937) electronically cast ballots for the

District 4 race and the outcome cannot be known.

73. In this election, the Tally Audit log produced by Travis County shows no less than nine (9)

instances of a corrupted Mobile Ballot Box being introduced into the Travis County election Tally

system (Exhibit B). These documented, admitted nine (9) separate instances of corrupted data being

introduced into the election count system make it impossible to determine the true outcome of the

election. 44

74. This is an extraordinary level of corrupt mobile ballot boxes (MBBs), showing something

was wrong with the system that tallied the votes, according to the Travis County Clerk. From her

deposition (Exhibit D, page 98, lines 18-20; page 99 lines 4 -9):

43 Exhibit B, Tally Audit Logs 44 See ExhibitS, Declaration of expert witness Jeffrey Jacobson, Ph.D; See also Attachment B thereto, Audit Log produced by Travis County; See also Exhibit D, Deposition of Dana DeBeauvoir, p. 87, 94, 96, 97, and 98, and Tally Audit Log, Exhibit 12 to Exhibit M (authenticated at page 55-56.)

Pressley 61h Amended Election Contest p.22 881 Q. [I]t's a little unusual to have so many invalid MBBs in an election tally, isn't it? A.· ·I've never heard of so many -

A. I suspect there's something wrong with the reader, not the MBBs. Q. (BY MR. COHEN) Okay. So you think-- your suspicion is that there was something wrong with the reader that night? A. Correct.

75. There were more invalid/corrupt ballot boxes in a single election than Dana DeBeauvoir had

ever heard of. DeBeauvoir is a person of extraordinary experience and knowledge in elections. She

has been Travis County Clerk for 28 years, overseeing elections in all that time, including every

election since 2002 using the Hart eSlate system. And she has NEVER HEARD OF as many invalid

MBBs in an election tally as there were in this election. The Travis County Clerk herself conceded

that something was very wrong with the system tallying the votes -- that there was a degree of error

in that election beyond anything she had ever heard of happening before.

76. And, according to her deposition testimony (Exhibit D), she has no idea why. From her

deposition, page 95, lines 6-10:

Q. · ·I haven't seen anywhere in this audit log what-- where it tells you what it did when it found a corrupt MBB. .. Do you -- is that ... A.· ·Yeah.· ·There would be other documentation that will tell you what happened.·· I can't tell you.

77. From her deposition, page 96, lines 22-25:

·Q.· ·(BY MR. COHEN)· ·Again, on page 23, if you go down by 8:42, there's another "Invalid/Corrupt MBB," and we still don't know what happened to that MBB. A.· ·Same thing.

78. From her deposition, page 97, lines 1-8:

Q. · ·Okay.· ·And then there's another one a little further down, again.· ·And then there-- it says "MBB already read by Tally."· ·Do you see that?· ·There's three of those in a row. A.· ·Uh-huh. · ·Uh-huh. Q. · ·Do you have any idea what that-- what happened as a result of that?

Pressley 61h Amended Election Contest p.23 882 A.· ·I'm sorry.· ·I don't.

According to expert, Dr. Jefferey Jacobson, Ph.D.(Exhibit S p. 1-2), "Properly created MBB(s)

may have contained legitimate votes, but some event made it/them unreadable or corrupted ...

Alternatively, a third party may 'Introduce corrupt MBBs into the legitimate flow ofMBBs from the

precincts back to Election Central' (California report, page 48, paragraph 1). 45 This could damage

the credibility of the vote counting process."

79. Corrupt MBBs, whether deliberately tampered with or accidentally introduced into the

system, will either result in a failure to count actual votes, or in the counting of invalid votes, or in

other corruption of the system.

80. In any event, nine (9) separate introductions of corrupted mobile ballot boxes into a system

designed to tally votes is sufficient to undermine the reliability of the purported outcome.

81. The numerous irregularities (mathematical anomalies, failure to keep ballot images, failure to

print and keep Tally/Results tapes, numerous Invalid/Corrupt Mobile Ballot Box errors, Mobile

Ballot Box reader malfunction, deleted Tally Audit log data, and security breaches of the Tally

system, shutting down polling locations) all render impossible a determination of the true outcome

of the 3,93 7 electronically cast votes in the Runoff election.

6.Travis County Conducted Critical Recount Activities from January 4, 2015 through January 6,

2015 at 10:59am, before the Official Recount on January 6, 2015 at 11 :OOam.

82. The discussion of the problems and illegalities arising in the "recount" are relevant to the

45 Exhibit A, Attachment 5, California Report: Inguva, S., Rescorla, E., Shacham, H., & Wallach, D. S. (2007). Source code review of the Hart InterCivic voting system. University of California, Berkeley under contract to the California Secretary of State. https://www.sos.ca.gov/voting-systems/oversight/ttbr/Hart-source-public.pdf California2007.pdf, Attachment 5 to Jacobson Declaration. This report is an official California government record, obtained through an official California government website, and is admissible as an exception to the hearsay rule under Texas Rule of Evidence 803(8) (c) (new number 803 (8)(A)(iii), effective Aprill, 2015.), and TRE 902 (5).

Pressley 61h Amended Election Contest p.24 883 election contest because the issues that appeared for the first time in the recount pointed to errors in

the conduct of the election. Specifically, the inability of Travis County to produce "images of

ballots cast" at the recount, in violation Texas Election Code§ 213.016led to the discovery that the

machines, as configured by Travis County for the December run-off election, violated Texas

Election Code§ 128.001(a)(2). The discovery that Travis County, in operating the December run-

off election, did not "provide for the use of a computerized voting system with ... (2) a main

computer to coordinate ballot presentation, vote selection, ballot image storage, and result

tabulation" is conclusive evidence of illegality in the election.

83. One of the items the tribunal in an election contest is charges with determining is if "the

outcome of the contested election, as shown by the final canvass, is not the true outcome because: ...

an election officer or other person officially involved in the administration of the election: ...

engaged in other fraud or illegal conduct or made a mistake." TEX. ELEC. CODE§ 221.003.

84. Failing to print the legally required "images of ballots cast" for the election recount is a

violation of Texas Election Code§ 213.016 by itself. But it also led proximately to the discovery of

additional illegality.

85. Moreover, the discovery of those two illegalities undermine both the possibility of an

accurate count or an accurate recount, as "images of ballots cast" are a prerequisite to a recount, and

the counting of actual ballots is the nature of a count.

86. The errors and illegalities at the "recount" also led to the discovery in the audit logs of

multiple corrupt mobile ballot boxes and other errors in the conduct of the election, some of which

were testified to by the County Clerk.

87. Unofficial recount activities were completed on January 4 - 6. This was prior to the

official Recount Start Notice (January 6, 2015 at 11:Oam) and as a result, Pressley and her official

Pressley 61h Amended Election Contest p.25 884 watchers were not aware of and not allowed to monitor the unofficial recount activities that

occurred prior.

88. On January 4 - January 5, 2015, prior to the start of the Official Recount on January 6,

2015, Travis County Clerk and the Election Division officers conducted unofficial recount

activities in which they:

a. gained access to the sealed and archived voting records for the District 4 Austin

City Council Runoff Election on December 16, 2014, (Exhibit B)

b. Electronically extracted the District 4 voting records in the form of Cast Vote

Records, (Exhibit B),

c. copied and compiled the official District 4, Cast Vote Records into a single pdf

report, (Exhibit X) 46

d. printed roughly 4,000 Cast Vote Records for the District 4 race,

e. convened members of the Recount Committee whose roles were to recount votes

(Exhibit Y) 47

f. conducted unofficial Recount activities that lasted 4-6 hours 48 .

89. A Travis County employee, a member of the recount committee, who was present at the

Official Recount on January 6th, relayed to one Pressley's recount watchers, on January 6, 2015,

"They started all this on Sunday [January 4, 2015]."

90. Direct evidence of unofficial recount activities are shown in the Audit logs of Travis

County's Hart Tally and SERVO systems (Exhibit B). These various audit logs document access,

extraction, compilation, and printing of reports of the official District 4 Cast Vote Records and

46 Exhibit X, Early Vote CVR in one file, used to print CVR, produced by Travis County 47 Exhibit Y, Recount Invoice from Travis County 48 Exhibit Y, Recount Invoice from Travis County

Pressley 61h Amended Election Contest p.26 885 data on January 4th (2:18pm), January 5th (2:18pm), and January 6th (8:24am)-all prior to the start

time of the Official Recount on January 6, 2015 at 11 :OOam.

91. Contestant and her Official Vvatchers attended the Official Recount which started at 11:00

am and individuals tasked with counting votes were dismissed around 4:30pm (roughly after 5.5

hours). Additional evidence for unofficial recount activities are shown in the invoice (Exhibit Y)

of the Recount charges which was provided to Contestant by Travis County after the Official

Recount. The invoice documents Recount Committee members such as individuals who were

temporary employees and who counted votes. In many cases, individuals counting votes were

documented as working over 9 hours performing vote recounting activities.

92. This Travis County Recount invoice documents Recount Committee members counting

votes, spent roughly twice the hours (Exhibit Y) required to complete the Official Recount and

Contestant's Official Watchers were not allowed to monitor those prior recount activities.

93. In addition, at the Official Recount, Contestant requested to view the source and properties

of the CVR files, such as dates of the CVR files and origination, and was denied by the Recount

Committee Member, the Travis County Director of Elections, Michael Winn.

94. Obstructing an Official Watcher is a criminal offense and materially affected the outcome

of the Recount. Contestant and her Official Poll Watchers were denied access and were not

allowed to monitor the critical recount activities such as vote retrieval and counting (Exhibit Y).

95. Most importantly, Contestant and her official Recount Watchers were not allowed to

monitor the integrity of where the Cast Vote Records were retrieved (Exhibit B), the source where

the retrieval occurred, or the copying of the Cast Vote Record files to an aggregated pdf file. The

Recount pdf file obtained from Travis County during Production, is an electronic file and was

created on January 6 approximately at 10:00 am was used to print, and was used to count votes in

Pressley 61h Amended Election Contest p.27 886 the Recount.

96. Denying Contestant her rightful access to monitor Recount activities and determine that

illegal votes (in the form of duplicate copies of CVR's) were printed and counted, materially

affected the outcome of the Recount. Counting copies of 3,937 CVR's do not meet the statutory

requirements for counting legal votes. The only legal votes produced at the Recount were the Mail

in Ballots which were counted and tabulated to result in an exact tie of 240 votes for Pressley and

240 votes for Casar (Exhibit A).

7. Illegal Votes Counted-Statutory Ballots, Ballot Images and Images of Ballots Cast Were not

Retained, Produced or Counted at Official Recount

97. On Tuesday, January 6, 2015, at 11:00 a.m. when the recount was to begin, the Travis

County Clerk and the Recount Committee relayed to Contestant and her official recount watcher,

Karen Renick that images of ballots cast on the Hart Electronic Voting System (eSlate) were not

available, would not be printed, and would not be recounted. 49

98. At that meeting, Dr. Pressley expressly stated, in her "Petition Requesting a Recount," and

"Amended Petition Requesting a Recount" that "[w ]e are requesting a manual recount of the

results using the actual, stored, ballot images." (See Appendix 11.) Pressley also expressly

requested "a manual (by-hand) count." "[T]he election code expressly provides for the 'printing

of images of ballots cast using direct recording electronic voting machines for the purpose of a

manual recount.' See id. § 213.016." Andrade v. NAACP of Austin, 287 S.W.3d 240, 258 (Tex.

App. Austin 2009), rev'd on other grounds by Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex.

2011).

99. Travis County's failure to print and count 3,937 images of ballots cast, for the District 4

49 Exhibit Z, Affidavit of Karen Renick.

Pressley 61h Amended Election Contest p.28 887 Austin City Council Election on December 16, 2014 on the Hart eSlate Electronic Voting System,

violates this provision of the election code and materially affected the outcome of the election

because 3,937 illegal cast votes were counted.

100. Printing the CVR data files was in essence reprinting the previous electronically counted

results obtained on Election night. A CVR is a printing of a data file to a template. A template

that does not meet the statutory requirements for a "ballot" or an image of a "ballot" and as such it

is not a meaningful check on the original count. 50

101. The recount failed to only count legal votes because "images of ballots cast" were not

50 Secretary of State is somewhat unclear on this issue. Travis County's production of a "cast vote record" is a subset of the information on an Official Ballot. Therefore, an "image of ballots cast," if a true image, is an exact replica of a ballot cast. The 2014 Electronic Voting System Procedures bulletin, posted online at http://wVvw.sos.state.tx.us/elections/laws/clectronic-voting-system- procedures.shtml, the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8- Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEC § 214.071): 1. The candidate requesting a recount may request that the recount be done electronically or manually. 2. For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 3. For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue. a. The Recount Coordinator shall notify the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. b. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. c. If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. d. A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records.

Pressley 61h Amended Election Contest p.29 888 provided and counted. Using the 3,937 CVR's instead of ballot image violates Texas Election

Code 214.049 (e): "If electronic voting system ballots are to be recounted manually, the original

ballot, rather than the duplicate of the original ballot, shall be counted." Ballots are defined in

Texas Election Code Chapter 52, Subchapter C. 5 1

Cast Vote Records are not legal Ballots, Ballot Images or Images of Ballots Cast

102. The most material fact in this lawsuit and is at a minimum hotly contested. Contestee relies

on post-hoc letters and instructions from agencies with a bureaucratic bias to argue that a cast vote

record satisfies the statutory and constitutional requirements that an image of a ballot cast be kept to

verify the computers tabulation of what the actual ballot the voter sees when the selecting a

candidate. Contestant relies on the factual difference between the ballot used and the cast vote

record, expert testimony relying on reports and government statements and the statutes and laws of

the State of Texas to contend that a cast vote record does not comply with the law's requirement to

maintain images of the ballots cast. The resolution of this issue is very material to the decision in

this case because if a cast vote record is not a ballot or an image of a ballot there were no votes in

the election that can be counted other than the Absentee/Mail in Ballots.

1. Definitions of "Ballot Image"

51 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name."

(e) A square shall be printed to the left of each line provided for write-in voting under Section 52.066(c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.)

Pressley 61h Amended Election Contest p.30 889 103. The Texas Secretary of State defines "Ballot image" without reference to a notion of "Cast

Vote Records." 52 Per the Secretary of State's Glossary of Election Terminonolgy (Exhibit AA, p.

2): "Ballot Image: The ballot as it appears on a direct recording electronic (DRE) voting system. A

ballot image is self-evidently therefore not a Cast Vote Record.

104. The phrase "Cast Vote Record" does not appear in the Exhibit 0, Texas Secretary of State's

Glossary of Election Terminology. !d.

105. The Federal government also defines "Ballot image" without reference to the notion of

"Cast Vote Record." In 1990, the Federal Election Commission's Performance and Testing Standard

for Punchcard, Marksense, and Direct Recording Electronic Voting Systems (DRE) 53 (Exhibit K, p.

48, paragraph 1) reported:

To attain a measure of integrity over the process, DRE systems must also maintain images of each ballot that is cast, such that records of individual ballots are maintained by a subsystem independent and distinct from the main vote detection, diagnostic, processing and reporting path.

106. Therefore, a Cast Vote Record (CVR) is not an image of"each ballot that is cast."

107. To the extent the 1990 FEC report discusses what would later be known by others as "Cast

Vote Records," the FEC distinguishes these data files from ballot images, saying there should be two

pathways for vote records in DRE's: a) images of ballots cast capability, and b) vote detection,

processing and reporting path for vote data. The CVR is a reporting path/subsystem for reporting

voete results to the Tally system and a ballot image is an image file that is independent from a data

reporting path (See Exhibit K). Therefore a Cast Vote Record is not an image file of a ballot.

108. In 2002, The Federal Elections Commission's 2002 Voting System's Standards, Volume 1,

52 See Attached Exhibit AA, Texas Secretary of State's Glossary of Election Terminology, http://www. sos. state. tx. us/elections/laws/glossary. shtml. 53 See Exhibit K the Federal Election Commission's 1990 Performance and Testing Standard for Punchcard, Marksense, and Direct Recording Electronic Voting Systems.

Pressley 61h Amended Election Contest p.31 890 Performance Standards 54 (Exhibit L) reinforced and upheld these 1990 requirements for DRE's to

maintain two pathways independent from each other so that vote data is stored and ballot images are

preserved (p. 31-Section 2.2.4.2, p. 60-Section 3.2.lb(2), and page 135-Section 9.5.1.2.a).

Therefore, a Cast Vote Record is not an image of a ballot.

109. In addition, Contestee never proves that the Cast Vote Record electronic file or paper copy

produced by Travis County is an image file, is a replica of anything a voter sees when they are

voting, or that it meets the legal standards of an Official ballot. The Cast Vote Record that Travis

County has produced is not produced from an official ballot, is not produced from an image of an

official ballot, or produced from anything a voter saw or experienced when casting their electronic

vote. Therefore, a Cast Vote Record is not a ballot image.

110. Perhaps most decisively, the Hart Intercivic manuals themselves concede that a CVR is not

a ballot image. Hart's own Ballot Now Operations Manual documentation 55 provided to Travis

County states that the eScan subsystem scans each paper ballot to create an exact digital image of

the ballot cast. The eScan creates and stores a ballot image (a bitmap, .bmp file) and then reads the

data to make a Cast Vote Record (Ballot Now manual, Exhibit AB, page 24 and 259-260). In this

way, the Travis County's Hart manual clearly refers to the CVR (a data structure used to transfer

data for tabulation in Tally) and the ballot image (bitmap, .bmp file) as two technically different

things. Therfore, a Cast Vote Record is not an image of a ballot.

1. A Cast Vote Record is not the same as a Ballot Image

111. Paragraph 22-29, above, decisively establish that the Texas Secretary of State, the Federal

Election Commission and Hart InterCivic all define "ballot image" and "Cast Vote Record" as

54 See Exhibit L Elections Commission's 2002 Voting System's Standards, Volume 1, Performance Standards. 55 Exhibit AB, Ballot Now Manual produced by Travis County.

Pressley 61h Amended Election Contest p.32 891 distinctly different. 56 This, at a minimum, creates a fact issue as to whether a Cast Vote Record is an

image ofballot cast that is required by law to preserved and counted in recount and contest.

112. Additionally, the following Texas statutes show that the Legislature intended the word

"ballot image" to have a specific meaning that is different from the meaning asserted for "Cast Vote

Record."

113. The Texas Election Code, Sec. 128.00l(a)(2), reqmres that "The secretary of state shall

prescribe procedures to allow for the use of a computerized voting system. The procedures must

provide for the use of a computerized voting system with ... (2) a main computer to coordinate

ballot presentation, vote selection, ballot image storage, and result tabulation." The language of the . man d atory. 57 statute 1s

114. Thus, the statute requires any Travis County electronic voting system have all of those four

components: a main computer to coordinate a) ballot presentation, b) vote selection, c) ballot image

storage, and 4) result tabulation.

115. Importantly, this section of the Code was enacted in 1997, before the word "Cast Vote

Record" appears in any Federal Election Commission and Texas Secretary of State records, and

before such a term could have acquired any "technical or particular meaning." The words must

therefore be construed as required under the Code Construction Act "Sec. 311.011. COMMON

56 Exhibit AC, additionally, Casar misrepresents the definitions of Cast Vote Record and ballot image in the 2007 Election Assistance Commission Spanish-English Glossary of Key Election Terminology by omitting relevant pages in Exhibit AC. Those relevant pages are attached, however in Exhibit 6 to Exhibit 24 of the Amended MSJ, and provide the false notion that the EAC defines "ballot image" and "Cast Vote Record" as synonymous. The relevant pages are found in Exhibit AC, p. 15, 16,and 19. 57 Texas Government Code (Code Construction Act) governs the use of the word.

Sec. 311.016. "MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute: ( 1) "May" creates discretionary authority or grants permission or a power. (2) "Shall" imposes a duty. (3) "Must" creates or recognizes a condition precedent.

Pressley 61h Amended Election Contest p.33 892 AND TECHNICAL USAGE OF WORDS. (a) Words and phrases shall be read in context and

construed according to the rules of grammar and common usage." (emphasis added.)

See Acts 1997, 75th Leg., ch. 1349, Sec. 50, eff. Sept. 1, 1997.

116. While Contestee mocks Pressley's use of the common usage of the word "image" as a

"picture," that is plainly the meaning contemplated by the Legislature in enacting the statute in 1997.

A "Cast Vote Record" is nothing more than "result tabulation" referenced by the 1990 Federal

Election Commission and contemplated by the 1997 statute. 58

117. This interpretation is subsequently supported by the 2002 Federal Election Commission

report (Exhibit L) and the Texas Secretary of State Glossary of Election Terms (Exhibit AA,

http://www. sos. state. tx. us/elections/laws/ glossary. shtml, last visited March 15, 2015, 11 :36 a.m.)

defines as follows: "Ballot Image: The ballot as it appears on a direct recording electronic (DRE)

voting system." No definition of "Cast Vote Record" appears in the Secretary of State's Glossary of

Election Terms.

118. A genuine issue of material fact exists as to the central issue in this case: whether all four

components were provided in the conduct of the Runoff election in order to determine the victor in

the runoff. Plaintiffs assert the "Cast Vote Record" used in the Travis County Runoff election is not

an "image of a ballot cast." A side-by-side comparison of a Hart "ballot image" and "cast vote

record" shows that the two are not the same.

119. The Cast Vote Record shown below (Exhibit AD) is authenticated in Exhibit D, Deposition

of Dana DeBeauvoir, Exhibit 10, p. 42 lines 18-21.

58 Alternatively, a CVR could also be described using the language of the FEC report, as a vote data storage pathway - essentially synonymous with "results tabulation."

Pressley 61h Amended Election Contest p.34 893 "Cast Vote Record" "Ballot !mage' from Hart lnterCivic Ballot Now Manual Produced by Travis Count<{ Produced by Travis County

!MIJ&JJif)!f

ao .. ;;; . tl©..

"*""! '•·

120.

121. The "ballot image" shown above from the Hart Intercivic Ballot Now Manual 1s from

ExhibitAB.

122. Further, a comparison of an example of an "image of ballot cast" (from the Hart Manual) and

a Travis County Runoff Absentee/Mail-in-Ballot (Exhibit AE) shows that the two are as nearly

identical to each other. They are clearly very different from the Travis County Runoff Cast Vote

Record.

Pressley 61h Amended Election Contest p.35 894 "8aHot !mage" from Hart !nterC!vic Ballot Now Manual Adua! Ballot by Mail Produced by Travis County Produced by Travis Count',' ''4"'

123. The Absentee/Mail-in Ballot results are attached as Exhibit A, and are authenticated in the

Deposition of Dana DeBeauvoir (Exhibit D), p. 44-46 p 58, line 10- p 59, line 9.

124. The Absentee/Mail-in Ballot is attached as Exhibit AE, and is authenticated m the

Deposition of Dana DeBeauvoir (Exhibit D), p. 45, lines 13-21.

125. The Cast Vote Record is attached as Exhibit AD, and is authenticated in the Deposition of

Dana DeBeauvoir (Exhibit D), p. 42, lines 20-21.

A CVR is not a "Ballot Image" as a matter of information technology

126. A CVR is not a Ballot "Image" as a matter of information technology and computer science.

As reported by expert, Dr. Jeffrey Jacobson, Ph.D., in ExhibitS, p. 2, "[According to] the

Pressley 61h Amended Election Contest p.36 895 California Report 59 , a Cast Vote Record is typically not more than 100 bytes of digital information.

Image files are far larger than a Cast Vote Record. Image files contain digital information that is not

present in a Cast Vote Record. A CVR is nothing more than a simple data record."

CVR is not a "Ballot Image" as a matter of law.

127. A ballot image, as a matter of plain language, requires a "Ballot" and an "image."

128. A Cast Vote Record is not an electronic system Ballot as defined under Tex. Elec. Code §

124.063:

Sec. 124.063. INSTRUCTIONS REQUIRED ON BALLOT. (a) An electronic system ballot on which a voter indicates a vote by making a mark on the ballot must contain the following instruction if candidates are to be voted on: "Vote for the candidate of your choice in each race by making a mark in the space provided adjacent to the name of that candidate." If a proposition appears on the ballot, the ballot must contain the following instruction: "Make a mark in the space provided beside the statement indicating the way you desire to vote."

129. The Cast Vote Record, ExhibitS, does not include the mandated instructions.

130. A CVR is not a Ballot as defined under Exhibit A, Attachment 7, the Federal Election

Commission Performance and Test Standards, 1990, which was the most current federal guidelines

in 1997, when the first Texas statute using the term, Texas Election Code§ 128.00l(a), was enacted.

131. A Cast Vote Record is not a Ballot as defined under Tex. Elec. Code Chapter 52.

132. A Cast Vote Record is not a Ballot as defined under Tex. Constitution, Art. 6, Sec. 4.

133. The tribunal cannot ascertain the true outcome because the only actual ballots - the

Absentee/Mail-in Ballots- are exactly tied, 60 and no other ballots were legally cast, or recorded and

59 Exhibit P, California Report: Inguva, S., Rescorla, E., Shacham, H., & Wallach, D. S. (2007). Source code review ofthe Hart InterCivic voting system. University of California, Berkeley under contract to the California Secretary of State. https://vvww.sos.ca.gov/voting-systems/oversight/ttbr/Hart-source-public.pdf California2007.pdf, Attachment 5 to Jacobson Declaration. This report is an official California government record, obtained through an official California government website, and is admissible as an exception to the hearsay rule under Texas Rule of Evidence 803(8) (c) (new number 803 (8)(A)(iii), effective April1, 2015.), and TRE 902 (5). 60 See Attached Exhibit A, (authenticated by Deposition of Dana DeBeauvoir, Exhibit D, p. 58, Line 10- p. 59, Line 9, and attached Exhibit 13.)

Pressley 61h Amended Election Contest p.37 896 counted.

134. Travis County admits that its system can only produce the easily-falsifiable Cast Vote

Records, not the more secure images of ballot cast required under the Texas Election Code

(128.001a(2), 213.016).

135. During the recount, for the first time, it became apparent that Travis County had this illegal

defect in its procedures when Travis County only produced Cast Vote Records, and the election

recount supervisor stated that Travis County was incapable ofprinting images ofballots cast. 61

136. Because no ballot images were ever preserved, it is impossible for Travis County to produce

and count the ballots, as required under the Tex. Constitution, Art. 6, Sec. 4, and Texas Election

Code (213.016, 214.049(e)).

13 7. Because no ballot images were ever preserved, it is impossible for Travis County to conduct

a lawful recount the ballots, as required under the Texas Election Code (213.016, 214.049(e))

138. The ballot images must be preserved under the Texas Election Code. Failure to preserve

ballot images means that essential election records are missing. Such missing records make it

impossible for the tribunal to determine the outcome. In the event of such missing records, 62 an

order to void the result and order a new election is appropriate. Garcia v. Avila, 597 S.W.2d 400,

405 (Tex. Civ. App.-San Antonio 1980, writ dism'd).

139. Additionally, the evidence produced by Travis County shows that mistakes were made that

make it impossible for the tribunal to know the true outcome of the election.

Arguments and Authorities

61 Attached Exhibit Z, Affidavit of Karen Renick, p.2 62 DeBeauvoir confirmed that the election Tally system audit log is also missing data during Early Voting (Exhibit D, Deposition of Dana DeBeauvoir, p.76, line 7-15). In addition, DeBeauvoir confirmed that Travis County is also missing the Results/Tally Tapes required by the Secretary of State. The SOS requires Results/Tally Tapes be printed when closing the polls. When DeBeavoir was asked if the Runoff poll judges were told to not print Results/Tally tapes directly after the closing of the polls, her response was "correct." (Exhibit M, Deposition of Dana DeBeauvoir, p. 128, line 15).

Pressley 61h Amended Election Contest p.38 897 140. "The tribunal shall declare the election void if it cannot ascertain the true outcome of the

election." TEX. ELEC. CODE§ 221.012. The tribunal cannot ascertain the true outcome, because of

63 evidence of mistakes and illegalities in the conduct of the election.

141. The largest and simplest illegality is plain. Travis County did not comply with the Texas

Election Code requirement that, if it is to use a computerized voting system, it must use a system

64 with ballot image storage.

A CVR is not a "Ballot Image."

142. As a matter of computer science, a CVR is not an "image" at all. Image files contain

information not present in a CVR. The California report (Exhibit P, page 60, paragraph two) clearly

states that the CVR is a data structure. A data structure is a table or list of information, in this case,

a listing of the votes from one ballot. By contrast, an image file is a computer file which describes an

image as a grid of pixels, with color and other information for each pixel stored individually. A data

65 structure is not an image file, so the Cast Vote Record file is too small to be a ballot image file.

143. Image files are far larger than a Cast Vote Record .. "A CVR is not ever more than 100 bytes

long (p 58, paragraph nine), which is more than enough room to hold a list of votes, at one byte per

vote. But no image file format could do more than a dozen or so letters in 100 bytes; it certainly

66 could not hold an entire ballot image." A CVR is nothing more than a simple data record. "Hart's

own documentation provided to Travis County states that the eScan subsystem scans each paper

ballot to create an exact digital image of the ballot cast. The eScan then reads the ballot image to 63 Sec. 221.003. SCOPE OF INQUIRY. (a) The tribunal hearing an election contest shall attempt to ascertain whether the outcome of the contested election, as shown by the final canvass, is not the true outcome because: (1) illegal votes were counted; or (2) an election officer or other person officially involved in the administration of the election: (A) prevented eligible voters from voting; (B) failed to count legal votes; or (C) engaged in other fraud or illegal conduct or made a mistake. 64 Texas Election Code § 128.001 65 See Declaration of expert witness Jeffrey Jacobson, Ph.D. ExhibitS, p. 2-3. 66 See Declaration of expert witness Jeffrey Jacobson, Ph.D. ExhibitS, p. 2

Pressley 61h Amended Election Contest p.39 898 make a CVR (Ballot Now manual, page 24, paragraph 5). In this way, the manuals clearly refer to

the CVR and the ballot image as two different things." 67 A CVR is not an image file.

144. Under Texas Statutes and constitution, a CVR is not a "ballot image" or "image of

ballot cast."

145. A ballot image, as a matter of plain language, requires a "Ballot" and an "image."

146. A ballot is defined through requirements set forth in the Texas Constitution and the Texas

Election Code. It must possess:

a. a unique serial/ticket number (Texas Constitution, Article 6, Section 4 and Texas

Election Code 52.062)

b. the election name (Texas Election Code 52.063), of Joint Special Runoff Election,

Travis County

c. the election date (Texas Election Code 52.063), ofDecember 16, 2014,

d. the designation of Official Ballot (Texas Election Code 52.064)

e. a voting square to the left of each candidate's name (Texas Election Code 52.070),

and

f. voting instructions (Texas Election Code 52.070, and 124.062)

147. The Texas Code Construction Act68 governs the interpretation of words in statutes.

"Sec. 311.011. COMMON AND TECHNICAL USAGE OF WORDS. (a) Words and phrases shall

be read in context and construed according to the rules of grammar and common usage." (emphasis

added.)

67 See ExhibitS, Declaration of expert witness Jeffrey Jacobson, Ph.D. See also Hart Ballot Now manual, attached as Exhibit AB, p. 24, 149, 259, 260 68 Texas Government Code, Chapter 311.

Pressley 61h Amended Election Contest p.40 899 148. The word "image" is defined at http://www.merriam-webster.com/dictionary/ as: Image noun im·age \'i-mij\ : a picture that is produced by a camera, artist, mirror, etc. :a mental picture: the thought of how something looks or might look : the idea that people have about someone or something Full Definition of IMAGE 1: a reproduction or imitation of the form of a person or thing; especially : an imitation in solid form : statue 2 a: the optical counterpart of an object produced by an optical device (as a lens or mirror) or an electronic device b : a visual representation of something: as (1) : a likeness of an object produced on a photographic material (2) : a picture produced on an electronic display (as a television or computer screen) 3 a : exact likeness : semblance b : a person strikingly like another person 4 a : a tangible or visible representation : incarnation b archaic : an illusory form : apparition 5 a (1): a mental picture or impression of something (2): a mental conception held in common by members of a group and symbolic of a basic attitude and orientation

b : idea, concept 6: a vivid or graphic representation or description 7: figure of speech 8: a popular conception (as of a person, institution, or nation) projected especially through the mass media 9: a set of values given by a mathematical function (as a homomorphism) that corresponds to a particular subset of the domain

149. Thus, an "image" of a ballot cast, as "construed according to the rules of grammar and

common usage," would require a "picture" or "reproduction" or "optical counterpart" or "visual

representation" or "exact likeness" or "image" file, in something similar to a photograph, a bitmap,

Jpeg, pdf, tif, etc. or similar computer format.

150. The Texas Election Code, Sec. 128.001(a)(2), requires that "The secretary of state shall

prescribe procedures to allow for the use of a computerized voting system. The procedures must

provide for the use of a computerized voting system with ... (2) a main computer to coordinate

ballot presentation, vote selection, ballot image storage, and result tabulation."

Pressley 61h Amended Election Contest p.41 900 151. A "Cast Vote Record" is nothing more than data storage file used for results tabulation. The

Texas Government Code, Sec. 311.016(2) and (3) states:

"MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute: (2) "Shall" imposes a duty. (3) "Must" creates or recognizes a condition precedent.

152. Since Section 128.0001 ofthe Election Code states that the "secretary of state shall prescribe

procedures [which] must provide for the use of a computerized voting system with ... (2) a main

computer to coordinate ... ballot image storage," the ballot image storage is a condition precedent

to the legal use of any computerized voting system.

153. Travis County has failed to comply with this condition precedent to the legal conduct of an

election. While this would theoretically affect other races decided in December of 2014, the statute

of limitations has passed for all election contests save this one.

154. The Hart Electronic Voting system can, according to its manuals, store ballot images and

cast vote records. 69 The sky will not fall if this Court orders Travis County to conduct this election

in conformance with Texas Election Code, using capabilities that are already part of the Hart

Intercivic Ballot Now system (Exhibit A, Attachment 6). Contests of all other elections that have

been held are barred by limitations. According to the Hart Manual it is a simple fix to have the

system preserve images of the ballots the voters use in deciding which candidate to vote for and that

conforms to the legal definition of a ballot.

155. Further, the Texas Government Code, Sec. 311.021, states in pertinent part:

Sec. 311.021. INTENTION IN ENACTMENT OF STATUTES. In enacting a statute, it is presumed that:

(1) compliance with the constitutions of this state and the United States is intended;

69 Exhibit AB, Hart Ballot Now Operations Manual p. 24, 149, 259, 260

Pressley 61h Amended Election Contest p.42 901 (2) the entire statute is intended to be effective; (3) a just and reasonable result is intended; (4) a result feasible of execution is intended; and (5) public interest is favored over any private interest.

156. Because the "ballot image storage" is listed separately as a requirement in two different parts

of the statute, it is a just and reasonable to construe the entire statute as operating under that feasible

requirement that an actual "ballot image," instead of a mere tally of the "Cast Vote Records," be

retained in the system in order to promote the public interest in transparent elections in which a

human being can look at an image of a ballot and count by hand accordingly in a Recount, in a

manner closely analogous to the way that ballots have been counted in America for centuries.

157. The private interest of saving money by using a system on the cheap that does not fulfill the

public purpose of transparent elections is disfavored. The purpose of the Election Code is to

provide an accurate and transparent method of electing representatives to government offices in a

way that is both efficient and conducive to public faith in the process. 70

158. In Alvarez v. Espinoza, the court observed that "[t]he election code seeks to prevent error,

fraud, mistake, and corruption, and to give effect to the will of the voters." 844 S.W.2d 238, 242

(Tex. App.-San Antonio 1992, writ dism'd w.o.j.) (emphasis added). The court continued:

The public must have confidence that the election process is fair for all candidates .... Those who have studied history and have observed the fragility of democratic institutions in our own time realize that one of our country's most precious possessions is the commitment of our public officials to the rule of law-fair and evenhanded application of rules known in advance-and the widespread acceptance of election results.

Id. at 249 (emphasis added).

70 "The purpose of the election code is to ensure that the true will of the voters is 'fairly expressed' and that the evidence of that expression is 'properly preserved.' Prado [v. Johnson, 625 S.W.2d 368 (Tex. Civ. App.--San Antonio 1981, writ dism'd w.o.j.))], 625 S.W.2d at 369-70." Gonzalez v. Villarreal, 251 S.W.3d 763,778 (Tex. App.-Corpus Christi 2013). The failures and mistakes illustrated in this Contest show that the will of voters was thwarted, and the evidence of that expression was not properly preserved.

Pressley 61h Amended Election Contest p.43 902 159. The United States Supreme Court has observed that:

[v ]oter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. The right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.

Purcell v. Gonzalez, 549 U.S. 1, 7 (2006) (per curiam) (internal citations and quotations omitted).

160. By throwing out illegitimate votes of nonresidents, and enforcing the strict procedures for

storage of ballot images, use of only non-corrupt mobile ballot boxes and non-defective mobile

ballot box readers which protect against fraud and exploitation of voters, see Guerrero v. State, 820

S.W.2d 378, 383 (Tex. App.-Corpus Christi 1991, pet. ref' d), this court will protect the franchise

of all those District 4 voters who voted legitimately. The court should not hesitate, therefore, in

ordering a clean election.

161. Because "ballot image storage" was not used by Travis County, as the statute requires, the

ballot images from the runoff election are missing election records and there are no ballots that can

be counted other than the Absentee/Mail in Ballots which resulted in a tie. Therefore the only true

outcome that can be ascertained is a tie which requires a new election.

"Election records" also include ballot boxes (containing voted ballots), tally sheets, absentee ballots, applications for absentee ballots in person and by mail, signature rosters for election day voting, and poll lists. Garcia v. Avila, 597 S.W.2d 400, 405 (Tex. Civ. App.-San Antonio 1980, writ dism'd). These items, and items like them, also constitute "precinct election records," as defined and used in chapter 66 of the code. In addition, section 273.003 lists election returns, voted ballots, and the signature roster as specific types of election records. TEX. ELEC. CODE ANN. § 273.003 (Vernon 1986). Based on the uses of the term "election records" and the examples listed within the code, we conclude "election records" are those which memorialize the actual election and the actual conduct of the election.

Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 228-229, 2000 Tex. App. LEXIS 5773, 13-14

(Tex. App. Dallas 2000)

162. "Ballot images" are "'election records' ... which memorialize the actual election and the

Pressley 61h Amended Election Contest p.44 903 actual conduct of the election."

163. Travis County has no ballot images.

164. Missing election records are, alone, sufficient grounds for this court to void the election.

Garcia v. Avila, 597 S.W.2d 400, 403 (Tex. App.-San Antonio 1980) ("[B]ecause ofthe missing

records it was impossible to ascertain the true results of the election. On that basis, the election was

declared void and a special election was ordered.)

165. Similarly, in this case, because the election records are missing, this honorable Court must

void the election and order a runoff election between the Contestant and Contestee on voting

machines that "use ballot image storage" as required by Texas Election Code 128.001 (a).

Contestee's amended motion for summary judgment must be denied.

The unserious "argument" that erroneous agency interpretation can retroactively affect

statutory history.

166. Contestee alleges, in what can only be described as a preposterous parody of statutory

construction, that an ex post facto application of agency construction of language that flies in the

face of plain meaning rule and which undermines the relevant federal standards and produces a

result that is both absurd and at odds with the statutory intent is to control. 71 167. It is uncontested that the relevant Texas statutes were enacted in 1997 and 2003. 72 Those

statutes require "ballot image storage." and "images of ballots cast."

168. In his motion for traditional summary judgment, Contestee attempts to create ambiguity in

the reading of the statutes by asserting that various administrative agencies, years after the

enactment of the statutes at issue, have redefined the words of the statutes in ways that are

inconsistent with plain language and inconsistent with the meaning of the statutes as understood at

71 Texas Election Code, Sec. 128.00l(a)(2) 72 Texas Election Code, Sec. 213.016

Pressley 61h Amended Election Contest p.45 904 the time of their enactment.

169. This is, to put it generously, a badly mistaken view of statutory construction.

170. Administrative redefinition of statutes is not allowed.

171. Under Texas case law, as set forth in R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future &

Clean Water, 336 S. W3d 619, 625 (Tex. 2011), the Texas Supreme Court reaffirmed it's 20-year-old

rule that limited the deference due to administrative determinations to those that are "'reasonable and

do[] not contradict the plain language of the statute.' First Am. Title Ins. Co., 258 S. W3d at 632

(quoting Tarrant Appraisal Dist. v. Jl,foore, 845 S. W2d 820, 823 (Tex. 1993))."

172. The Safe Future Court added that "this deference is tempered by several considerations:"

It is true that courts give some deference to an agency regulation containing a reasonable interpretation of an ambiguous statute. But there are several qualifiers in that statement. First, it applies to formal opinions adopted after formal proceedings, not isolated comments during a hearing or opinions [in a court brief]. Second, the language at issue must be ambiguous; an agency's opinion cannot change plain language. Third, the agency's construction must be reasonable; alternative unreasonable constructions do not make a policy ambiguous.

173. The plain language ofthe statutes require an "image" of a "ballot." A "Cast Vote Record,"

as a mere data record is neither "image" nor "ballot."

174. In Texas Dep 't of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170,

177 (Tex. 2004), the Texas Supreme Court, in overruling a 25-year-long pattern of erroneous

interpretation of administrative law, made it clear that Texas embraces an unusually strong version

of the plain meaning rule.

If the statutory text is unambiguous, a court must adopt the interpretation supported by the statute's plain language unless that interpretation would lead to absurd results. See Tune v. Tex. Dep't ofPub. Safety, 23 S.W.3d 358, 363 (Tex.2000) ("We must enforce the plain meaning of an unambiguous statute."); Republic Bank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985) ("Unless a statute is ambiguous, we must follow the clear language of the statute."); Brazos River Auth. v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 109 n. 3 (1962) ("[O]perating as we are under a strict theoretical division of governmental powers, it would take a bit of

Pressley 61h Amended Election Contest p.46 905 doing on the part of the judiciary to say, in the absence of ambiguous and uncertain statement or patent and manifest absurdity, that the Legislature intended something different from the clear import of the words chosen by it.. .. "); Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1039 (1916) (The literal meaning of a statute may be disregarded "only where it is perfectly plain that the literal sense works an absurdity or manifest injustice.").

See also AIC Mgmt. v. Crews, 246 S.W.3d 640 (Willet, J., concurring) (internal citations omitted) (citing to Alex SheshunoffMgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644,652 n.4 (Tex. 2006) and 542 U.S. 241, 267, 124 S. Ct. 2466, 159 L. Ed. 2d 355 (2004) (Scalia, J., concurring in the judgment).

175. The language of 128.001(a)(2) and 213.016 is unambiguous. The application of the plain

language does not lead to absurd results. The plain language does not work an absurdity or manifest

injustice. Therefore, the Court must enforce the plain language requiring the storage and printing of

images ofballots cast.

176. Contestee argues that the plain meaning rule does not apply, because subsequent statements

by administrative agencies contradict the plain meaning. In support of this notion, Contestee cites

Texas Government Code 311.011 (b): "Words and phrases that have acquired a technical or

particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."

177. First of all, it is obvious that there is no unanimous or consistent re-definition of a "ballot

image" as a "Cast Vote Record" at the federal level, or even within the Texas Secretary of State's

Office, or within the manuals of Hart InterCivic governing this very voting system. See supra,

paragraphs 22-29.

178. Moreover, every suggestion of such a re-definition put forth by Contestee is dated AFTER

the statutes were enacted in 1997 and 2003. 73 It is impossible that documents published AFTER the

statutes were enacted were considered by the legislature, and intended to have effect in defining

73 The Texas Secretary of State references cited are in 2012, 2014 and 2015. A single Election Assistance Commission reference, which is mischaracterized as described supra, is dated 2007. There is no evidence that the "Words and phrases [] ha[ d] acquired a technical or particular meaning" prior to statutory enactment.

Pressley 61h Amended Election Contest p.47 906 statutes written years before they were published. 74 The suggestion, once clearly explained, 1s

obviously ludicrous.

179. If that were not enough reason to disregard the notion put forward by Contestee, the Safe

Future deference "applies [only] to formal opinions adopted after formal proceedings, not isolated

comments during a hearing or opinions [in a court brief]." (second bracket set in original.)

180. Contestee has put forward no evidence of any "formal opinions adopted after formal

proceedings," and has explicitly attempted to rely on a 2008 "isolated comments during a hearing or

opinions [in a court brief]." These random droppings are due no deference by this court ..

181. Contestee also rests its notion that the SOS may willy-nilly redefine the words in statutes on

Section 52.075 of the Election Code. That section allows the SOS to "prescribe the form and content of

a ballot for a ... electronic voting system .. to conform to the formatting requirements of the system."

The limiting language in the provision does not allow the SoS to redefine the statute. The limiting

language allows the SoS to change the form and content merely to the extent required to conform with

fom1atting requirements of a computer system. This is unsurprising, necessary, and nowhere near as

broad a grant of power as Contestee imagines. This allows the SoS to choose, for instance, among

various image file formats. But it does not allow the SoS to ignore the requirement of Texas Election

Code, Sec. 128.00l(a)(2) for "a main computer to coordinate ballot presentation, vote selection,

ballot image storage, and result tabulation." How the SoS mandates compliance with the

128.001(a)(2) elements is discretionary under 52.075. If they mandate compliance with the

128.00l(a)(2) elements is not made discretionary by 52.075. Further, the more specific provisions

of Election Code Chapter 124, SubChapter C Electronic Voting System Ballot, trump 52.075. (e.g.,

74 Tex. Const., Art. 1, Sec. 16. states that "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made." There is no reason to believe that retroactive administrative rulings are in some way exempt from this rule.

Pressley 61h Amended Election Contest p.48 907 the electronic system ballot must be a different color than the sample ballot, § 124.062; specific

instructions are required, §124.062.)

182. A ballot is defined through requirements set forth in the Texas Constitution and the Texas

a. a unique serial/ticket number (Texas Constitution, Article 6, Section 4 and Texas

b. the election name (Texas Election Code 52.063), of Joint Special Runoff Election,

c. the election date (Texas Election Code 52.063), ofDecember 16, 2014,

d. the designation of Official Ballot (Texas Election Code 52.064)

e. a voting square to the left of each candidate's name (Texas Election Code 52.070),

f. voting instructions (Texas Election Code 52.070)

183. The cast vote records do not fulfill these requirements.

184. Consequently, the Court must reject any "cast vote records" counted, produced and tallied

on election night and the recount because they do not meet the statutory standards of an Official

Ballot and cannot be verified as representing the voter's intent in the District 4 Runoff race. This is

especially true when the election tally is pervasively tainted s described above.

185. In addition, the Texas Election Code is very clear that "ballots," "images of ballots cast,"

and "ballot images" are to be counted and used to verify voters' intent when the election results

are challenged. It is well known, that an actual digital, electronic image file in the form of various

types such as a bitmap, pdf, jpg, png, etc. is a different type of file compared to a CVR dataset file.

The legislature's specific language of "ballot image" provides a secondary method for verifying

Pressley 61h Amended Election Contest p.49 908 ballot counts. Simply printing out the same CVR data to a predefined CVR template, and counting

those CVR's which is what was already electronically counted, is not a verification method.

8.Re-canvass Should have Occurred with Mail in Ballots

186. The District 4 Austin City Council Election made material errors and should have been re-

canvassed using the results of the recount of the Mail in Ballots (240 for Pressley and 240 for

Casar) and the election should have been declared a tie between Contestant Pressley and Contestee

Casar.

187. Travis County failed to follow statutorily required recount procedures and recounted the

3,937 votes which were illegal on two counts. Primarily, the 3,937 votes were not counted from

"images ofballots cast." Secondarily, the 3,937 votes were not original Cast Vote Records-they

were copies of Cast Vote Records that were aggregated into a pdf file that was generated in

January 2015. Travis County made material errors because the 3,937 votes cast on the eSlate are

illegal on both counts and the final canvassed result, which was derived from these illegal votes, is

not the true outcome of the election; the true outcome is a tie.

III. CAUSE OF ACTION

188. Contestant incorporates paragraphs 1 through 76 of this Petition herein

189. The runoff election for City Council of the City of Austin, Precinct 4 must be voided

pursuant to Section 221.012 of the Texas Election Code and a new election held as described below

because the true outcome cannot be ascertained or, in the alternative the only ballots cast in the

election meeting legal requirements of a ballot resulted in a tie.

190. The result of these multiple irregularities, mistakes and possibility of fraud is that the

result cannot be ascertained. The Court may request voters to disclose how they voted. Or, the

Pressley 61h Amended Election Contest p.50 909 Court may declare the election void without attempting to determine how voters voted (Texas

Election Code 221.009) and call for a new election. Dr. Pressley requests that such an election be

timely set, and conducted in compliance with the Texas Constitution and the Texas Election Code.

191. In Texas Constitution, Article 6, Section 4, "In all elections by the people, the vote shall be

by ballot..." The Texas Election Code 52.001, also stipulates, "the vote in an election is by

official ballot. .. " Ballots are defined in Texas Election Code Chapter 52, Subchapter C. 75

192. In addition, the Texas Election Code (xxx) is very clear that "ballots," "images of ballots

cast," and "ballot images" are to be counted and used to verify voters' intent when the election

results are challenged. It is well known, that an actual digital, electronic image file in the form of

various types such as a bitmap, pdf, jpg, png, etc. is a different type of file compared to a CVR

dataset file. The legislature's specific language of"ballot image" provides a secondary method for

verifying ballot counts. Simply printing out the same CVR data to a predefined CVR template,

and counting those CVR's which is what was already electronically counted, is not a verification

method.

193. Several election safeguards and procedures defined by the Legislature and the Secretary

of State that are intended to prevent human errors were mistakenly not followed by Travis County.

The mistakes and failure to adhere to the Secretary of State's procedures led to and caused errors,

and illegal votes to be counted, legal votes to be not counted, and the election outcome cannot be

75 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name."

(e) A square shall be printed to the left of each line provided for write-in voting under Section 52. 066(c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.)

Pressley 61h Amended Election Contest p.51 910 known.

194. The sum total of all voting irregularities identified herein exceeds the number of votes by

which the election was decided.

195. If no "images of ballots cast" can be retrieved, printed and counted, the true outcome of the

election cannot be ascertained. The Court may order each of the more than 4,000 voters who

voted in person to testify as to how they voted, pursuant to Texas Election Code

Sec. 221.010. "SECONDARY EVIDENCE FOR UNAVAILABLE BALLOTS. If an

examination of ballots is needed in an election contest and the ballots are lost, destroyed, or

otherwise beyond the reach of the tribunal, the voters who cast the ballots may testify as to how

196. In the alternative, if Travis County cannot produce "images of ballots cast" to be printed

and counted, then Travis County cannot unequivocally determine the outcome of the election, and

the election is void. If the court does not count cast vote records because they are not images of

anything defined by law as a ballot then it can ascertain the election to be a tie by counting the

Absentee/mail-In ballots either way as a matter of law, the Court must therefore order a new

election. TEX. ELEC. CODE§ 232.041. 76

197. This Election Contest is brought in accordance with the provisions of TEX. ELEC. CODE

§232.008, which requires the Original Petition to be filed with the District Court not later than the

301h day after the date the official result of the contested election is determined.

76 Sec. 232.041. NEW ELECTION ORDERED IF CONTESTED ELECTION VOID. In an election contest in which the contested election is declared void, the conrt shall include in its judgment an order directing the appropriate authority to order a new election.

Pressley 61h Amended Election Contest p.52 911 198. On Tuesday, December 301h, the Mayor and City Council of Austin conducted an official

canvass and certification of the Runoff results for all races on the December 16, 2014 ballot,

including District 4. However a recount was conducted on January 6, 2015 and those results did

not change. The deadline for submission of a petition in an election contest is January 29, 2015.

The original petition was filed on or before that date and was timely filed.

199. All conditions precedents to Pressley's relief requested herein have been performed or have

occurred.

Prayer

200. Therefore, based on the foregoing, the Contestant requests the Runoff election be

declared void, a new Runoff be held at which images of the ballots the voter marks on an image

that contains the legally required elements of an official ballot be preserved using procedures

compliant with the Texas Election Code for use in the event of a contest, the Court award

reimbursement for the cost of her election contest, recount fees, and that the Court grant all other

and further relief, in law and in equity, to which she may be entitled.

By: Is/ David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836- Telephone 512-201-4082- Facsimile

Pressley 61h Amended Election Contest p.53 912 Email: Firm(a}D ARogersLaw .com

Mark Cohen 805 W. lOth Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney for Contestant Dr. Laura Pressley

Pressley 61h Amended Election Contest p.54 913 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on May 19,2015 on counsel of record as follows:

Charles 'Chuck' Herring Jr. 09534100 cherring@herring-irwin. com Jess Irwin- 10425700 j ess@herring-irwin.com Lauren Ross - 24092001 laurenbross@herring-irwin. com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580

Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive,# 310 Austin, Texas 78731 Phone: (512) 476-6000 Fax: (512) 476-6002 ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR

Jessica Belinda Palvino MCGINNIS, LOCHRlDGE & KILGORE LLP 600 Congress A venue Suite 2100 Austin, TX 78723 Phone:512-495-6000 Fax: 512 495-6093 jpalvino@mcginnislaw.com

David A. Escamilla Travis County Attorney Sherine E. Thomas Andrew M. Williams Patrick M. Kelly Assistant County Attorneys Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767

Pressley 61h Amended Election Contest p.55 914 Phone: (512) 854-9472 Fax: (512) 854-4808 email: Sherine. Thomas@traviscountytx. gov, Pat.Kelly@traviscountytx. gov, andrew. williams@traviscountytx. gov

By: Is/ David Rogers

Pressley 61h Amended Election Contest p.56 915 5/20/201510:57:19 PM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-15-000374 D-1-GN-15-000374

LAURA PRESSLEY, § IN THE DISTRICT COURT Contestant, § § v. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR, § Contestee. § 201 st JUDICIAL DISTRICT

CONTESTANT'S MOTION TO COMPEL

TO THE HONORABLE JUDGE MILLS

COMES NOW, Laura Pressley, Contestant herein, and seeks an order compelling the

Travis County Clerk ("Clerk") to produce documents and in support thereof would show the

following:

I.. INTRODUCTION

1. Contestant moves this honorable Court to compel the Clerk of Travis County, Texas to

provide documents responsive to her requests for production. While there is some overlap,

basically, the Travis County Clerk has either failed to provide such responsive documents, made

erroneous objections, or asserted privileges which do not comply with Texas Rule of Civil

Procedure 193.

2. Procedurally, Travis County has not provided evidence to support the privileges they assert

as required by TRCP 193.4. Rule 193.4(a) requires that "The party making the objection or

claim of privilege must present any evidence necessary to support the objection or privilege."

The privilege log provides no such evidence of the basis for the privileges asserted. Mere

assertions are not enough to preclude Travis County from providing the documents requested.

Pressley v. Casar Motion to Compel p.l

4501 3. Further, there are documents missing from the production requested that Travis County has

asserted neither objection nor privilege. The responses are either unclear or incomplete. Since

there are no timely objections or assertions of privilege as to the unclear or incomplete responses,

the Travis County Clerk must provide the requested documents.

4. Based on the pleadings, dispositive motions, and expert 1 impressions on file with this Court,

the documents sought by this motion to compel discovery responses are essential to Contestant's

case for a new election. Contestant's response to Contestee's motions for summary judgment

demonstrates potential corruption of the election process. Contestant's expert describes the

necessity and materiality of the documents requested. The documents sought delve into the

details of Travis County's process of conducting the December 2014 Runoff Election for City

Council District 4 using electronirc voting machines and the proof that not only that the process

itself was full of irregularities that materially affected the outcome, but that the process used by

Travis County does not produce an "image of a ballot cast" as required by the Texas Election

Code.

5. Contestant moves the Court issue an order to compel Travis County to produce the

documents for which it claimed privilege as well as documents that are missing or clarification

of the response.

6. Finally, should Travis County fail to comply with the Court's order, Contestant requests that

the Court award attorney's fees and costs associated with this motion

1 Exhibit F, Expert's Mental Impressions and Exhibit G, Expert's Declaration in Lieu of Affidavit.

Pressley v. Casar Motion to Compel p.2

4502 II. STANDARD TO COMPEL IN ELELCTION CONTEST

7. Texas Rule of Civil Procedure 193.1 states that "When responding to written discovery, a

party must make a complete response, based on all information reasonably available to the

responding party or its attorney at the time the response is made." See In re Allied Chern. Corp.,

227 S.W.3d 652, 657 n.20 (Tex. 2007)("a party must make a complete response, based on all

information reasonably available to the responding party or its attorney at the time the response is

made.") Providing incomplete responses violates the Texas rules for discovery.

8. To the extent privilege is asserted based on an agreement with one of the parties, the

agreement itself cannot form the basis of a privilege when portions of the information therein are

discoverable. Fleming v. Ahumada, 193 S.W.3d 704, 716 (Tex.App. - Corpus Christi 2006)

(citing Scott v. Mc!lhany, 798 S. W2d 556, 559-60, 34 Tex. Sup. Ct. J 64 (Tex. 1990) (discussing

inability of litigants to use private agreements to block discovery of information and testimony

sought by third parties); In re Cont'l Ins., 994 S. W2d 423, 426 (Tex. App.-Waco 1999, orig.

proceeding) mand. granted In re Union Pac. Res. Co., 22 S. W3d 338, 43 Tex. Sup. Ct. J 145

(Tex. 1999) (discussing limitations on contractual provisions to require litigant to "raise frivolous

objections or grounds for refusing to produce discoverable information"). See also In re DCP

Midstream, L.P., 2014 Tex. App. LEXIS 11092 (Tex.App.- Corpus Christi 2014) ("the fact that

a settlement agreement contains a confidentiality provision does not render the agreement or its

contents undiscoverable as a matter of law ... Accordingly, the confidentiality provisions of the

agreement do not insulate the settlement agreement from discovery if the discovery is otherwise

warranted.")

Pressley v. Casar Motion to Compel p.3

4503 9. Refusal to provide these documents and access to the election software and hardware used

could deprive Contestant of evidence at trial relating to the actual malfunction of the electronic

voting system actually used.

III. FACTS

10. On March 19, 2015, Contestant served her First Requests for Production to Travis County,

Texas County Clerk Dana DeBeauvoir, and she responded. See attached Exhibit A for the initial

Request for Production, Exhibit B for Court's Order, Exhibit C for Privledge Log, Exhibit D for

Email responses regarding repeated requests for Production The Travis County Clerk failed to

provide documents in response to the following specific requests that were originally granted by

Court (Exhibit E).

11. On April 13, 2015, the Court held that the Clerk was not required to produce access to

proprietary information or inspection of direct electronic voting machines, eSlate voting system,

Judge's booth controllers, software or hardware used in conjunction with eState system directly

to Pressley. In attempted compliance with the order, the Clerk withheld that information from

production and the equipment from inspection.

12. The Clerk provided the privilege log attached hereto as Exhibit C listing what it did not

produce and why.

13. Of course, the documents and items the Court allowed the Clerk to withhold from direct

unprotected production and inspection are not privileged except to the extent they constitute

trade secrets. The Texas Supreme Court in In re Bass, 113 S. W3d 735 (Tex. 2003) set forth the

standard by which information may be considered a trade secret entitled to privilege:

Pressley v. Casar Motion to Compel p.4

4504 We have held that a trade secret is "any formula, pattern, device or compilation of information which is used in one's business and presents an opportunity to obtain an advantage over competitors who do not know or use it ... To determine whether a trade secret exists, this Court applies the Restatement of Torts' six- factor test:

(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of the measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others ...

14. There is no privilege for evidence termed "proprietary." Indeed, everything is proprietary to

somebody. The Court in In re Continental General Tire, 979 SW2d 609, 615 (Tex. 1998) held:

Trade secrets and confidential information are not necessarily ''privileged' matters within the meaning of Rule 186a. If the information is material and necessary to the litigation and unavailable from any other source, a witness may be required to make disclosure.

15. Some of the withheld information is not trade secrets and should be produced and their

inspection does not violate a protectable trade secret. Midstream, id. (the confidentiality

provisions of the agreement do not insulate the settlement agreement from discovery if the discovery

is otherwise warranted.)

16. To the extent such information and items for inspection may constitute trade secrets, they

still contain information relevant to the issues in this case. The proper procedure is for such

items to be tendered to the Court in camera for its determination if they are indeed trade secrets

and with respect to trade secrets if they contain relevant information. If they contain relevant

information, they should still be ordered disclosed subject to a protective order designed to

protect their secrecy consistent with their need for use in this proceeding. See In re: Dupont de

Pressley v. Casar Motion to Compel p.5

4505 Nemours & Co., 136 S.W.2d 218 (Tex 2004). In re: Continental General Tire, Inc., 979 S.W.2d

609, 613 (Tex 1998). See also In re: Bass, 113 S.W.3d 735, 743 (Tex 2003). See§ 134A.006,

Civil Practices and Remedies Code. Jampole v. Touchy, 673 S.W.2d 869 (Tex 1984), Garcia v.

Peeples, 734 S.W.2d 343 (%Tex 1987). "Trade Secrets and confidential information are not

necessarily "privileged" matters within the meaning of Rule 186a. If the information is material

and necessary to the litigation and unavailable from any other source, a witness may be required

to make disclosure." In re: Continental General Tire, Inc. at 615. ("Trade secrets and confidential

information are not necessarily ''privileged" matters within the meaning of Rule 186a. If the

information is material and necessary to the litigation and unavailable from any other source, a

witness may be required to make disclosure.")

IV. Contestant and Her Expert Needs Withheld Evidence

17. In addition to the documents Travis County seeks to claim as privileged, other documents in

Travis County's possession, custody, or control responsive to discovery for which no privilege is

asserted are either missing or are not complete.

18. Refusal to let experts examine manuals, eSlate machines and MMB's to determine if they

were functioning properly and other material identified in the expert's declaration severely

prejudices Pressley's ability to present reliable expert testimony. Especially in light of all the

defective Mobile Ballot Boxes (MBB's) which contain actual vote data, identified in the log and

other irregularities identified in Pressley's response to the motions for summary judgment and

the lack of images of what the voters used to make their decisions on who to vote for these items

are vital not only for the expert but also for court to decide if the outcome of the election ..

Pressley v. Casar Motion to Compel p.6

450 Also, many questions remain with regard to the preservation and printing of various crucial

election records, those involved in the entry of vote data, etc. Also, the question of whether the

system used was capable of preserving and printing images of the pages on which the voters

chose who to vote for among the various choices is essential to whether the cast vote record

satisfies the statutory requirement to maintain an image of the ballot for use in a recount as a

check on the CVR produced by the computer. Therefore the Court should order the withheld

documents listed on Exhibit A produced to it in camera and upon such inspection by the court

order disclosure of all of the items on Exhibit A that are not trade secrets and for those that are

but have information material to proving that the election system and procedures were unreliable,

illegal and otherwise defective, order disclosure of those documents pursuant to a protective

order limiting their disclosure to use in this litigation .

Is/ David Rogers David Rogers LAW OFFICE OF DAVID ROGERS Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836- Telephone 512-201-4082- Facsimile Email: Firm@DARogersLaw.com

Mark Cohen SBN: 04508400 805 West 1Oth Street, Suite 100 Austin, Texas 78701

Pressley v. Casar Motion to Compel p.7

4507 (512) 474-4424 Phone (512) 472-5444 Facsimile Mark@cohenlegalservices.com "\\rww.CohenLegalServices.com

Attorneys for Contestant Dr. Laura Pressley

Pressley v. Casar Motion to Compel p.8

4508 CERTIFICATE OF SERVICE

This is to certifY that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on May 20,2015 on counsel of record as follows:

Jess Irwin- 10425700

Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580

Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive,# 310 Austin, Texas 78731 Phone: (512) 476-6000 Fax: (512) 476-6002 ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR

Jessica Belinda Palvino McGINNIS, LOCHRIDGE & KILGORE LLP 600 Congress A venue Suite 2100 Austin, TX 78723 Phone: 512-495-6000 Fax: 512 495-6093 jpalvino@mc ginnislaw .com

David A. Escamilla Travis County Attorney Sherine E. Thomas Andrew M. Williams Patrick M. Kelly

Pressley v. Casar Motion to Compel p.9

450 Assistant County Attorneys Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767 Phone: (512) 854-9472 Fax: (512) 854-4808 email: Sherine. Thomas(lil,traviscountytx.gov, Pat.Kelly@traviscountytx. gov, andrew. williams@traviscountytx. gov

Pressley v. Casar Motion to Compel p.JO

4510 5/26/20158:00:00 AM Velva L. Price District Clerk Travis County NO. D-I-GN-15-000374 D-1-GN-15-000374

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § 20lST JUDICIAL DISTRICT § GREGORIO "GREG" CASAR § Contestee § 20lST JUDICIAL DISTRICT

CONTESTANT'S RESPONSE TO CONTESTEE'S MOTION TO STRIKE PLEADINGS AND FOR SANCTIONS

COMES NOW LAURA PRESSLEY, Contestant, and files this Response To Contestee's

Motion To Strike Pleadings And For Sanctions, showing as follows:

1. Contestee's motion to strike and for sanctions must be denied. First, Contestee asks the

Court to strike Contestant's pleading based on lack of attachment of the lists referenced in the

pleading. Contestant made a good faith effort to amend her contest; the attachments were not, it

turns out, accepted by the Court's electronic filing system, leaving the attachments off the filing.

Counsel and Contestant were not aware that the electronic filing system had rejected the

attachment to the 5th Amended Contest.

2. Second, a simple phone call or email from opposing counsel would have resulted in

Contestant's counsel emailing the attachments to them. As Contestant will show below, she has

done so. Constestee's counsel currently has in their possession the attachments Contestee asserts

were lacking, the basis of his motion to strike and sanctions. Because Contestee has these

documents in his possession, his claims that Contestant's assertions are groundless, are

themselves groundless.

Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.l 1525 3. Third, through discovery, Contestant has learned from Travis County's Audit Log for the

2014 Runoff election that there were nine (9) mobile ballot boxes (MBB) from the Runoff

election were that were reported as corrupted. In addition to the fact the Contestee has the

documents they claimed they lacked, the evidence that nine MBB' s were corrupted belies

Contestee's groundless claim. Finally, the issues raised in Contestee's motion to strike are

addressed, and therefore mooted, by Contestant's 6th Amended Petition. Contestee's motion

must be denied on the grounds set forth.

Error by Court Electronic Filing System in attaching the lists referenced in the pleading

4. Contestee complains that attachments referenced in the amended contest were missing

from the filing. Contestant made a good faith effort to cure the defects of her previous contest

based on the Court's order on special exception. Contestant attached the exhibits reference in

Contestee's Motion to Strike to the filing of her 5th Amended Contest. The Court's electronic

filing system did not accept the attachments as part of the system. See Exhibit A, Declaration of

David Rogers with Attachment 1, E-FILETEXAS.GOV Email notice of Submission Failure

4962344 included herein by reference as if fully set forth.

5. Neither Contestant nor her counsel were aware of the failure of the system to accept the

exhibit attachments until Contestee's counsel filed this motion. Had counsel conferred with

Contestant's counsel regarding the missing exhibits, Contestant's counsel would have

immediately provided same. Contestant, through counsel, emailed the rejected attachments to

counsel for Contestee. See Exhibit B, Declaration of Charlotte Secord with Attachment 2, Email

of 5th Amended Contest attachments to Contestee's counsel included herein by reference as if

fully set forth.

Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.2 1526 6. The Court cannot strike the pleadings of a party that makes a good faith effort to cure

defects in their pleading. Humphreys v. Meadows, 938 S.W.2d 750, 753 (Tex.App. - Ft. Worth

1996, writ denied). Instead, Contestee must file new special exceptions, the Court must sustain

them, and Contestant must be given another opportunity to amend before the Court may strike

her pleadings. Baca v. Sanchez, 172 S.W.3d93, 95-96 (Tex.App. - El Paso 2005, no pet).

No Basis of Groundlessness

7. The court in Dike v. Peltier Chevrolet, Inc. 343 S.W. 3d 179 (Tex.App. - Texarkana

2011) held:

[T]o award sanctions under Chapter 10, it must be shown that: (1) the pleading or motion was brought for an improper purpose; (2) there were no grounds for the legal arguments advanced; or (3) the factual allegations or denials lacked evidentiary support. Chapter 10 specifies that one of the aims for imposition of sanctions for the filing of frivolous or groundless pleadings is to "deter repetition of the conduct or comparable conduct by others similarly situated."). (Citations omitted)

8. More importantly, the court in Peltier expounded on the standard for the award of

attorney's fees for sanctions:

In determining whether sanctions are appropriate, the trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the pleading Courts should presume parties and their counsel file all papers in good faith, and the party seeking sanctions must overcome that presumption. The party seeking sanctions has the burden of showing its right to relief. (Citations omitted.)

See also Nath v. Tex. Children's Hasp., 446 S.W.3d 355, 361 (Tex. 2014) ("Generally, courts

presume pleadings and other papers are filed in good faith The party seeking sanctions bears the

burden of overcoming this presumption of good faith."); Zeijinan v. Michels, 2013 Tex. App. LEXIS

10523 (Tex.App. - Austin 2013).

Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.3 1527 9. Even in a case such as this, where the sanction is sought pursuant to CPRC 10.01 et. seq.,

the burden is on the party seeking sanctions to prove that the pleading is groundless, i.e., that the

fact alleged could not be proved factually or there is no legal basis. In Peltier, 343 S.W. 3d

179, 184, the court held:

Under Section 10.001, the signer of a pleading certifies that each claim and allegation is based on the signatory's best knowledge, information, and belief, formed after reasonable inquiry. Each allegation and factual contention in a pleading must have, or be likely to have, evidentiary support after a reasonable investigation. (Citation omitted)

See also Low v. Henry, 221 S. W3d 609,614 (Tex. 2007).

10. In this case, the sole basis for Contestee's motion is that Contestant allegedly failed to attach

the documents referred to in the Sth Amended Contest. As shown above, not only was the lack of

attachments simply an electronic clerical error, Contestant has provided Contestee's counsel with the

documents supporting Contestant's claims in her Sth Amended Contest (with a copy to the Court)

rejected by the Court's e-filing system.

11. Counsel for Contestee could have swiftly and easily remedied the confusion by a phone call

or email to counsel for Contestant for the attachments referenced in Contestant's Sth Amended

Contest. Instead, Contestee's counsel has chosen to exercise the resources of this Court to basically

accomplish the same result.

Groundlessness Belied by Corrupted Mobile Ballot Boxes

12. On May 11, 201S, counsel for Contestant deposed the Travis County, Texas County Clerk,

Dana DeBeauvoir regarding, among other things, the electronic voting system used in the 2014

Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.4 1528 Travis County Runoff election. Among the exhibits about which she was deposed was the Official

Audit Log for the December 16, 2014 Joint Special Runoff Election. See attached Exhibit C.

13. Therein, Contestant discovered entries for MBB's identified as corrupted. Below is a chart

that references the page numbers on which the corrupted MBB' s are listed:

Page Date Time Description

5 12/16/14 12:30:00 pm Invalid/Corrupt MBB

22 12/16/14 8:34:45 pm Invalid/Corrupt MBB

23 12/16/14 8:42:16 Invalid/Corrupt MBB

23 12/16/14 8:42:43 Invalid/Corrupt MBB

26 12/16/14 8:53:36 Invalid/Corrupt MBB

27 12/16/14 8:57:04 Invalid/Corrupt MBB

29 12/16/14 9:09:34 Invalid/Corrupt MBB

42 12/16/14 10:12:44 Invalid/Corrupt MBB

14. These nine entries on Travis County's 2014 Runoff election audit log clearly indicate that the

mobile ballot boxes were either invalid or corrupted. The corrupt MBBs contained Runoff election

votes which mayor may not have been properly included in the Runoff election count and recount.

Regardless, Contestants allegation and factual contention that corruption of votes in the corrupted

Travis County electronic voting system in her contest has, or is likely to have, evidentiary support

after a reasonable investigation. Peltier, id.; Nath, id. Because there is no basis for a groundless

pleading claim, Contestee's motion to strike and sanctions must be denied.

Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.5 1529 Contestee's motion to strike addressed and mooted by Contestant's 6th Amended Petition

15. The offending references to specific voters has been removed by the Contestant's filing

of her 6th Amended Contest. Because the challenged portions of Contestant's prior pleadings no

longer exist in the live Contest, Contestee's motion to strike is moot. As the court in Houston

Chronicle Publ'g Co. v. Thomas, 196 S.W.3d 396, 399 (TexApp. Houston [1 st Dist.] 2006)

explained:

The mootness doctrine limits courts to deciding cases in which an actual controversy exists." A controversy "must exist between the parties at every stage of the legal proceedings ... (Emphasis added)

Citing F.D.I.C v. Nueces County, 886 S.W.2d 766, 767, 38 Tex. Sup. Ct. J. 29 (Tex. 1994) (citing

Camarena v. Tex. Employment Comm'n, 754 S.W.2d 149, 151,31 Tex. Sup. Ct. J. 563 (Tex. 1988».

16. Further, there is no pretrial order in this case. As such, Contestant is authorized to amend

her petition at any time more than 7 days prior to trial without leave of court as long as the

amendment does not operate as a surprise to the opposing party. Texas Rule of Civil Procedure

63; Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex. 1995). Since the trial is not

scheduled until July 20, 2015, Contestant may amend her pleading anytime prior to July 13,

2015. Contestee has not asserted surprise from Contestant's amended pleading. Contestant has

filed a Sixth Amended Contest based on the partial discovery provided by the Travis County

Clerk. Contestee's motion to strike is moot and should, therefore, be denied.

Sanctions

17. Based on the foregoing, there is no factual or legal basis for awarding sanctions.

Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.6 1530 PRAYER

WHEREFORE PREMISES CONSIDERED Contestant prays this honorable Court deny

Contestee's Motion to Strike and Sanctions and grant such other and further relief, in law or in

equity, which the Court may find Contestant justly entitled.

David Rogers LA W OFFICE OF DAVID ROGERS

By: /s/ David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836 - Telephone 512-201-4082 - Facsimile Email: Firm@DARogersLaw.com

Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney for Contestant Dr. Laura Pressley

Attachments:

Exhibit A, Declaration of David Rogers with Attachment 1, E-FILETEXAS.GOV Email notice of Submission Failure 4962344

Exhibit B, Declaration of Charlotte Secord with Attachment 2, Email of 5th Amended Contest attachments to Contestee's counsel

Exhibit C - Deposition, Travis County, Texas County Clerk, Dana DeBeauvoir Exhibit 12, Official Audit Log for the December 16, 2014 Joint Special Runoff Election.

Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.7 1531 CERTIFICATE OF SERVICE

This is to certifY that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on May 25,2015 on counsel of record as follows:

Charles 'Chuck' Herring Jr. 09534100 cherring@herring-irwin.com Jess Irwin - 10425700 j ess@herring-irwin.com Lauren Ross - 24092001 laurenbross(aJ,herring-irwin.com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580

Kurt Kuhn - 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 Phone: (512) 476-6000 Fax: (512) 476-6002 ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR

Jessica Belinda Palvino MCGINNIS, LOCHRIDGE & KILGORE LLP 600 Congress Avenue Suite 2100 Austin, TX 78723 Phone: 512-495-6000 Fax: 512 495-6093 jpalvino@mcginnislaw.com

David A. Escamilla Travis County Attorney Sherine E. Thomas Andrew M. Williams Patrick M. Kelly Assistant County Attorneys Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767

Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.8 1532 4/20/2015 11 :25:47 PM Velva L. Price District Clerk Travis County D-1-GN-15-000374 No. D-I-GN-15-000374

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § § GREGORIO "GREG" CASAR § Contestee § OF TRAVIS COUNTY, TEXAS § § 201 st JUDICIAL DISTRICT

CONTESTANTS' FIFTH AMENDED ORIGINAL CONTEST OF ELECTION, MOTION TO MODIFY DISCOVERY DEADLINES, AND REQUESTS FOR DISCLOSURE FOR THE OFFICE OF THE AUSTIN CITY COUNCIL, DISTRICT 4

NOW COMES, Laura Pressley, Contestant, and files this Fifth Amended Original

Petition for Election Contest for the Office the Austin City Council, District 4 (Petition) against

Gregorio "Greg" Casar, Contestee.] This Amended Pleading is in response to the court's order

sustaining special exceptions to which the Contestant disagrees. It is filed assuming the Court's

Order providing the April 20, 2015 Deadline to replead assumed Contestant would have reviewed

documents ordered to be produced by the Travis County Clerk's Office. This has not happened

yet so some of the information the Court assumed in its order Contestant would have available in

time to completely meet the order on special exception is still not available at this time.

Contestant anticipates filing another amended pleading with more specific allegations as soon as

it has had sufficient time to do so. The election was held on December 16, 2014 and canvassed

1 This Fifth Amended Petition is filed in Response to Contestee Gregorio "Greg" Casar's Answer and Special Exceptions to Contestant's Original Contest of Election, and the Court's order of April 13,2015 regarding those Special Exceptions.

Pressley v. Casar Fifth Amended OP Contest p.l 1538 on December 30, 2014. In support of this election contest, Dr. Pressley will respectfully

1. The contestant intends that discovery be conducted under level three, a custom discovery

plan for election contest devised with the approval of the court.

2. Pursuant to Texas Rule of Civil Procedure 194, and the motion set forth below, the plaintiff

requests that the defendants, within thirty days of the service of the Original Petition, disclose the

3. This contest is based on the facts that illegal votes were counted, election officers prevented

eligible voters from voting, election officers failed to count legal votes, and election officers made

mistakes that resulted in an election outcome which is not the true outcome. Thus, deprivation of

voting rights of voters in several high population polling locations which were improperly closed,

irregularity in votes counted or not counted, and a failure to comply with the Texas Election Code

requirement for storing, retrieval and printing of "images of ballots cast" in electronic voting

machines occurred and negatively affected the outcome for Pressley. Particularly, the improper

closure, consolidation and moving of the voting locations alone appears to have reduced the vote

considerably more than the margin reported in the canvass of the election. 2

4. Additionally, Travis County uses electronic voting machines from Hart Intercivic to conduct

2This is sufficient to "materially affect[] the election results." Gonzalez v. Villarreal, 251 S.W.3d 763,773,777-78 (Tex. App.-Corpus Christi 2008, pet. dism'd w.o.j.) (quoting Tiller v. Martinez, 974 S.W.2d 769,772 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.) (emphasis added); accord Reese v. Duncan, 80 S.W.3d 650,655-56 (Tex. App.-Dallas 2002, pet. denied).

Pressley v. Casar Fifth Amended OP Contest p.2 1539 elections within the county? Pressley requests that the court compel Travis County election officers

to print the "images of ballots cast" as required under the Texas Election Code. 4 (TEX. ELEC. CODE

§213.016). Without these statutorily-required "images of ballots cast" it is impossible for the Court

to determine the actual election outcome, as the only actual ballots - the mail-in ballots - are exactly

and perfectly tied between the two candidates. The Travis County Clerk has asserted that the system

Travis County uses cannot print "images of ballots cast." Images of ballots cast" is not the same as

"cast vote records." The Court, consequently, must reject any "cast vote records" produced and

tallied by such machines. The result of these multiple irregularities is that the result cannot be

known, and the Court must order a new election. Dr. Pressley requests that such an election be

timely set, and conducted in compliance with the Texas Election Code and the Secretary of State's

5. "The purpose of the election code is to ensure that the true will of the voters is 'fairly expressed'

and that the evidence of that expression is 'properly preserved.' Prado [v. Johnson, 625 S.W.2d 368

3 Voters in different parts of the state utilize a number of different voting systems, all of which must first be certified by the Secretary of State. Tex. Elec. Code § 122.001, .031. ... Once a system is certified, local political subdivisions may adopt it for use in elections. Id. § 123.001. ... The eSlate, a paperless DRE manufactured by Hart Intercivic, is one of a handful ofDREs the Secretary has certified. See Voting Systems, Texas Secretary of State, http://www.sos.state.tx.us/elections/laws/votingsystems.shtml. Voters arriving at the polls in counties using the eSlate are given a unique access code. The voter enters the code into the eSlate, which then displays the ballot. Voters tum a dial to highlight their ballot choice and then press "enter" to make a selection. After a voter completes his selections, the eSlate displays a ballot summary page. If the voter's choices are correctly displayed, the voter presses the "cast ballot" button, and the vote is purportedly recorded. See Voter Instructions, Travis County, http://www.co.travis.tx.us/county_clerk!election!eSlate/pdfs/English_Flyer_ 050923. pdf. Travis County purchased the eSlate system in 2001 and has used it since 2003. Andrade v. NAACP of Austin, 345 S.W.3d 1,4,5-6 (Tex. 2011) (footnotes omitted.) 4 See attached Appendix 10, September 30, 2014 letter from Texas Secretary of State. In this letter, Keith Ingram, Director of Elections for the Texas Secretary of State's office, specifically states "in the [Hart Voting System], ballot images remain on the voting machines themselves for recounts, contests, and other post-election reviews until archived by the county for the following election." p.2, second to last paragraph, last sentence.

Pressley v. Casar Fifth Amended OP Contest p.3 1540 (Tex. Civ. App.--San Antonio 1981, writ dism'd w.o.j.»], 625 S.W.2d at 369-70." Gonzalez v.

Villarreal, 251 S.W.3d 763, 778 (Tex. App.-Corpus Christi 2013). The failures and mistakes illustrated

in this Contest show that the will of voters was thwarted, the evidence of that expression was not

properly preserved and thus, the true outcome cannot be determined. 5

6. While some actual ballots were preserved - the mail-in ballots, in which the candidates are

perfectly tied - the vast majority of ballots and the evidence of the voters' intent were not preserved.

According to the Travis County Clerk, there are no "images of ballots cast" that the court can

review. Therefore, if "images of ballots cast" cannot be produced, we request the court to order a

7. Contestant Laura Pressley is a resident of Austin City Council District 4, Travis County,

Texas. She was a candidate in the Austin City Council District 4 Run Off Election on December 16,

8. Contestee Gregorio "Greg" Casar is a resident of Austin City Council District 4, Travis

County, Texas. He was a candidate in the Austin City Council District 4 Run Off Election on

December 16,2014. Casar has been served and has answered in this cause.

9. The election results were canvassed on December 30, 2014 and Mr. Casar was declared the

10. A "manual recount" of all early voting, election day, provisional, and mailed-in ballots was

attempted on January 6, 2015. 6 The mail-in ballots were exactly tied between the candidates, at 240

5 The requirement to preserve "images of ballots cast" in the statute is fundamental to preserving the evidence of the will of the voters. By failing to preserve that evidence, the County has destroyed evidence of the expression of the will of the voters and forced the court to call a new election. 6 Though the County Clerk termed the action a "manual recount," because the event as it occurred

Pressley v. Casar Fifth Amended OP Contest p.4 1541 each, for a total of 480 votes. 7 The attempted recount was a nullity and a real recount was made

impossible in that the attempted recount violated state law and was incorrectly performed using of the

"cast vote records" in lieu of "images of ballots cast" combined with the actual mail in ballots. Based

on the counting of "cast vote records" and mail in ballots, as could be predicted, the invalid recount did

not change the reported results of the election and the original declaration of Mr. Casar as the victor for

the run off election did not change. Casar was sworn into office on January 6, 2014. He has been

notified of the filing of this action by a delivery of a copy of this Petition in accordance with TEX.

v. JURISDICTION AND VENUE 11. Jurisdiction and venue in this case are proper and mandatory in Travis County because

the office being sought is for a district entirely within the boundaries of Travis County under the

Travis County Election Officials Prevented Eligible Voters from Voting

12. City of Austin District 4, comprised of 18 voting precincts, is located entirely III Travis

County. Early Voting and Election Day was December 1-12, and 16, 2014, respectively. Voters

seeking to vote at high-volume locations were improperly denied the right to cast their vote.

Disenfranchisement of District 4 voters occurred as a result of the closing of the highest volume

District 4 voting locations in the Run Off during Early Voting and Election Day, December 16,

did not satisfy statutory criteria, Pressley does not concede that what occurred was actually a statutory manual recount as defined by the Texas Election Code. 7 These were the only actual ballots counted during the "manual recount." The mail-in ballots were more than 10% of the total ballots cast in the election. The allegation of the county is that, despite the perfect tie in mail-in ballots, Casar beat Pressley by a 2-to-1 margin in the remaining ballots. This is a variation in election results that is highly improbable and unrecorded to Contestant's knowledge.

Pressley v. Casar Fifth Amended OP Contest p.5 1542 2014.

13. The Highland Mall voting location at 6601 Airport Blvd was open during the General

Election for Early Voting and Election Day on October 20-31, and November 4, 2014,

respectively and saw some of the highest volume of voters in District 4. This location was the

designated voting location for Precinct 142 and was an important and convenient voting location

for Precinct 156 and others nearby. It was closed for the December Run Off election for Early

Voting and Election Day. It was moved to the far less convenient Travis County Tax Office at

5501 Airport Blvd (See Appendix 1). The Pressley campaign received multiple reports of voters

being upset and confused because the voting location had been moved.

14. Specifically, reports were received by Contestant on Election Day, December 16th , from

voters while Contestant was phone banking. District 4 voter, Thomas Crawford showed up at

Cooke Elementary to vote, and reported no signs were posted to indicate where the polling

location had been moved. Similar reports were received by Brad Parsons, a campaign volunteer,

who was phone banking on Election Day. Campaign supporter, Matthew Palmer reported that

Highland Mall was closed and it was a problem for voters. Based on information and belief,

Contestant asserts that said confusion was a result of failure to post, or premature removal of, a

notice at Cooke Elementary, Precinct 222, of the relocation of the polling place.

15. Upon reviewing voter rolls for Pct 156 and 142, published by Travis County, Appendix 2

shows names, addresses and precincts of 365 voters of Pcts 156 and 142 that we allege were

disenfranchised. These 365 voters were identified based on their voting histories which include

but are not limited to voting in General Elections, City of Austin Council Elections, and Primary

Elections. The extensive voting histories of these 365 voters show they are the most consistent

voters in Precincts 142 and 156 and surprisingly did not vote in the City Council Run off election

Pressley v. Casar Fifth Amended OP Contest p.6 1543 in 2014. In addition, the Pressley campaign verified additional voters, multiple times, as very

strong Pressley supporters (by block walking/phone banking/yard signs posted), who were waiting

to vote on Election Day. These voters total 73. Therefore, Contestant alleges a total of 438 voters

16. To enhance the accuracy of this list, additional information (detailed voter information of

precincts, ballot styles, voting histories, and voting locations for those voting in the General and

Run off elections), has been requested through discovery from Travis County. Upon receipt and

review of discovery responses from Travis County, Contestant may identify additional voters and

improve the accuracy of this list. Also, for trial, Contestant is in the process of collecting

affidavits regarding disenfranchisement specifics from these voters.

17. The second highest voting precinct and polling location in District 4 for the November

General Election was Precinct 222 at Cooke Elementary located at 1511 Cripple Creek. That

Precinct is comprised of more than 25% senior voters who are 60 years and older. It was closed

during Election Day for the December Run Off (See Appendix 1). It was combined with the

fourth lowest voter turnout location in District 4, Precinct 268, Grant AME Worship Center at

18. The Pressley campaign received reports from Rob Hale, a resident and voter in Pct 222.

As usual, he and other Pct 222 voters showed up to Cooke Elementary for the December Run Off

on Election Day and were confused as to why Cooke Elementary was closed for voting for Pct

222. He helped senior voters look up an alternative location in which to vote on Kramer Lane.

When he arrived at the Kramer location, he waited for the senior voters and they did not arrive. In

addition, he had a relative that showed up at Cooke Elementary to vote, and the relative reported

no signs were posted to indicate where the polling location had been moved.

Pressley v. Casar Fifth Amended OP Contest p.7 1544 19. Upon reviewing Pct 222 voter rolls published by Travis County, Appendix 3 shows names,

addresses and precincts of 248 voters that we allege were disenfranchised. These 248 voters have

voting histories which include but are not limited to voting in General Elections, City of Austin

Council Elections, and Primary Elections. The extensive voting histories of these 248 voters show

they are the most consistent voters in Precinct 222 and they surprisingly did not vote in the City

Council Run off election in 2014. In addition, the Pressley campaign verified additional voters,

multiple times, as very strong Pressley supporters (by block walking/phone banking/yard signs

posted), which were waiting to vote on Election Day. These voters total 71. Therefore, Contestant

alleges a total of319 voters in Precinct 222 alone were disenfranchised.

20. To enhance the accuracy of this list, additional information (such as detailed voter

information such as precincts, ballot styles, voting histories, and voting locations for those voting

in the General and Run off elections), has been requested through Discovery from Travis County.

Upon receipt and review of Discovery responses from Travis County, Contestant may identify

additional voters and improve the accuracy of this list. Also, for trial, Contestant is in the process

of collecting affidavits regarding disenfranchisement specifics from these voters.

21. Another voting location open during the General Election but closed for the District 4 Run

off was Precinct 133, which was open for the General Election at Blanton Elementary located at

5408 Westminster. It was combined with the non-District 4 Precinct 130, at Memorial UMC.

22. The Pressley campaign received reports from Pct 133, Election Judge, Arthur Turner, a

resident and voter in Pct 133. During Election Day, voters from Pct 133, showed up at Blanton

Elementary to vote in the Run Off and were confused and upset as to why Blanton Elementary was

closed for voting for Pct 133. Mr. Turner had multiple calls from upset voters who did not know

Pressley v. Casar Fifth Amended OP Contest p.8 1545 23. Upon reviewing Pct 133 voter rolls published by Travis County, Appendix 4 shows names,

addresses and precincts of 116 voters Contestant alleges were disenfranchised. These 116 voters

have voting histories which include but are not limited to voting in General Elections, City of

Austin Council Elections, and Primary Elections. The extensive voting histories of these 116

voters show they are the most consistent voters in Precinct 133 and they surprisingly did not vote

24. To enhance the accuracy of this list, additional information (such as detailed voter

information such as precincts, ballot styles, voting histories, and voting locations for those voting

in the General and Run off elections), has been requested through discovery from Travis County.

Upon receipt and review of discovery responses from Travis County, Contestant may identify

additional voters and improve the accuracy of this list. Also, for trial, Contestant is in the process

of collecting affidavits regarding disenfranchisement specifics from these voters.

25. Three additional polling locations were closed for the Run off election for District 4 (Pcts

209, 258, and 260). Upon reviewing the voter rolls for these precincts published by Travis

County, Appendix 5 shows names, addresses and precincts of 235 voters that we allege were

disenfranchised. These 235 voters have voting histories which include but are not limited to

voting in General Elections, City of Austin Council Elections, and Primary Elections. The

extensive voting histories of these 235 voters show they are the most consistent voters in Precincts

209,258, and 260 and they surprisingly did not vote in the City Council Run off election in 2014.

26. The total number of closed/moved/combined precincts in District 4 for the Run off comes

to a total of 7 Precincts out of 17 voting precincts in District 4. Therefore, 41 % of District 4's

polling locations were closed, combined or moved for the December Austin City Council Run off.

Appendix 6. This caused a much lower than expected turnout for Election Day for District 4.

Pressley v. Casar Fifth Amended OP Contest p.9 1546 27. To summarize, typically Election Day and Early Voting tum out is very similar. Early

Voting for the District 4 Run Off race saw approximately 2,646 voters and on Election Day only

1,771 turned out. Due closing/ moving/ combining of 41 % of District 4 Polling locations, voters

were confused and disenfranchised and Election Day voters were about 875 short.

28. The County's actions of closing multiple, key, high volume polling locations had a

disproportionate effect on minorities, working people, and elderly voters of District 4-one of the

Hispanic-opportunity districts in the City of Austin. Four of Pressley's strongest voting

locations/boxes that showed over 50% for Pressley (222, 156, 133, 258), as evidenced by the only

remaining ballots, Mail in Ballot results, were moved or closed for the Run Off election (See

29. As a result of these aggressive and improper closures, voters registered at those locations

were improperly denied the right to cast their vote. The closure of these pro-Pressley precincts was

unfair and undermined the true outcome of the election. A conservative count of disenfranchised

voters resulting from the improper closure/moving/combining of precincts 133, 142, 156, 209,

222, 258, and 260 is 1,108. This value is consistent with the low voter turnout on Election

Day as compared to Early Voting. Upon evaluation of discovery responses from Travis County,

a more accurate number may be provided. Also, for trial, Contestant is in the process of obtaining

testimony regarding disenfranchisement specifics from these voters.

Travis County Election Officials Allowed Ineligible Voters to Cast Votes (Illegal Votes)

30. A thorough review the 4,414 Early Voting and Election Day voter names and addresses

with returned mail, and the National Change of Address database (NCOA), and voter registration

Pressley v. Casar Fifth Amended OP Contest p.lO 1547 records available online, 64 of the voters had moved, no longer resided in District 4, or had some

other residency issues, and may not have been eligible to vote in the District 4 Run Off Election.

Therefore, at least 64 ineligible voters cast votes in this election due to residency issues. A

more detailed review of the voter registrar information provided by Travis County is needed with

regard to Provisional Ballots, statements of residence, etc. Upon evaluation of Discovery

responses from Travis County, a more accurate number may be provided. A list of the 64 voter's

31. \Vith regard to additional categories for illegal votes, it is unlikely that voters that are not

interested in voting in a General Election will be interested in voting in a Run Off election. After

reviewing Travis County voter rolls (https:lltax-office.traviscountytx.gov/voter-data), for the

General Election and the Run Off, 156 voters voted in the Run Off that did not vote in the General

Election. Many are Ballot by Mails and a large number voted at specific locations. These are

potentially illegal votes and we ask the court to allow Contestant time to review and evaluate

various Discovery responses from Travis County voting records including, but not limited to,

Ballot by Mail, voter registration cards, polling location sign in sheets, and residency records, etc.

to validate the votes were cast legally. A List of these voters are found in Appendix 8.

More Ballots Than Voters During Early Voting (megaI Votes)

32. On Tuesday, December 30, 2014, the Mayor of Austin and the Austin City Council

conducted an initial official canvass and certification for the Election Day results for all races

on the ballot, including City of Austin District 4. The canvassed and certified totals for District

4 were Laura Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast.

33. The canvassed results were inconsistent with the Early Voting voter reports. Travis County

reported that 2,651 total voters voted in Early Voting in District 4. Reviewing the voter ID's, 437

Pressley v. Casar Fifth Amended OP Contest p.ll 1548 entries existed for those submitting Ballot by Mail (BBM). There were at least 28 duplicate entries for

BBM. At least 28 mail-in votes appear to have been counted twice or three times. See Appendix 6,

34. Once duplicate BBM's were removed, 2,622 voter names remained that voted in Early Voting

according to the Early Voting lists from Travis County that were distributed prior to Election Day,

December 16, 2014. Based on Travis County's Canvassed and Recount results for those that voted for

Greg Casar, or Laura Pressley or Under Voted, the total number of ballots cast for Early Voting is

2,701. Therefore, there are 80 more ballots than voters for Early Voting. These 80 extra ballots are

distributed among 15 of the 18 precincts of the District 4 Race. 8 (One precinct, with one eligible voter,

showed no votes.) See Appendix 7, Early Voting Discrepancies.

35. An analysis of the voting results show a pattern of mathematical anomalies which is highly

unlikely to occur naturally. (See Appendix 8, pages 1-3.) For the nine (9) precincts in District 4

with more than 200 voters,9 the highest volume of voters, the ratio of votes that the Contestant

received compared to Contestee is the same ratio in the November General Election (with a total

of 8 candidates) as it was in the December Run Off Election (with 2 candidates), 35.1 % vs 35.0%

respectively. In addition, the average of the percentages of the unweighted precincts that the

Contestant received compared to Contestee, in the November General Election and the December

Run Off, are also equal at 35.1 % and 35.1 %, respectively. No other Council race in the history of

electronic voting in the City (2003 - current) has shown such a tight non-variation between a

8 In the original petition, this number was identified as 79. One precinct, 211, had a single vote undervote. See Appendix 7, Early Voting Discrepancies." Additionally, there are an unknown number of ballot by mail overvotes, invalid voter registrations, ineligible voters and election day overvotes. 9 These precincts account for more than 80% of the vote in the District.

Pressley v. Casar Fifth Amended OP Contest p.12 1549 general election and a run off. Since 2003, of the total eleven Council races that went into a run

oft: seven races have greater than lOx variation and 3 show greater than 100x variation. See

36. The fact that so many precincts showed exactly the same and unchanged results for the General

Election and the Run Off is indicative of mistakes made by Travis County election officers. These

mistakes are likely related to and are due to, but not limited to, the handling of voter hardware,

37. From Travis County Voter Rolls, though over 4,000 voters were different between the

General and Run Off elections, the unique and unlikely occurrence that the results remain unchanged

and which has not occurred in the last 11 years in Travis County for any other Run Otf candidate or

election is highly improbable. The occurrence is surprising, is strictly isolated to District 4, and is

indicative of human error. Because so many high volume District 4 precincts showed exactly the same

percentage results for Pressley and Casar, it is possible that some memory cards or counting software

used in the General Election were mistakenly reused in error for the Run Off.

38. Contestee Casar alleges the factual and statistically improbable election results for the

General Election and the Run Off "are unsurprising." This is indicative of emotional wishful thinking

rather than a clear-eyed analytical assessment of evidence and data. Additionally, Casar offers vague

and irrelevant references and personal attacks from a politically biased news source, the far-left Austin

Chronicle. The Chronicle endorsed and directly campaigned for Contestee Casar. Additionally, the

Chronicle has little to no scientific expertise on staff that is qualified to offer expert testimony on

complex topics of mathematics, chemistry, physics and engineering, which they attempt to report and

39. Conversely, Contestee Dr. Laura Pressley holds a Ph.D. in Physical Chemistry from the

Pressley v. Casar Fifth Amended OP Contest p.13 1550 University of Texas at Austin and holds a minor in mathematics and has worked in the semiconductor

and technology industry as a process engineer and senior manager in Austin for over 26 years. She has

led defect and yield enhancement engineering teams in Austin, Asia, and Europe and is an expert in

mathematical and statistical data analysis. She has successfully led projects that have reduced corporate

waste on the order of multimillion dollars, quarter after quarter. See Politi fact article that that discusses

Dr. Pressley's chemistry and engineering related statements made during the campaign:

http://tinyurl.comllmey73z. Her community involvement has included being the Chair Elect of the

SafePlace, on the Executive Committee of the Austin Neighborhoods Council, President of her

neighborhood association and a team leader of the Restore Rundberg Revitalization Team. Her main

campaign messages were related to reducing waste and debt at City Hall and implementing a City of

Austin Homestead Exemption. Attached is a 2014 campaign mailer that compares Dr. Pressley's

experience and City Council policy goals with Contestant Casar (Appendix 9.)

Procedures Were Violated and Illegal Votes Appear to Have Been Counted

40. Several election safeguards and procedures defined by the Legislature and the Secretary of

State that are intended to prevent human errors were mistakenly not followed by Travis County. The

mistakes and failure to adhere to the Secretary of State's procedures led to and caused illegal votes to be

41. With regard to the counting of illegal votes, during Early and Election Day Voting, many

election irregularities occurred and mistakes were made by Travis County election officers.

According to Travis County Election Division director Michael Winn, no Zero Tapes to were printed

for machines to verify that directly prior to the first votes being cast, no votes were pre-registered on

10 A "zero tape" is run on the Judge's Booth Controller ("JBC") to ensure no votes reside in the

system. When voters arrive they are given a JBC-generated PIN number that they enter on the eSlate. They then vote and the votes are stored on the eSlate, Mobile Ballot Boxes (MBB), and JBC.

Pressley v. Casar Fifth Amended OP Contest p.14 1551 the machines. ll This failure is in violation of Texas Secretary of State requirements. The Travis

County officers violations affected the outcome of the election because votes may have remained

on the voting equipment from prior activities. See Texas Secretary of State Advisory 2012-03,

6(g)(vi), 6(k)(iii) http://www.sos.state.tx.us/elections/laws/advisory20 12-03.shtml (last visited 1-29-

42. Given so many high volume District 4 precincts showed exactly the same percentage results

for Pressley and Casar, it is possible that some memory cards or counting software used in the General

Election were mistakenly reused in error for the Run Off. (See Appendix 8.)

43. In addition, with regard to illegal votes being counted, on Election Day, no results tapes

were printed at the countywide locations when closing the polls. The SOS procedures require the

printing of closing results tapes, also. This failure is in violation of Texas Secretary of State

requirements. The Travis County officers violations affected the outcome of the election because

votes may have remained on the voting equipment from prior activities. See Texas Secretary of

State Advisory 2012-03, 6(g)(vi), 6(k)(iii) http://www.sos.state.tx.us/elections/laws/advisory2012-

03.shtml (last visited 1-29-2014). On Election Day, Pressley campaign official poll watchers were

denied access to results tapes for signing purposes at two polling locations, Gus Garcia and

Randall's at Research Blvd. Official poll watchers that were denied access are the following:

a) Rae Nadler-Olenick was denied access to Results/Tally Tapes on December 16, 2014 at polling location Randalls at Braker and Research. Results Tapes were not printed as required by Secretary of State procedures This affected the

11 Travis County received a waiver of the state requirement for such tapes for the general election only in a letter dated September 30,2014, based on the burden of the extremely long statewide ballot. See attached Appendix 10, September 30, 2014 letter from Texas Secretary of State. The run-off election ballot includes only City Council and Mayoral candidates. The run-off was restricted to two candidates in the races requiring a run-off, unlike the first round, in which as many as twelve candidates participated in some races.

Pressley v. Casar Fifth Amended OP Contest p.15 1552 outcome of the Run off election in that errors in counting, ballots cast, and voters signing in, and maintaining security protocols may have occurred. b) Paul Williams was denied access to Results/Tally Tapes on December 16,2014 when the polls closed at Gus Garcia polling location. Results Tapes were not printed as required by Secretary of State procedures 9J.sbl111]). This affected the outcome of the Run off election in that errors in counting, ballots cast, and voters signing in, and maintaining security protocols may have occurred. c) Sergio and Claire Martinez were denied access to Dobie Middle School, SubStation on December 16, 2014 and were not able to monitor for election materials coming from Gus Garcia. This affected the outcome of the Run off election in that errors in counting, maintaining security protocols may have occurred.

44. This violates Secretary of State regulations requiring that poll watchers be allowed to sign

such tapes. "The presiding election judge, an election clerk, and not more than two watchers, if

one or more watchers are present, shall sign the results tape(s)." The Travis County officers

violations affected the outcome of the election because votes may have remained on the voting

equipment from prior activities or excess votes may have been added before or after the close of

the polls and the lack of "images of ballots cast" makes the results impossible to verify. Texas

Secretary of State Advisory 2012-03, 6(k)(i) http://www.sos.state.tx.us/elections/laws/advisory2012-

45. On Election Day, Pressley campmgn official poll watchers not allowed access at the

polling substation at Dobie Middle School, where the most important ballots (for the Graham, Gus

Garcia, and Virginia Brown precincts) were placed in transit to central counting. Those boxes

were the largest and strongest Pressley boxes, as evidenced by the ballot by mail recount results.

(See Appendix 3.) This failure is in violation of Texas Secretary of State requirements. The Travis

County officers' violations affected the outcome of the election because votes may have remained

on the voting equipment from prior activities. See Texas Secretary of State Advisory 2012-03,

6(g)(vi), 6(k)(iii) http://www.sos.state.tx.us/elections/laws/advisory2012-03.shtml (last visited 1-29-

Pressley v. Casar Fifth Amended OP Contest p.16 1553 46. On Election Day, poll watchers were improperly denied access to Central Counting

activities with Mobile Ballot Boxes ("MBB"), Tally activities, and the like,12 This failure is in

violation of Texas Secretary of State requirements. The Travis County officers violations affected

the outcome of the election because votes may have remained on the voting equipment from prior

activities or been added improperly later. See Texas Secretary of State Advisory 2012-03, 6(g)(vi),

6(k)(iii) http://w\\<.W.sos.state.tx.us/elections/laws/advisory2012-03.shtml (last visited 1-29-2014).

12 Hart's eSlate System Hart's electronic (DRE) voting system is known as eSlate. The eSlate system is comprised of several distinct components. The Ballot Origination Software System ("BOSS") is used by election officials to define and create individualized electronic ballots. Data is entered once into BOSS and then flows through all components of the eSlate system. The Mobile Ballot Box ("MBB") is a reusable, portable flash memory card. It is used to store and transfer election information. When inserted into the Judge's Booth Controller, the MBB supplies election information and ballot styles, it stores an electronic representation of how votes were cast. Once voting has concluded the MBB is removed and its contents are tallied by the Tally software. The Judge's Booth Controller ("JBC") is the "brain" that manages the system, enabling poll workers to know which voting booths are in use at any time. The JBC issues access codes for the voters' use. It can control up to 12 daisy-chained eSlate units. eSlate refers to the system generally and to the device that voters use to cast ballots, unless using paper ballots, in which case Ballot Now is used. The eSlate may be equipped with a disabled access unit ("DAU") for use by disabled voters. The eSlate units are physically connected to the JBC, which stores cast-vote records. Tally is a software application that reads, stores, and tabulates the cast-vote records from the MBB (the portable flash card that transferred the cast-vote records from the JBC). Tally tabulates all early voting, absentee, and election day results, and produces various reports. Rally is a software application that is capable of reading, storing, and transferring cast-vote data from polling places or collection centers with respect to early returns. The System for Election Records and Verification Operations ("SERVO") software is an election records archiving and asset management system. SERVO is designed to recover data from equipment in the case of a lost or damaged MBB. SERVO also is designed for various recount purposes. Ballot Now is a digital-scan paper ballot system that manages the printing, scanning, and resolution of mailed-in paper ballots. It also records the electronic cast vote records to an MBB to be read and tabulated with Tally.

Pressley v. Casar Fifth Amended OP Contest p.l7 1554 The Recount

Illegal Votes Counted

47. Because of the previously noted, highly improbable statistical anomalies l3 , the duplicate

Ballot by Mail entries, and the fact that there are more ballots than number of voters for Early

Voting (overvotes), Contestant requested a manual recount of the Di strict 4 Election with the goal

48. Contestant claims the recount evidence and findings are critically material to this case

and the allegations are legally relevant to this election contest.

49. The recount failed to only count legal votes because "images of ballots cast" were not

provided and counted. Printing the "cast vote record" or "CVR" data files was in essence

reprinting the previous electronically counted results obtained on Election night. A CVR prints

data from a data file to a template; it does not count the "images of ballots cast" - it merely

reprints the tally on separate sheets of paper. It was not recounting the source data of the "images

of ballots cast," and as such it is not a meaningful check on the original count. 14 Using the CVR

13 See Appendix 8. 14 The Secretary of State is somewhat unclear on this issue. While "images of ballots cast" could be considered as a subset of the category "cast vote records," the CVRs in this case are not, in fact, images. In logical terms, the expression would be that just because all A are B does not mean all B are A. (All dogs are animals, but not all animals are dogs.) In its 2014 Electronic Voting System Procedures bulletin, posted online at . the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8 - Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEC § 214.071): 1. The candidate requesting a recount may request that the recount be done electronically or manually. 2. For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 3. For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue.

Pressley v. Casar Fifth Amended OP Contest p.18 1555 instead of ballot image also appears to violate Texas Election Code 214.049 (e): "If electronic

voting system ballots are to be recounted manually, the original ballot, rather than the duplicate of

the original ballot, shall be counted." Ballots are defined in Texas Election Code Chapter 52,

Subchapter c. 1S

50. On Sunday January 4,2015, prior to the Recount, Pursuant to TEX. ELEC. CODE § 213.016,

"PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC

VOTING MACHINES," Dr. Pressley communicated over the phone with the the Travis County

Clerk. Pressley informed the Clerk that she desired to be present during the printing of images of

ballots cast. "Each candidate is entitled to be present and to have representatives present in the

a. The Recount Coordinator shall notifY the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. b. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. c. If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. d. A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records. 15 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name."

(e) A square shall be printed to the left of each line provided for write-in voting under Section 52J)66( c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.)

Pressley v. Casar Fifth Amended OP Contest p.19 1556 same number as prescribed by Section 213.013(b) for a recount during the printing of the images."

The next day, January 5,2015, Pressley sent an email to the Travis County Clerk and copied to the

51. In addition, on January 5, 2015, Dr. Pressley communicated over the phone with the

Director of Travis County Elections Division. Pressley informed the Director that she desired to

be present during the printing of images of ballots cast. An email was sent to The Travi s County

Clerk and copied to the Texas Secretary of State's Office, to the same effect.

52. On 6,2015, a "manual recount," which did not use "images of ballots cast" for the "direct

recording electronic voting machines," was conducted and additional irregularities ensued with

No "Images of Ballots Cast" for Recount-Illegal Votes Counted

53. On Tuesday, January 6, 2015, at 11:00 a.m. (See Appendix 12) when the recount was to

begin, the Travis County Clerk and the Recount Committee relayed to Contestant and her official

recount watcher, Karen Renick, that images of ballots cast were not available, would not be

printed, and would not be used for the recount. 16 Dr. Pressley expressly stated, in her "Petition

Requesting a Recount," and "Amended Petition Requesting a Recount" that "[w]e are requesting a

manual recount of the results using the actual, stored, ballot images." (See Appendix 11.)

Pressley also expressly requested "a manual (by-hand) count." "[T]he election code expressly

provides for the 'printing of images of ballots cast using direct recording electronic voting

machines for the purpose of a recount.' See id. § 213.016." Andrade v. NAACP of Austin, 287

S.W.3d 240,258 (Tex. App. Austin 2009), rev'd on other grounds by Andrade v. NAACP of

Austin, 345 S.W.3d 1 (Tex. 2011). Failure to print images of ballots violates this provision of the

16 See attached Appendix 13, Affidavit of Karen Renick, with Exhibits 1 & 2.

Pressley v. Casar Fifth Amended OP Contest p.20 1557 election code.

54. Prior to the start of the Recount, Travis County selected the data files to print and pre-

printed an aggregated data file of Cast Vote Records ("CVRs"). The pre-printed CVRs contained

a fractional subset of the data that a District 4 ballot contains. Upon starting the recount on

January 6, 2014 around 1l:00am, Contestant relayed to the Travis County Clerk and the Recount

Committee, that not providing printed images of ballots cast was a violation of TEX. ELEC. CODE

55. Cast Vote Records are not "images of ballots cast." Ballots are defined in Texas Election

56. At the same meeting, Dr. Pressley stated that the pre-printing of recount records and

starting the recount process was also a violation of 213.016 and 213.009(c), respectively. A

member of the recount committee responded to one of the recount watchers: "They started all this

57. Pressley warned the County Clerk that the irregularities, of not printing the images of

17 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name."

(e) A square shall be printed to the left of each line provided for write-in voting under Section 52J)66( c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.)

Pressley v. Casar Fifth Amended OP Contest p.2l 1558 ballots cast, were in violation of the approved amended Petition for Recount and the Texas

Election Code and was grounds for an Incident Report. Printing the CVR data files was in essence

reprinting the previous electronically counted results obtained on Election night. A CVR is a

printing of a data file to a template - it does not "count" the images of ballots - it merely reprints

the tally on separate sheets of paper. It was not recounting the source data of the "images of

ballots cast," and as such it is not a meaningful check on the original count. 18 Using the CVR

instead of ballot image also appears to violate Texas Election Code 214.049 (e): "If electronic

voting system ballots are to be recounted manually, the original ballot, rather than the duplicate

18 Secretary of State is somewhat unclear on this issue. While "images of ballots cast" could be considered as a subset of the category "cast vote records," the CVRs in this case are not, in fact, images. In logical terms, the expression would be that just because all A are B does not mean all B are A. (All dogs are animals, but not all animals are dogs.) In its 2014 Electronic Voting System Procedures bulletin, posted online at the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8 - Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEe § 214.071): 4. The candidate requesting a recount may request that the recount be done electronically or manually. 5. For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 6. For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue. a. The Recount Coordinator shall notifY the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. b. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. c. If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. d. A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records.

Pressley v. Casar Fifth Amended OP Contest p.22 1559 of the original ballot, shall be counted." (Emphasis added.)

58. Contestant requested to conditionally proceed with the Recount and re-print the available

CVR data tiles.

59. Pursuant to TEX. ELEC. CODE § 213.007, the machines, materials, programs, and records

may be available to the Recount Committee. Pursuant to TEX. ELEC. CODE § 213.013(h), each

person entitled to be present at a recount is entitled to observe recount activities. Contestant was

not allowed to view the full recount process and how the recount data was selected from the

electronic voting machines. The CVR data files were identified, isolated and pre-selected prior to

the beginning of the Recount. Contestant requested to view the source and properties of the CVR

files, such as dates of the CVR files and origination, and was denied by the Recount Committee

Member, the Travis County Director of Elections, Michael Winn.

60. Pursuant to TEX. ELEC. CODE § 214.002, counting procedures for a recount shall be

certified in the same manner as the original count. Pursuant to TEX. ELEC. CODE § 65.014(b)(l),

the procedures for preparing the original precinct returns must state the total number of voters who

voted at the polling location as indicated by the poll list. Poll lists were not apparently reviewed

by the Recount Committee during the recount. Dr. Pressley requested the poll lists to be reviewed

and the number voters per precinct be reconciled with those documented on the polling location

combination sign-in forms. Pressley requested those numbers be reconciled with the recount

results, because of Early Voting voter lists discrepancies identified in the Recount Petition. The

request was denied by the Travis County Clerk, the Chair of the Recount Committee, and the

Director of Travis County Elections. The request was also specifically made prior to the recount

in the Amended Petition for Recount (See Attached Appendix 11, Amended Petition for Recount.)

Pressley v. Casar Fifth Amended OP Contest p.23 1560 61. Pursuant to TEX. ELEC. CODE § 213.012, the committee chair prepared a report of the vote

count. The Travis County Clerk and the Director of the Elections Division repeatedly informed

Dr. Pressley that "it was not the scope of the Recount" to reconcile the ballots with the number of

voters. The chair wrote, "The numbers of voters matched the number of ballots cast," and signed

the report (See Attached Appendix 14, "Recount Affidavit of Jay Brim"). During the Recount, the

numbers of voters on voter lists were not publicly reconciled with the ballots recounted by the

chair. Dr. Pressley commented to the chair, "Matching the numbers was not supposedly done

62. On January 5, 2015, the Mayor of Austin and City Clerk approved Contestant's amended

petition requesting a manual recount of actual stored "images of ballots cast.,,19 Contestant's amended

petition included a request to reconcile the ballots cast with the number of voters documented on the sign

in sheets and combination fomls for District 4 for the countywide polling locations and Precincts to

ensure accurate reporting of results. The number of voters recorded and the number of votes recorded

Ballot by Mail Ballots Are The Only Legal Ballots That Are Properly Preserved

63. This is why printing the "images of the ballots cast" is critical. The ballot in the General

Election was very different (8 candidates) from the ballot in the Run Off (2 candidates). If some

memory cards or counting software were reused by mistake, then the "images of the ballots cast" will

instantly and unmistakably distinguish the tme votes from the illegal votes. This is the intent of the

19 Texas Election Code §213.016. Sec. 213.016. PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES. During any printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount, the full recount committee is not required to be present. The recount committee chair shall determine how many committee members must be present during the printing of the images. Each candidate is entitled to be present and to have representatives present in the same number as prescribed by Section 213.0 13(b) for a recount during the printing of the images.

Pressley v. Casar Fifth Amended OP Contest p.24 1561 "images of ballots cast" language of the law. Which ballots were counted is the question that can be

64. The mandatory nature of this requirement becomes clear in context.

[W]e believe that violations of certain recording provisions by election clerks can certainly undermine the purpose of the election code and obscure the true will of the qualified voters.

65. Failure to retain "image of ballots cast," "ballots" and or "ballot originals" is precisely such

a violation, because there is no clear and unequivocal record of the voter's intent, absent such an

66. Given the facts and the election mistakes made by Travis County election officers, all of the

4,023 votes that show to be cast in person, are in question and must be verified. Therefore, we ask the

Court to compel Travis County to print and tally the "images of ballots cast" for the District 4 Run Off

so the court may ascertain whether the outcome as shown by the canvass is not the true outcome

because illegal votes were counted. The list of the 4,023 voters and their Voter ID' s are provided in

67. The recount included the Ballot by Mail ballots, and those specific results for Pressley and

Casar were determined?O Ballot by Mail Votes were cast in seventeen of the eighteen precincts of

District 4. 21 Pressley received 240 votes and Casar received 240 votes of the 480 total votes cast

for either candidate for the Ballot by Mail ballots. Pressley received exactly 50% of the votes.

68. The Ballot by Mail result is very different from the 33.3 and 33.8% Pressley is reported to

ha ve received for early voting and election day voting from the "cast vote records" - a variation

from mail-in votes and non-mail-in votes of almost 20% (See attached Appendix 3, "Recount

20 See attached Appendix 3, "Recount Results." 21 One precinct, with a population of a single voter, showed no votes.

Pressley v. Casar Fifth Amended OP Contest p.25 1562 Results").

69. The only actual "ballots" that were preserved and counted during the recount show

Pressley and Casar split the vote exactly in half. Moreover, 10 of the 18 precincts showed 50% or

more of the vote for Pressley. The Ballot by Mail ballots that were cast for either candidate (total

of 480 votes) were over 10% of the total ballots cast for the Run Off election.

70. The 480 Ballot by Mail ballots are the only" ballots," as that term is defined in the

Election Code, which were available and counted during the recount. Therefore, the election

should have been re-canvassed only with the 480 Ballot by Mail "ballots" and not the results

71. This is an additional reason for the court to compel the Travis County Clerk to comply with

TEX. ELEC. CODE § 213.016 22 and 214.049 (e?3 to print and count the statutorily required "images

of ballots cast" and ascertain whether the previous outcome of the election is not the true outcome.

72. On January 6, 2015, the recount was conducted and completed. After the recount, the

totals were unchanged as compared to the original canvassed results. The totals were Laura

Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast.

73. Reconciliation ofvoier signatures on rolls at polling locations and total ballots cast has not

been completed. An election contest is the only available remedy to explore the discrepancy

between the number of ballots counted and the number of voter names and signatures in the

74. The sum total of all voting irregularities identified herein exceeds the number of votes by

22 "PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES" 23"If electronic voting system ballots are to be recounted manually, the original ballot, rather than the duplicate of the original ballot, shall be counted."

Pressley v. Casar Fifth Amended OP Contest p.26 1563 which the election was decided.

75. If no "images of ballots cast" can be retrieved, printed and counted, Travis County cannot

unequivocally determine the outcome of the election. The Court may order each of the more than

4,000 voters who voted in person to testify as to how they voted, pursuant to Texas Election Code

Sec. 221.010. "SECONDARY EVIDENCE FOR UNAVAILABLE BALLOTS. If an

examination of ballots is needed in an election contest and the ballots are lost, destroyed, or

otherwise beyond the reach of the tribunal, the voters who cast the ballots may testify as to how

76. In the alternative, if Travis County cannot produce "images of ballots cast" to be printed

and counted, then Travis County cannot unequivocally determine the outcome of the election, and

the election is void. As a matter oflaw, the Court must therefore order a new election. TEX. ELEC.

77. This Election Contest is brought in accordance with the provisions of TEX. ELEC. CODE

§232.008, which requires the Original Petition to be filed with the District Court not later than the

30 th day after the date the official result of the contested election is determined.

78. On Tuesday, December 30 th , the Mayor and City Council of Austin conducted an official

canvass and certification of the Run Off results for all races on the December 16,2014 ballot,

including District 4. However a recount was conducted on January 6, 2015 and those results did

not change. The deadline for submission of a petition in an election contest is January 29, 2015.

The original petition was filed on or before that date and was timely filed.

24 Sec. 232.041. NEW ELECTION ORDERED IF CONTESTED ELECTION VOID. In an election contest in which the contested election is declared void, the court shall include in its judgment an order directing the appropriate authority to order a new election.

Pressley v. Casar Fifth Amended OP Contest p.27 1564 VIII. CONDITIONS PRECEDENT

79. All conditions precedent have been performed or have occurred.

82. The facts asserted above are included herein by reference. Contestant claims that voters

were disenfranchised due to the failure of Travis County to provide and/or maintain an adequate

notice at the general election polling place (Highland Mall and other voting locations identified

herein) detailing the relocation of the polling place to the Travis County offices for the runoff

election in December 2014. Such failure to provide notice of relocation of the polling place for

the runoff election is a violation of Texas Election Code § 43.062. Section 43.062 states:

Sec. 43.062. NOTICE AT PREVIOUS POLLING PLACE. Ifthe location of the polling place for an election precinct is different from the location used for the precinct in the preceding election ordered by the same authority, the authority responsible for giving notice of the election shall, if possible, post notice at the entrance to the previous polling place stating that the location has changed and providing the location of the new polling place.

Added by Acts 2001, 77th Leg., ch. 802, Sec. 1, eff. Sept. 1,2001.

Contestant seeks an order requiring a vacation of the runoff election and an order requiring a

83. Contestant asserts that the December 2014 runoff fails to comply with the statutory

requirements of the Texas Election Code Chapters 128 and 213. Section 128.001 states:

Pressley v. Casar Fifth Amended OP Contest p.28 1565 (a) The secretary of state shall prescribe procedures to allow for the use of a computerized voting system. The procedures must provide for the use of a computerized voting system with: (1) multiple voting terminals for the input of vote selections on the ballot presented by a main computer; and (2) a main computer to coordinate ballot presentation, vote selection, ballot image storage, and result tabulation.

84. Section 213.016 states:

Sec. 213.016. PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES.

During any printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount, the full recount committee is not required to be present. The recount committee chair shall determine how many committee members must be present during the printing of the images. Each candidate is entitled to be present and to have representatives present during the printing of the images in the same number as Section 213.013(b) prescribes for watchers for a recount.

Added by Acts 2003, 78th Leg., ch. 583, Sec. 2, eff. Sept. 1,2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 1235 (S.B. 1970), Sec. 22, eff. September 1,2009.

85. As asserted above, the Travis County Clerk cannot provide "images of ballots cast" for

purposes of a recount in the December runoff election as required by the Texas Election Code.

Because the Travis County Clerk cannot produce "images of ballots cast", the ballots cast on the

electronic voting machines cannot be verified. Contestant seeks an order from this case vacating

the December 2014 runoff election. Since the only verifiable votes in the December runoff are

the ballots by mail, said votes resulting in a tie in the runoff, Contestant seeks an order from this

Court directing that another nmoff election be conducted and that the Travis County Clerk

provide "images of ballots cast" in such a runoff election for purposes of allowing all affected

parties to verify the results of said runoff in compliance with the above-referenced provisions of

Pressley v. Casar Fifth Amended OP Contest p.29 1566 the Texas Election Code.

86. Contestant asserts that failure to provide notice at the general election polling place of the

relocation of the polling place for the runoff has a disproportionate impact on minority voters in

violation of Section 2 of the Voting Rights Act. 42 U.S.c. §§ 1973b(f), 1973l(c)(3» (now 52

USC 10303) bars voting discrimination against certain language minorities--specifically, persons

of American Indian, Asian American, Native Alaskan, and Spanish heritage. Members of the

protected class of Spanish heritage in Precincts 142 and 156 (Appendix 1) were disenfranchised

by the confusion created by the lack of notice of the change in polling place for the December

2014 runoff election. Contestant seeks an injunction from this Court pursuant to 42 U.S.c.

§ 1983 vacating the runoff election and requiring a new runoff election forthwith.

87. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign

an order shortening the time allowed for Contestee to comply with the discovery requests set forth

88. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign

an order shortening the time allowed for Contestee and third-party witnesses, voters, the City of

Austin and Travis County, to comply with the discovery requests set forth below in paragraph to

no more than ten days, and that the period of notice required for Deposition on Written Questions

89. Contestants further requests that the Court slgn an order requmng that Contestee's

Pressley v. Casar Fifth Amended OP Contest p.30 1567 response to the request for disclosure, and all other responses and answers in this case be hand-

90. The foregoing modifications to standard discovery procedures are necessary because of

the accelerated procedures that apply to this election contest. The foregoing reasons constitute

91. Dr. Pressley has found indisputable election irregularities and mistakes that were made in

conducting the District 4 election held on December 16, 2014 that show the outcome as shown by

the final canvass is not accurate and she is bringing this election contest. Because illegal votes were

counted, eligible voters were prevented from voting, legal votes were not counted, and Travis

County election officers made errors and mistakes, Dr. Pressley is asking, pursuant to Section

221.003 (a), for the "court to ascertain whether the outcome of the District 4 Run Off election, as

shown by the canvass, is not the true outcome." If a contestant is prevented by the county clerk

from proving the actual number of legal votes by the clerk's act of not preserving or requiring or

counting images of the ballots actually cast there is no way to conclude the clerk reported the true

outcome . Without the images of the actual ballots there is not a true outcome and the run-off

election must be repeated preserving the images of the ballots cast as provided and required by state

92. Contestee alleges Dr. Pressley is attacking the entire state-wide electronic-voting system. In

fact, the contest is limited solely to the discrete errors made by the Travis County Clerk's office in

this single election. All counties are capable of complying with the law and preserving images of

the actual ballots cast by a voter. Travis county just elected to ignore that law and the sound public

Pressley v. Casar Fifth Amended OP Contest p.3l 1568 policy behind it. It cannot certify a true outcome by reason of its own misconduct in this election

93. Weaknesses in the Travis County Election systems are well known and have been

extensively identified. Several years ago, Travis County Clerk Dana DeBeauvoir herself convened

a Travis County Clerk Election Study Group to evaluate Travis County's current voting system

and make recommendation s for future systems.

(http://www. traviscountyclerk.org/eclerklcontent/images/presentations_ articles/pdCtc _elections _E

SG_Report_2009. pdf) Clerk DeBeauvoir had determined that a study group was needed to

address public concerns about electronic voting and to ensure ample time to plan for an upgrade or

replacement of the existing system and "its most significant recommendation is that Travis County

move away from an all-electronic voting system to one that offers electronically-counted paper

ballots." Clerk DeBeauvoir is on record stating the need to redesign and replace Travis County's

(http://www. traviscountyclerk.org/eclerklcontent/images/presentations articles/pdf tc elections 2

013.07.26 star.pdf and https://www.supportthevoter.gov/files12013/09/Dana-Debeauvoir-STAR-

Voting-System-Diagram.pdf and "Three years ago, DeBeauvoir decided that something had to

change. "1 said, 'Okay, I'm fed up. I'm going to design my own system.'" Part of her frustration

stemmed from complaints lodged against the county that she felt blamed officials for things

beyond their control."( https://www.texastribune.org120 14/07/09/travis-county-forges-new-

94. Given the specific voting irregularities outlined herein, Dr. Laura Pressley fully supports

the Clerk's search for a more accountable and election system. One critical component that the

Travis County system is lacking is that Texas Election Code allows for a manual recount using

Pressley v. Casar Fifth Amended OP Contest p.32 1569 "images of ballots cast." When Pressley requested a manual recount using "images of ballots cast"

for the District 4 Run Off election, Travis County is on record stating they cannot comply.

Interestingly, in January 20] 5, Pressley was informed both by DeBeauvoir and fonner Travis

County Judge Bill Aleshire that no other candidate in Travis County's history had requested a

manual recount of "images of ballots cast." A review of reported cases shows no indication that

any candidate in the state has requested such a statutorily-allowed recount. This contest, therefore,

to the extent it decides issues regarding this mandate and this language, is a case of first . . 25 ImpressIOn.

The court will, of course, be guided by the Texas Supreme Court's view of statutory language, 25 which is not as fluid as that of federal courts or other state courts.

If the statutory text is unambiguous, a court must adopt the interpretation supported by the statute's plain language unless that interpretation would lead to absurd results. See Tune v. Tex. Dep't ofPub. Safety, 23 S.W.3d 358,363 (Tex.2000) ("We must enforce the plain meaning of an unambiguous statute."); RepublicBank Dallas, NA. v. Interkal, Inc., 691 S.W.2d 605,607 (Tex.1985) ("Unless a statute is ambiguous, we must follow the clear language of the statute. "); Brazos River Auth. v. City of Graham, 163 Tex. 167,354 S.W.2d 99, 109 n. 3 (1962) ("[O]perating as we are under a strict theoretical division of governmental powers, it would take a bit of doing on the part of the judiciary to say, in the absence of ambiguous and uncertain statement or patent and manifest absurdity, that the Legislature intended something different from the clear import of the words chosen by it.. .. "); Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1039 (1916) (The literal meaning of a statute may be disregarded "only where it is perfectly plain that the literal sense works an absurdity or manifest injustice.").

Texas Dep't ofProtective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004). (emphasis added.) See also AIC lVff.!tnt. v. Crews. 246 S.W.3d 640 (Willet. J.. concurrim!) (internal citations omitted) (citing to Alex SheshunoffMf.!mt. Servs .. L.P. v. Johnson. 209 S.W.3d 644.652 nA (Tex. 2006) and 542 U.S. 241, 267, 124 S. Ct. 2466, 159 L. Ed. 2d 355 (2004) (Scalia, J., concurring in the judgment).

This Court recognizes that legislative intent is best embodied in legislative language. We recently cautioned that "over-reliance on secondary materials should be avoided, particularly where a statute's language is clear. If the text is unambiguous, we must take the Legislature at its word and not rummage around in legislative minutiae."

Pressley v. Casar Fifth Amended OP Contest p.33 1570 95. With regard to the fact that Travis Count's use of one version of the Hart InterCivic

eSlate system may violate the Texas Election Code requirements for storing, retrieving, and

printing of "images of ballots cast," we respectfully assert any regulatory redefinition equating

"images of ballots cast" with "cast vote records" exceeds the statutory grant of authority?6 Given

that the term "ballot" is defined in the Texas Election Code and "images of ballots cast" is

referenced with regard to recounts and "cast vote records" are not, the Texas Election Code trumps

96. Addressing the various pieces of evidence that became available and the irregularities that

occurred during the recount is important in the analysis and evaluation of this election contest.

The recount evidence is critically material to this case and the allegations are legally relevant to

this election contest. Moreover, it is in the recount failures that Travis County's failure to use

97. The legal question raised by an election contest is whether the outcome of the

contested District 4 election is not, or cannot be conclusively detennined to be, the true outcome.

Specifically, Dr. Pressley has found that illegal votes were counted, Travis County Elections

Division prevented eligible voters from voting, failed to count legal votes, and engaged in other

irregularities that materially affected the election results. Moreover, because of the failure of

Travis County to maintain "images of ballots cast", the outcome cannot be detennined to be the

Faced with clear statutory language, "the judge's inquiry is at an end." It may be a widespread practice to mine the minutiae of legislative records to discern what lawmakers had in mind, but as we have held, relying on these materials is verboten where the statutory text is, as here, absolutely clear. 26 We cannot construe the rule in a manner that is inconsistent with the statute. See, e.g., Centerpoint Enerfc:.Y, Inc. v. Public Uti!. Comm'n, 143 S.W.3d 81,85 (Tex. 2004) (observing that rule is invalid if it violates statutory provision); Texas Workers' Compo Comm'n v. Patient Advocates, 136 S.W.3d 643, 657-58 (Tex. 2004) Tex. }.1ut. Ins. CO. V. Vista Cmty. Aled. Ctr., LLP, 275 S.W.3d 538,557,2008 Tex. App. LEXIS 8602,45 (Tex. App. Austin 2008) (emphasis added.)

Pressley V. Casar Fifth Amended OP Contest p.34 1571 true outcome.

98. Contestee Casar's ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO

CONTESTANT'S ORIGINAL CONTEST OF ELECTION references the Andrade v. NAACP

case, seeks to apply it to the instant case, and states that "the Secretary of State's certification of

eSlate for use by Travis County did not violate equal protection rights of voters using electronic

99. Contestee Casar misinterprets Contestant Dr. Pressley's claims in this case. She does not

assert a claim of violation of equal protection as it relates to electronic voting systems. Rather,

Contestant Dr. Pressley asserts that illegal votes were counted, election officers prevented eligible

voters from voting, election officers failed to count legal votes, and election officers made mistakes

that resulted in an election outcome which is not the true outcome and did not preserve images of

ballots to be used as acheck on the computer results which prevented a detemlination that the election

and the recount was a true outcome. Thus, the Andrade case is irrelevant.

100. Contestee Dr. Pressley's election contest claims were not asserted in Andrade v. NAACP

and Dr. Pressley has been directly harmed by Travis County's conduct during the District 4

election and she has been directly harmed by the County's inability to ascertain the true outcome

because "ballots," "original ballots" and/or "images of ballots cast" cannot be counted.

Tex. Democratic Party v. Williams, 285 Fed. Appx. 194, 195 (5 th Cir. 2008)

101. In CONTESTEE'S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO

CONTESTANT'S ORIGINAL CONTEST OF ELECTION he references Tex. Democratic Party

v. Williams, and applies it to our case with regard to "the eSlate did not violate voters' rights under

Pressley v. Casar Fifth Amended OP Contest p.35 1572 the First and Fourteenth Amendments to the United States Constitution."

102. Contestee Casar misinterprets Contestant Dr. Pressley's claims in this case. She does not

assert claims of violations of the First and Fourteenth Amendments to the United States Constitution as

it relates to electronic voting systems. Rather, Contestant Dr. Pressley asserts, illegal votes were

counted, election officers prevented eligible voters from voting, election officers failed to count legal

votes, and election officers made mistakes that resulted in an election outcome which is not the true

outcome and they did not preserve the images of ballots which is a possible function of the eSlate

103. Additionally, as a matter of law, Dr. Pressley claims that "cast vote records" do not meet the

statutory requirements of "ballots," "original ballots" and/or "images of ballots cast." Therefore, if

"images of ballots cast" were not preserved, and thus cannot be retrieved, printed and counted,

then Travis County cannot unequivocally determine the outcome of the election.

Pressley v. Casar Fifth Amended OP Contest p.36 1573 Conclusion

104. Therefore, based on the foregoing, the Contestant requests the run-off election be

declared void, a new run-off be held at which images of the ballots actually cast be preserved

using procedures compliant with the Texas Election Code for use in the event of a contest, the

Court award reimbursement for the cost of her election contest, recount fees, and that the Court

grant all other and further relief, in law and in equity, to which she may be entitled.

By: /s/ David Rogers David A. Rogers Texas Bar No. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836 - Telephone 512-201-4082 - Facsimile Email:

Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney jor Contestant Dr. Laura Pressley

Pressley v. Casar Fifth Amended OP Contest p.37 1574 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on April 20, 2015 on counsel of record as follows:

Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580

Kurt Kuhn - 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002- Facsimile ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR

Andrew M. Williams Assistant County Attorney Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767

Pressley v. Casar Fifth Amended OP Contest p.38 1575 5/26/2015 8:00:00 AM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-15-000374 D-1-GN-15-000374

LAURA PRESSLEY, § IN THE DISTRICT COURT Contestant, § § V. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR, § Contestee. § 201 st JUDICIAL DISTRICT

CONTESTANT'S RESPONSE TO THIRD PARTY MOTION FOR PROTECTIVE ORDER

COMES NOW, Laura Pressley, Contestant responding to Third Party's Motion for

Protective Order.

I. BACKGROUND

1. Contestant requests this honorable Court to compel the Clerk of Travis County, Texas to

provide documents responsive to her Second Request for Production of Documents to Travis

County Clerk, Dana DeBeauvoir submitted on May 14, 2015. Also, Contestant request this

honorable Court to compel the Clerk of Travis County, Texas to respond appropriately to

deposition requests that have been made by Contestant. The Clerk has recently filed a Motion for

Protective Order claiming Contestant is conducting discovery which is outside the Court's Order

on Third Party Discovery Plan. This is not an accurate representation. The Travis County Clerk

has made erroneous objections, or asserted privileges which do not comply with Texas Rule of

Civil Procedure 193. Contestant's Second Request for Production ofDocuments submitted to the

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.l

4 0 Travis County Clerk is relevant to the subject matter of her pending action and are directly

related to new information disclosed in the Clerk's discovery response and Contestant would be

unfairly prejudiced without such additional discovery.

II. ARGUMENT AND AUTHORITIES

2. The Travis County Clerk continues to make overly broad statements and objections to

Contestant's production requests. The Clerk has not provided a good faith factual and legal basis

for the objections. Instead the Clerk's objections are broad, non-specific, and do not identify

which of the 29 individual requests are problematic and why.

3. According to Texas Rule of Civil Procedure 192.3, it is not a ground for objection that the

information sought will be inadmissible at trial if the information appears to be reasonably

calculated to lead to discovery of admissible evidence. All of Contestant's requests will be

admissible and/or is expected to lead to admissible information.

4. Contrary to the Clerk's assertion, Contestant is not seeking discovery that is contrary to the

Court's rulings. Contestant's Second Request for Production of Documents, submitted to the

Travis County Clerk, is relevant to the subject matter of her pending action and are directly

related to new information disclosed in the Clerk's discovery response and deposition.

Furthermore, Contestant would be unfairly prejudiced without such additional discovery.

5. If the Clerk believes a request violates the Court's ruling, the Clerk should be specific as to

which requests from Contestant's Second Request for Production of Documents are in violation

of the Third Party Discovery Control Plan. At this time, the Clerk has only make broad

generalities and no specific details of her allegations have been presented.

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.2

4 07 6. If the Court desires, Contestant is more than amendable to providing details for the various

production request to explain the importance of each item and describe how the requests will

either be admissible evidence at trial or lead to admissible evidence. However, this has been

made clear in the response to summary judgment and the motion to compel already on file.

7. In addition, in light of the recent discovery responses and the Clerk's deposition, new

pleadings have been filed in Contestant's 6th Amended Petition 1 . Contestant's Second Request

for Production of Documents 2 reflect, and are directly related to, new information disclosed in

Clerk's recent discovery response and Contestant would be unfairly prejudiced without such

additional discovery.

8. In fact, this Court stated to Contestant's Council, Mr. Rogers, "If you can provide the Court

with some evidence as to some -- one of these mistakes that you can identify, I'll have them

search for those particular issues .... "(Transcript from Special Hearing, April 6, 2015, pp. 124-

5). See below for examples of such mistakes that warrant further discovery requests.

9. The Clerk's discovery responses and her subsequent deposition have validated that numerous

mistakes were made during the tabulation of votes on the night of the Runoff election. 3 ' 4 Many

vote corruption mistakes (Exhibit C, pages 5, 22, 23, 26, 27, 29 and 42), as evidenced in the Hart

Voting System security audit logs errors, "Invalid/Corrupt MBB [Mobile Ballot Box-where

1 Exhibit A, Contestant's 61h Amended Petition. 2 Exhibit B, 2nd Request for Production for Travis County Clerk, Dana DeBeauvoir 3 Exhibit C, Tally system security audit logs 4 Exhibit D, Deposition of Travis County Clerk, Dana DeBeauvoir

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.3

4 08 votes are stored]." Regarding these errors, the Clerk said, , "I've never heard of so many." 5

(Exhibit D, Page 98 lines 16-25)

10. Contestant has made additional production requests based on the reasonable calculation that

the new information related to corrupt memory cards, corrupt hardware, preventive maintenance

of hardware, corrective action logs, those with access to corrupt memory cards, manuals,

specifications, backup hardware, software, parallel testing, etc. will be admissible at trial or will

lead to admissible information at trial so the Court can determine if the true outcome of the

election can be known

11. In addition, discovery documents specifically state ballot images in the form of an image file

(.bmp) and cast vote records are stored on the Hart Voting System6 (Exhibit E, page 24 and 259-

260) and thus Contestant has made specific requests related to ballot images stored on the

equipment.

12. The Clerk further misrepresents the facts in this case with respect to the manual recount.

The manual recount was conducted in violation of the Texas Election Code, in that ballot images

were not used to recount votes, A cast vote record is not an image ofballots cast because it is not

a ballot, or an image.

13. Also, in the Motion for Protective Order, the Clerk misrepresents that documents have been

provided to Contestant that "verify the outcome of the election":

5 Exhibit D, Dana Deposition, MBB references. 6 Exhibit E, Hart Voting System Ballot Now Operations Manual

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.4

4 0 a. Polling place sign in sheets-These do not verify the votes cast by voters, do not

meet requirements in the Texas Election Code as statutory ballot images, and

therefore, do not verity the election outcome.

b. Audit logs- These do not verity the votes cast by voters, do not meet

requirements in the Texas Election Code as statutory ballot images, and therefore,

do not verity the election outcome. In addition, the audit logs have been found to

have missing entries and thus are not credible.

c. Serial numbers of equipment- These do not verify the votes cast by voters, do

not meet requirements in the Texas Election Code as statutory ballot images, and

d. List of Early Votes names- These do not verity the votes cast by voters, do not

meet requirements in the Texas Election Code as statutory ballot images, and

therefore, do not verify the election outcome. In addition, compared to Early

Voting lists provided in December to Contestant, it appears many voters names

have been removed and thus is not a credible list.

e. Canvass Reports- These do not verify the votes cast by voters, do not meet

requirements in the Texas Election Code as statutory ballot images, and therefore,

do not verify the election outcome.. These lists are produced from the same

system that was subject to the "Invalid/Corrupt MBB" errors and thus are

unreliable.

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.5

4 10 f. Zero Tapes-These do not verity the votes cast by voters, do not meet

requirements in the Texas Election Code as statutory ballot images, and therefore,

do not verify the election outcome. In addition, discovery documents provided by

Travis County show no "Zero Tapes" that meet the Texas Secretary of State's

definition were printed and retained for the Runoff and thus were not provided to

Contestant.

14. To be clear, documents have not been provided to Contestant that meet Texas Election Code

to verity the voters' intent in the District 4 Runoff election and thus do not verify the outcome of

the election.

15. Furthermore, the Clerk misrepresents the intent of the Court's Discovery Control Plan Order7

paragraph 8 whose subject matter specifically refers to communication documents and

Contestant's Second Request for Production do not ask for any communication related

documents:

a. " ... emails, memos, correspondence, or text messages regarding communications

regarding the election without specificity as to the email and basis ... "

b. " ... communications (including reports, emails, memo, correspondence, text

messages, IM's, video conferencing or power points) regarding the election ... "

7 Exhibit F, Court's Discovery Plan Order

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.6

4 11 16. It is unreasonable for the Clerk to claim immunity from further discovery requests since the

election records of the Runoff are statutorily held by the Travis County Clerk's office.

Additional discovery requests are needed to ascertain if the true outcome can be determined.

17. Also, for the Clerk to continue to make statements that Contestant's case is a "frivolous

contest" is highly disingenuous and inappropriate given the numerous election irregularities and

possible criminal violations that have caused statutorily required election records to be missing

and/or deleted. Because of the missing election records, the true outcome of the Runoff cannot

be known and Contestant will continue to make requests for documents and depositions that will

be admissible in trial or lead to admissible information for trial.

18. It is not been proven by the Travis County's Clerk's office that the Hart Voting System does

not have the capability to produce "images of ballots cast" per the Texas Election Code. Based

on Hart Manuals, and Hart patents, the equipment has the capability to store and use ballot

image files in the form of a bitmap (.bmp ). Contestant asserts that Travis County may not

understand how their equipment stores or retrieves ballot images:

a. Firstly, the Ballot Now manual 8 provided to Contestant clearly documents the

system saves "ballot images" in the form of a bitmap (.bmp format) file and in

addition, it stores cast vote records (data structure format) to transfer data to Tally

system. In the Clerk's deposition, she stated, the Ballot Now does not store ballot

images. This is clearly a misinformed statement.

8 Exhibit E, Hart's Ballot Now Operations Manual (page 24 and 259-260)

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.7

4 12 b. Secondly, in Contestant's First Request for Production, all Cast Vote Records

were requested and we know they have not been produced. It has been repeatedly

stated by the Clerk's counsel, Mr. Williams, that they have produced all cast vote

records. This is clearly a misinformed statement given the Ballot Now manual9

clearly states Cast Vote Records are stored and used to transfer Absentee/Mail in

Ballot voter data, and

c. Thirdly, in Contestant's First Request for Production, all Ballot Images were

requested and we know they have not been produced. It has been repeatedly

stated by the Clerk's counsel, Mr. Williams, that they cannot produce any ballot

1mages. This is a misinformed statement given Travis County's Ballot Now

Operations manual clearly states ballot images in the form of a bitmap file (.bmp)

are stored and can be retrieved. 10

Thus, given these three examples of Travis County not being aware of the full capabilities of the

Hart system as they relate to cast vote records and ballot images, Contestant seeks information to

prove or disprove ballot images remain on the eSlate, JBC, and the Mobile Ballot Boxes

(MBB' s) for the Runoff.

19. Contestant understands and is sensitive to proprietary concerns given she holds four U.S.

patents herself and because of her extensive background in the technology industry here in

Austin. With that in mind, Contestant is amenable to gaining access to documents under a

9 Exhibit E, Hart's Ballot Now Operations Manual (page 24 and 259-260) 10 Exhibit E, Hart's Ballot Now Operations Manual (page 24 and 259-260)

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.8

4 13 protective order or in camera inspection. The intent of the discovery requests are to determine if

the true outcome of the election can be known.

20. Oral deposition of those Travis County employees and/or contractors that have information

regarding security database error codes or security protocols that occurred during the Runoff

given the security breaches, missing audit log entries, corrupt error codes, duplicate vote entries,

that occurred with the tabulation of votes is critical and is reasonably calculated to lead to

admissible information. In addition, in her deposition, the Travis County Clerk agreed to

provide names of such individuals. 11

21. The needs and circumstances of this election contest warrant the above referenced Second

Request for Production and deposition of Travis County employee( s) that have knowledge of the

details of the Runoff election as it relates to the error codes and entries documented in the audit

logs.

By: Is/ David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836- Telephone 512-201-4082- Facsimile Email: Firm@DARogersLaw.com

11 Exhibit D, Deposition of Travis County Clerk, Dana DeBeauvoir, p. 7lines 1-9, p. 74lines 13-24 and p. 87 lines 1 - 10

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.9

4 14 Mark Cohen 805 W. lOth Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney for Contestant Dr. Laura Pressley

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.JO

4 15 22.

23. CERTIFICATE OF SERICE

This is to certifY that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on May 25,2015 on counsel of record as follows:

Charles 'Chuck' Herring Jr. 09534100 cherring@herring-irwin.com Jess Irwin- 10425700 j ess@herring-irwin. com Lauren Ross - 24092001 laurenbross@herring-irwin.com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580

Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 Phone: (512) 476-6000 Fax: (512) 476-6002 ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR

Jessica Belinda Palvino McGINNIS, LOCHRIDGE & KILGORE LLP 600 Congress A venue Suite 2100 Austin, TX 78723 Phone: 512-495-6000 Fax: 512 495-6093 jpalvino@mcginnislaw.com

David A. Escamilla

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.ll

4 1 Travis County Attorney Sherine E. Thomas Andrew M. Williams Patrick M. Kelly Assistant County Attorneys Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767 Phone: (512) 854-9472 Fax: (512) 854-4808 email: Sherine. Thomas@traviscountytx. gov, Pat.Kelly@traviscountytx. gov, andrew. williams@traviscountytx. gov

Pressley v. Casar, Contestant's Response to Third Party Protective Order p.l2

4 17 6/5/2015 11 :44:20 AM Velva L. Price District Clerk Travis County NO. D-I-GN-15-000374 D-1-GN-15-000374

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § 201ST JUDICIAL DISTRICT § GREGORIO "GREG" CASAR § Contestee § 201ST JUDICIAL DISTRICT § § NOTICE OF WITHDRAWAL AS CO-COUNSEL

TO THE HONORABLE JUDGE OF SAID COURT:

1. Comes now David Rogers, attorney of record for Contestant Laura Pressley, and notices this court that he has withdrawn as co-counsel.

2. Contestant notified attorney David Rogers in writing on June 3, 2015 that his services have been terminated.

3. As such, attorney Rogers cannot appear before this court or correspond with this court or with any party to this suit in any capacity that purports to represent Contestant's interests.

4. At the time of filing of this Notice, attorney Mark Cohen continues to represent Contestant Laura Pressley as lead counsel.

5. Attorney Rogers would respectfully request this court direct all filings, correspondence and other communications to lead counsel Mark Cohen at his address and phone number on file with the court.

13 RESPECTFULLY SUBMITTED,

LAW OFFICE OF DAVTD ROGERS

By: Is/ David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836- Telephone 512-201-4082- Facsimile Email: Firm(qiDARogersLaw.com

This is to certify that a true and correct copy of the foregoing Notice has been served in accordance with the Texas Rules of Civil Procedure on June 5, 2015 on counsel of record as follows:

Charles 'Chuck' Herring Jr. 09534100 cherring(ii{herring-irwin.com Jess Irwin- 10425700 j ess@herring-irwin. com Lauren Ross - 24092001 laurenbross(il:{herring-irwin.com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580

Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive,# 310 Austin, Texas 78731 Phone: (512) 4 76-6000 Fax: (512) 476-6002 ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR

Jessica Belinda Palvino McGINNIS, LOCHRIDGE & KILGORE LLP 600 Congress A venue

14 Suite 2100 Austin, TX 78723 Phone: 512-495-6000 Fax: 512 495-6093 jpalvino@mcginnislaw.com

David A. Escamilla Travis County Attorney Sherine E. Thomas Andrew M. Williams Patrick M. Kelly Assistant County Attorneys Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767 Phone: (512) 854-9472 Fax: (512) 854-4808 email: Sherine. Thomas@traviscountytx. gov, Pat.Kelly@traviscountytx.gov, andrew. williams@traviscountytx. gov

15 6/15/2015 11 :53:52 AM Velva L. Price District Clerk Travis County D-1-GN-15-00037 4 No. D-1-GN-15·00.0374

LAURA PRESSLEY, § IN THE DISTRICT COURT Contestant, § § v. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR, § Contestee. § 20.1st JUDICIAL DISTRICT

NOTICE OF ACCELERATED APPEAL

TO THE HONORABLE COURT:

NOW COMES, Laura Pressley, Contestant herein and give notice of her intent

to appeal the trial court's judgment rendered on May 26, 2015 by accelerated appeal.

This accelerated appeal is taken to the Third Court of Appeals, in Austin, Texas. This

appeal does not pertain to a parental termination or child protection case as defined

in Appellate 28.4.

Mark r-n''"'"""" SBN: 04508400 805 W. 1oth Street, Suite 100 Austin, Texas 78701 (512) 474-4424 Phone (512) 472-5444 Facsimile mark@cohenlegalservices.com

5224 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing has been served by efile and/or facsimile to the following persons on this 15th day of June, 2015.

Charles 'Chuck' Herring Jr. Jess Irwin Lauren Ross Herring & Irwin, L.L.P. 1411 West Avenue, Suite 100 Austin, TX 78701 (512) 320-0665 Telephone (512) 519-7580 Facsimile cherring@herring-irwin .com jess@herring-irwin.com

Jessica Palvino McGinnis, Lochridge and Kilgore, LLP 600 Congress, Suite 2100 Austin, Texas 78701 (512) 495-6079 Telephone (512) 505-6379 Facsimile jpalvino@mcginnislaw.com

Kurt Kuhn KUHN HOBBS PLLC 3307 Northland Drive,# 310 Austin, Texas 78731 (512) 476-6000 Telephone (512) 476-6002 Facsimile kurt@kuhnhobbs. com

5225 FILE COPY

COURT OF APPEALS Filed In The District Court THIRD DISTRICT OF TEXAS ofT avis Cornty, Texas PO.BOXI2547,AUSTIN,TEXAS78711-2547 on ._ b 1 Z..0tS'" .M A:Jt www.txcourts.gov/3rdcoa.aspx (512) 463-1733 O . 3 . . l!:."" Velva L. Price, District Clerk JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE June 16,2015

Mr. Charles Herring, Jr. Mr. Mark A. Cohen Herring & Irwin LLP Law Office of Mark A. Cohen 1411 West Avenue Suite I 00 805 West 10th Street Suite 100 Austin, TX 78701 Austin, TX 78701 *DELIVERED VIA E-MAIL* *DELIVERED VIA E-MAIL*

RE: Court of Appeals Number: 03-15-00368-CV Trial Court Case Number: D-1-GN-15-00037 4

Style: Laura Pressley v. Gregorio "Greg" Casar

Dear Counsel: The Court has been advised that appellant has given notice of appeal. The cause in this Court will bear the number and style shown above. If appellant has not already done so, he must make a written request to the clerk and the court reporter and make arrangements for payment of the record within ten days of the receipt ofthis notice. See Tex. R. App. P. 34.6(b)(l).

Very truly yours,

JEFFREY D. KYLE, CLERK

Courtland Crocker, Deputy Clerk

cc: Ms. Mary Lou Taylor The Honorable Velva L. Price

1111111111111111111111111111111111111111111111111111111 004077088

5226 6/17/2015 10:48:35 AM Velva L. Price District Clerk Travis County NO. D-I-GN-lS-000374 D-1-GN-15-000374

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR § Contestee § 201 st JUDICIAL DISTRICT

CONTESTEE GREG CASAR'S REPLY TO DAVID ROGERS' RESPONSE TO CONTESTEE'S MOTION FOR SANCTIONS

TO THE HONORABLE JUDGE DAN MILLS:

Gregorio "Greg" Casar ("Casar") files this reply to David Rogers' Response to

Contestee's Motion for Sanctions and would show as follows:

1. Rogers Misstates the Standard for Chapter 10 Sanctions

Contestee Casar seeks relief under Chapter 10 of the Texas Civil Practice and Remedies

Code. He does not seek sanctions under Texas Rule of Civil Procedure 13, and Rogers'

Response confuses the two standards. Contestee's burden is not, as Rogers asserts, to prove that

the Contestant's pleadings were "groundless," or brought for an "improper purpose." See Reply

at 5-7. This is the standard under Texas Rule of Civil Procedure 13. A different test applies

under Chapter 10 of the Civil Practices and Remedies Code, the authority under which Contestee

seeks sanctions.

Under § 10.001, the signer of a pleading or motion certifies that "each claim, each

allegation, and each denial is based on the signatory's best knowledge, information, and

belief, formed after reasonable inquiry." Low v. Henry, 221 S.W.3d 609, 614 (Tex.

2007)(emphasis in original) (upholding sanctions under CPRC Chapter 10 against an attorney

who plead that two doctors provided or prescribed a certain drug to the plaintiff, in spite of

2020 information to the contrary in the plaintiff's medical records which the attorney possessed); see

also Tex. Civ. Prac. & Rem. Code 10.001(2)-(3) (referring to "each claim" and "each

allegation"). Casar is not required to show bad faith or malicious intent by Rogers. He must only

show that Rogers certified he made a reasonable inquiry into all of the allegations when he did

not and that he certified that all the allegations in the petition had evidentiary support when some

allegations did not. Low, 221 S.W.3d at 617. A reasonable inquiry is that amount of examination

that is reasonable under the circumstances of the case. Softech Int'l, Inc. v. Diversys Learning,

Inc., No. 03-07-00687-CV, 2009 WL 638203, at *5 (Tex. App. Mar. l3, 2009) (citing Robson v.

Gilbreath, 267 S.W.3d 401, 406 (Tex.App.-Austin 2008, pet. denied)). The trial court must

examine the facts and circumstances as they existed when the pleadings were filed, and

determine what information the plaintiffs did and could discover before filing suit. Softech Int'l,

2009 WL 638203 at *5 (citing Armstrong v. Collin Co. Bail Bond Bd., 233 S.W.3d 57, 63

(Tex.App.-Dallas 2007, no pet.)).

The relevant portions of Section 10.001 state that:

"The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory's best knowledge, information, and belief, formed after reasonable inquiry:

. . . (2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery .... "

2021 Thus, § 10.001(2) addresses legal contentions, and § 10.001(3) addresses factual

allegations. Section 10.001(2) applies only to counsel, Mr. Rogers, and § 10.001(3) applies to

both Ms. Pressley and Mr. Rogers.

II. Rogers Failed to Make a Reasonable Inquiry into the Claims and Legal Contentions Asserted under 10.001(2)

Rogers repeatedly, throughout six separate Contests, made the legal contention that a

"ballot image" differs from a "cast vote record." See Original Contest at 32-38; Second

Amended Contest at 31-37; Third Amended Contest at 43-53; Fourth Amended Contest at

43-53; Fifth Amended Contest at 49-59; Sixth Amended Contest at 3, 13,82,84,97-

138. In his reply, he attempts to justify these contentions by claiming that he reasonably relied on

several sources. See Rogers' Response at As an initial matter, Rogers did not cite most these

supposed legal sources until the Sixth Amended Contest and therefore could not have relied on

them for the first five Contests he filed. Furthermore, a close examination of these sources

reveals that Rogers failed to make a reasonably inquiry into his claim that a Ballot Image differs

from a Cast Vote Record.

Simply put, Rogers' inquiry was not reasonable. He ignored an abundance of controlling

and persuasive legal authority from the Texas Secretary of State, Election Assistance

Commission, and Travis County, which define ballot image and cast vote record as synonymous.

See, e.g., Contestee's Motion/or Summary Judgment at Ex. 15, U.S. Election Assistance

Commission Glossary of Key Election Terminology (2007) at 10; Ex. 16, Memo from Keith

Ingram, Electronic Voting System Procedures, (April 1,2014). He also ignored the letters that

the Secretary of State's Election Administrator sent to Ms. Pressley, before suit was filed,

expressly stating that the Travis County Clerk had printed ballot images. See Contestee's

2022 Amended Motion for Summary Judgment, Ex. 6, Letter from Texas Secretary of State Director

of Elections Keith Ingram to Pressley (Jan. 20,2015); Ex. 7, Letter from Texas Secretary of State

Director of Elections Keith Ingram to Pressley (Jan. 27,2015).

Instead, he pieced together unrelated and outdated excerpts from the Election Code, the

Texas Constitution, and various other sources. See Rogers' Response at The chart below

analyzes the evidence upon which Rogers claims he relies, and the reasons why his reliance on

these authorities is unreasonable.

Source Reliance is Unreasonable Because ...

Tex. Elec. Code § 124.063; These authorities do not state that a cast vote record Texas Election Code § 12S.001(a) differs from a ballot image. Moreover, Rogers' Texas Election Code Chapter 52; Texas citation to these sections is selective and he ignores Constitution Article 6, Sec. 4 other, clearly applicable authority to the contrary. For example, Texas Election Code § 52.075 gives the Secretary of State authority to prescribe the form and content of ballots for electronic voting machine. Similarly, § 129.002 of the Election Code gives the i , Secretary of State the authority to implement Direct Recording Electronic voting systems, like the Hart Intercivic System, that utilize Cast Vote Records.

1990 Federal Election Commission Rogers did not cite these supposed legal sources Performance and Test Standards until the Sixth Contest.

The 1990 report is outdated and was superseded by a 2002 report from the FEC. Rogers failed to consider the more recent definition from the FEC, which does define a ballot image in a way that includes a CVR. See Contestant's Response to Summary Judgment at Ex. A-S, pages 2-21. The 2002 standards define ballot image as "an electronic record of all votes cast by the voter." Id.

Furthermore, the Election Assistance Commission, not the Federal Election Commission, is the appropriate governing agency._The FEC enforces campaign finance laws. The EAC provides guidance on election administration. The Election Assistance Commission has unequivocally defined "ballot

2023 image" as synonymous with "CVR."

Source Code review of the Hart Intercivic Rogers did not cite this supposed legal source until voting system the Sixth Contest.

The California Source Code review does not distinguish a ballot image from a cast vote record or provide any direct support for Roger's contentions. Even if did, however, an analysis conducted more than seven years ago by a foreign Secretary of State is not controlling and would have minimal persuasive effect, especially if it directly contradicted the Texas Secretary of State's definition. Travis County has used the eSlate system since 2002 without incident.

Jacobson's Expert Declaration Jacobson had not made his declaration or been designated as an expert at the time the most of Rogers' legal contentions were made, therefore Rogers' could not have reasonably relied on his opinions. Softech Int'l, 2009 WL 638203 at *5 (citing Armstrong v. Collin Co. Bail Bond Bd., 233 S.W.3d 57, 63 (Tex.App.-Dallas 2007, no pet.)) (holding that the trial court must examine the facts and circumstances as they existed when the pleadings were filed). In any event, he had zero qualifications in election technology and was not a legally competent or qualified source.

A review ofthe totality oflegal authorities available to Rogers reveals that he did not

conduct a reasonable inquiry before making his legal contention that a ballot image differs from

a Cast Vote Record. TEX. Cry. PRAC. & REM. CODE 10.001. This contention was not warranted

by existing law nor was there a nonfrivolous argument for the extension, modification, or

reversal of existing law or the establishment of new law. TEX. Crv. PRAC. & REM. CODE

10.001(2). His failure to conduct such an inquiry is sanctionable. TEX. Cry. PRAC. & REM. CODE

10.001, 10.004.

2024 III. Rogers Failed to Make a Reasonable Inquiry into the Factual Allegations and Contentions Under § 10.001(3)

Rogers also failed to make a reasonable inquiry concerning the factual allegations. The

Texas Supreme Court held that the pleading party must meet the pleading-certification

requirements separately for each allegation: "[ e]ach allegation and factual contention in a

pleading or motion must have, or be likely to have, evidentiary support after a reasonable

investigation." Low, 221 S.W.3d at 612.

In the present case, the Court granted Mr. Casar's no-evidence summary judgment

motion. Thus, the Court has already held that Ms. Pressley failed to present evidence raising a

genuine issue of material fact. This ruling shows that Ms. Pressley failed to meet the § 10.001(3)

evidentiary-support requirement.

Even apart from the summary judgment, however, the evidence for Ms. Pressley's

relevant allegations is non-existent. Many of Ms. Pressley's allegations are nothing more than

unsupported suspicions. Suspicions are not evidence. Softech Int'l, Inc. v. Diversys Learning,

Inc., No. 03-07-00687-CV, 2009 WL 638203, at *4 (Tex. App. Mar. 13,2009) (citing

Continental Coffee Prod. Co. v. Cazarez, 937 S.W.2d 444,450 (Tex. 1996); Litton Indus. Prod.,

Inc. v. Gammage, 668 S.W.2d 319,324 (Tex. 1984)) (holding that "when circumstances

surrounding an action are consistent with more than one inference and nothing shows that one

inference is more probable than the other, the circumstances constitute mere suspicion, and not

legally cognizable evidence.") In Softech, for example, the Austin Court of Appeals upheld an

award of sanctions against an attorney who failed to perform a reasonable factual inquiry before

filing suit. Id. In so holding, the Court chastised the Plaintiff, stating that:

2025 "[Plaintiff] confuses mere suspicion with circumstantial evidence. The circumstances .... could be sufficient to arouse suspicion, but do not rise to the level of circumstantial evidence. The civil practice and remedies code requires that potential plaintiffs conduct a "reasonable inquiry" to determine if there is any evidence to support their suspicions before filing suit ... [Plaintiff] skipped this crucial step."

Id. at *5.

Like the Plaintiff in So/tech, Ms. Pressley and her legal team failed to conduct a

reasonable inquiry to determine if there was any evidence supporting their suspicions before

filing suit. The chart below lays out some of the factual allegations asserted by Ms. Pressley and

Mr. Rogers, and the evidence showing that a reasonable inquiry was not made into the accuracy

of these facts before pleading them.

Pressley Allegation Facts Establishing No Reasonable Inquiry

Widespread and "illegal" voter In her deposition, Ms. Pressley admitted that she disenfranchisement occurred as a result of could not identify a single voter who was prevented a consolidation in voting locations, from voting based on the change in voting location. resulting in a "conservative count" of See Contestee's Amended Motion for Summary 1,108 disenfranchised voters. Original Judgment at Ex. 8, Pressley Deposition pp. 114-15. Contest at 13; Second Amended Contest 13; Third Amended Contest at 12- She also claimed that if a voter had to drive only 20 23; Fourth Amended Contest at 12-23; seconds to a new voting location, that 20-second Fifth Amended Contest at 12-29. drive would constitute voter disenfranchisement. See Contestee's Amended Motion for Summary Judgment at Ex. 8, Pressley Deposition pp. 100-101. That is nonsense, and Pressley has no legal support for that odd notion.

Pressley or her counsel apparently realized that they had no factual support for this assertion, and dropped it from their Sixth Amended Contest.

Travis County election officers "instructed This is a false and misleading assertion. As Ms. election officials" to not print zero tapes or DeBeauvoir explained in her deposition, results results tapes on election day. Original tapes were printed on election day. But, on election Contest at 14; Second Amended Contest day, results tapes are called by a different name - 11, 14; Third Amended Contest at "access codes" - not results tapes. See Contestee's 35; Fourth Amended Contest at 35; Fifth Amended Motion for Summary Judgment at Ex. 25, Amended Contest at 41; Sixth Amended DeBeauvoir's deposition p. 126-27.

2026 Contest at 8, 42, 43, and 64. By falsely claiming that the County did not print "results tapes" on election day, Pressley was attempting to mislead this Court into believing that the County somehow failed to comply with the Election Code.

Similarly, Ms. Pressley's claim that no zero tapes were printed is false and misleading. Ms. Pressley testified that didn't know if zero tapes were printed, where they were printed, or when. See Pressley Deposition, p. 134. Thus, she had zero factual support for her statement when she made those allegations in the Contests. Furthermore, MS.DeBeauvoir explained in her deposition that zero tapes were printed before the election, as required by the Secretary of State. See Contestee's Amended Motion for Summary Judgment at Ex. 25, DeBeauvoir's deposition p. 125-26. In fact, Ms. Pressley and her legal team attached a Zero Tape to her Sixth Contest. See Exhibit C to Pressley's Sixth Contest.

Travis County Director of Elections Ms. Pressley claims that Mr. Winn violated on Michael Winn committed a criminal Texas Election Code Section 33.061 1 by not violation by not allowing Pressley and her allowing her and her poll watchers to view the source and properties of the CVR files during the poll watchers to view the source, recount. See Sixth Contest, 93 and 94. Under properties, and copying of the CVR files. Election Code § 213.016, Ms. Pressley and her poll See Sixth Contest, 93 and 94 watchers were allowed to be present for the printing of the CVRs. However, nothing in the Election Code authorizes Ms. Pressley or her poll watchers to view the source and properties of the CVR files, such as dates of the CVR files and origination. The factual statement that Mr. Winn committed a criminal violation is false and unsupported.

1Texas Election Code Sec. 33.061, UNLAWFULLY OBSTRUCTING WATCHER, provides that "(a) A person commits an offense if the person serves in an official capacity at a location at which the presence of watchers is authorized and knowingly prevents a watcher from observing an activity the watcher is entitled to observe. (b) An offense under this section is a Class A misdemeanor."

2027 CONCLUSION

Contestee Casar respectfully requests that this Court grant his motion for sanctions,

award him the remedies provided by Texas Civil Practices and Remedies Code Chapter 10, and

any additional relief to which he is entitled.

MCGINNIS, LOCHRIDGE AND KILGORE LLP 600 Congress, Suite 2100 Austin, TX 78701 (512) 495-6079 (512) 505-6379 - Facsimile

Jessica Palvino - 24048780 jpalvino@mcginnislaw.com

Charles Herring, Jr. State Bar No. 09534100 cherring@herring-irwin.com Lauren Ross State Bar No. 24092001 laurenbross@gmail.com HERRING & IRWIN, L.L.P. 1411 West Avenue, Suite 100 Austin, Texas 78701 (512) 320-0665 (512) 519-7580 FAX

Kurt Kuhn - 24002433 KUli@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002 - Facsimile

ATTORNEYS FOR CONTESTEE GREGORIO "GREG" CASAR

2028 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document has been delivered to Mr. David A. Rogers, Law Office of David Rogers, 1201 Spyglass Drive, Suite #100, Austin, Texas 78746 and to Mr. Mark Cohen, 805 W. 10th Street, Suite 100, Austin, Tx. 78701 by electronic service through the electronic filing manager, or if counsel is not registered with the electronic filing manager, by email, on this 17th day of June, 2015.

2029 Filed In Tbe Dlstrict Court of Travis County, Texas APR 13 2015 At ?: CAUSE NO. D-1 15-000374 Velva L. Prlce;Olstrlf) Clerk

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR § Contestee § 20lst JUDICIAL DISTRICT

On April 6, 2015, Contestant, Contestee and Travis County Clerk and Voter Registrar came before the Court. After considering Motion Protective Order and Motion for Third Party Discovery Control Plan, the Court finds that the County Clerk and Voter Registrar's Motion is meritorious in part. It is therefore ORDERED ; Travis County Clerk and Voter Registrar's Objections to Contestant's discovery requests are ,TAINED in part and Motion for a Third Party Control Plan is GRANTED in part as follows:

1. Travis County Clerk and Travis County Voter Re shall respond to requests for production by April20, 2015, as limited by this Court's ruling on below.

2. To the extent that voter information is available a publicly accessible website, Travis County shall provide to Contestant the appropriate specific address. To the extent that information is not publicly available, Travis County shall produce for inspection and copying voter registration data. This is subject to Contestant's disclosure of as addressed in paragraph 11.

3. To the extent that Travis County contends : data requested is proprietary or they are contractually prohibited from turning over that data, ' County is ordered to turn over the contracts providing the basis for such objections for and copying. Travis County shall not be required to produce access to proprietary or inspection of direct recording electronic voting machines, eStates, judge's booth controllers, or hardware used in conjunction with the eSlate system.

4. The County shall produce as soon as practicable Cast Vote Records for the December runoff for District 4 for inspection and copying.

5. The County shall produce all records showing machines were used in the November and December elections, including voting machines, le Ballot Boxes, Judge's Booth Controllers, Direct Record Electronic machines, Ballot Now or any other machines used to count votes or ballots in the November election and December 1 including but not limited to those reports produced for the Texas Secretary of State's office to reporting requirements and requests.

6. To the extent the County makes copies, it shall the copy costs at the rate of$ .50 per page.

Case# 0-1-GN-15-000374 ....

\\II\ It II\ I\ II\II \\\\1 \1\\I \Ill\ tilIIIII\1 \til llll 003978729 2 44 3 7. The County shall produce all documents required wi lin 15 days of the hearing on discovery, with the following exceptions: results of Logic and Ace : y Testing shall be produced as soon as practicable and the previously produced cast vote rec :rds shall be made available immediately on request. ,

8. Travis County shall not be required to produce emai : , memos, correspondence, or text messages regarding communication regarding the election withou: specificity as to the email and basis for that request. Travis County, to the extent known. shall pr ; ide emaHs, memos, correspondence or text messages regarding the December 16, 2014 runoff elec: on as it relates to any known issues relating to any type of failure or operating issues as to the elec: onic voting machines. Travis County shall not be required to produce documents or communi' ations (including reports, emails, memos, correspondence, text messages. IM' s, video conferenci ! g or power points) regarding the election or eSlate system, its components and the related perso; I, access, location, security, programing, training, maintenance, operation, capacity or warranties.!

9. The County shall produce all incident logs and ot :er reports that show problems it is aware of with regard to the November election and runoff. '

10. The scope of Discovery shall be limited to the A tin City Council District 4 December 2014 I • I runoff and subsequent recount, except as otheiWise ord : d. I

11. However, responses to those requests which seek i dividual voter information or documentation 1

regarding poll watchers shall be due no sooner than/ 10 days after the Contestant identifies the individuals, either in a separate document or in h : amended pleading to be filed in response to the Court's order on Contestee's special exceptions; , o the extent possible, Travis County should provide information on request regarding individual vq ers alleged to have voted illegally as soon as practicable due to the expedited nature of this matter. I

12. The Travis County Clerk shall make the Cast Records or "CVRs" for each vote cast in the December Runoff available to the parties for inspectio 1 no later than April 16, 2015. The parties and 1 the Travis County Clerk are ordered to establish a utually agreeable time for the inspection of records which is to take place at 5501 Airport Blvd, A :tin, TX 78751.

13. The Travis County Clerk and/or Travis County : oter Registrar may object to any remaining requests and provide statutory cites or other law as the : asis for those objections. I

14. IT IS SO ORDERED.

44 4 Page 46 iDepos Prepared for sherine.thomas@traviscountytx.gov

1 is that correct?

3 Q. Yes. Okay. It certainly isn't Exhibit 10 that

4 they see.

7 Q. Okay. They do see Exhibit 10 when they vote? ' 8 _L _l ___ :

13 Q. So it

16 Q. Okay. So if I when I go in and I decide who

17 to vote for and I mark who I vote for, then the computer

18 says, "This is who you vote for. Are you sure you want

19 to vote for them?" Is

20 e

21 Q. that correct?

http y.pdf-it.com/idepos/

3 44 5 Page 47 iDepos Prepared for sherine.thomas@traviscountytx.gov

10 C' .L '·_.) -i ·--'-·

y.pdf-it.com/idepos/

44 From: Mark Cohen To: Charles Herring; "Dan l\1ills"; Warren Vavra Cc: Andrew Williams; firm(mdarogerslaw.com; Sherine Thomas; Pat Kelly; "Lauren Ross"; "Kurt Kuhrl"; "Palvino, Jessica B." Subject: RE: Pressley - Casar Date: Friday, April 24, 2015 1:46:34 PM

I will review the discovery docs and your agreement to stipulate to the ad111issibility of the county's production. If I think I need any other testimony from the county to respond to your motion I will ask you to stipulate to it and if you feel that you cannot do that I will do my job as an attorney and get the evidence I think I need in admissible form and assert my right to do so before a summary judgment is set or considered. That is the best I can do to accommodate everyone's goal to expedite a final decision while still doing so based on all the available evidence

Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512R472-5444 (f) Ma rk@cohen !ega lservices.com www. CohenLegal Services .com

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CONFIDENTIALITY NOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer.

TREASURY DEPARTMEf\JT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Charles Herring [mailto:cherring@herring-irwin.com] Sent: Friday, April 24, 2015 1:40PM To: Mark Cohen; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar

4 44 7 Whether you depose Ms. DeBeauvoir will be up to you, her, the County, and the Court. I was just pointing out that based on the only two reasons you have given thus far for deposing her, the deposition appears unnecessary.

From: Mark Cohen [mailto:markCwcohenlegalservices.com] Sent: Friday, April 24, 2015 1:33 PM To: Charles Herring; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar

Thank you for that stipulation I will prepare one for the response to the rnsj. That will shorten the deposition somewhat. However I have my reasons for wanting a deposition and it certainly is not to delay resolution of this matter past July 20. I am certain you would never let an opposing counsel tell you when you need to take a deposition either

Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512•474a4424 512-472H5444 (f) Ma rk@cohen !ega lservices.com www.CohenLegalScryices.com

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COI\IFIDENTIALITY i'JOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer.

TREASURY DEPAR.TMENT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Charles Herring [mailto:cherring@herring-irwin.com] Sent: Friday, April 24, 2015 1:29PM

44 8 To: Mark Cohen; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar

We agree to stipulate in advance to the authenticity of any document that Travis County produces, f\]o deposition is necessary for that. Given that the Secretary of State, the County Clerk, the City Clerk, and the United States Election Commission all say exactly the same thing-that for electronic voting a Cast Vote Record is a ballot image--we can stipulate to that. Pressley filed for the recount on the last possible day, then filed suit the last possible day (1/30), and then failed to serve Casar until 2/10. The general election was November 4, six rnonths before the early May hearing date. Six months after the election is the opposite of "speed" for an election contest. In many instances, trial of an election contest has to be set within 5 days after the filing of an answer. Election Code sec. 232,012(d), --Chuck Herring

From: Mark Cohen [mailto:mark@cohenlegalservices.com] Sent: Friday, April 24, 2015 1:02PM To: 'Dan Mills'; 'Warren. Vavra'; Charles Herring Cc: 'Andrew Williams'; firm@darogerslaw,com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar

Dear .Judge Mills: We will need to take the deposition of Travis County clerk before we can be prepared to respond We have third party discovery from them but we will need admissible testimony to get them admitted . we also need admissible testimony from them that the cvr's are the only document they have to meet the image of ballot cast requirement, Sheri, the county attorney in charge is out until next week. As I told Mr. Herring I will be contacting Sherri and him for a mutually convenient date to take the depositions and then we have of course the printing of the deposition and the time for the deponent(s) to read and sign and I will need time to prepare a response to the Motion. The phantom need asserted to move this case so fast that it prejudices my client's chance to fairly present the case is strongly objected to and it just unnecessarily creates additional grounds for necessitating an appeal which will delay the final decision even more, The pendency of this case is having no more of an effect on Mr. Casar that every litigant waiting for the procedures of a trial to work their way and there is no evidence that the city is being adversely effected in any way. Frankly Mr, Herring's tactical efforts to prevent Ms, Presley from having a fair opportunity to provide you with all of the admissible evidence just affirms how important it is that I have the time to provide it to you. Given the trial is not until July 20 Ms. Pressley will object to any shortening of her time to respond and notice of hearing that is less than the 21 days required by the rules and ignores our right to conduct reasonable discovery before being required to respond to a Motion for Summary .Judgrnent. Let's not sacrifice fairness for speed. I respectfully request that the Motion be set 21 days or more after I receive the deposition of the county clerks in form that is not subject to objection(it is signed or signature is waived or excused) necessary to have my evidence to meet the Summary Judgment allegations. As in most case some of the evidence if not most of it comes from other sources so it is not frivolous to take depositions to obtain it from the source that will satisfy the rules of evidence as to admissibility, My client is anxious to get the facts out and obtain a final

44 resolution as anyone since she is the one who is being deprived of an election with a true outcome. The city council and Mr. Casar are proceeding quite efficiently as if this case had never been filed

Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512R474M4424 512a472M5444 (f) Ma rk@cohenlega lservices.com www.CohenLegalServices.com

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CONFIDENTIALITY NOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer.

TREASURY DEP.L\RTMENT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication {including any attachrnents) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any transaction or matter addressed herein.

4500 EXHIBIT Page 1 (Pages 1-4) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 1 Page 3 NO. D-1-GN-15-000374 I FOR THE CONTESTEE, GREGORIO "GREG" CASAR: 2 LAURA PRESSLEY IN THE DISTRICT COURT 2 CHARLES HERRING, JR. Contestant 3 HERRING & IRWIN, L.L.P. 3 1411 West Avenue 4 vs. TRAVIS COUNTY, TEXAS Suite 100 5 4 Austin, Texas 78701 6 512.320.0665/512.519.7580 (fax) GREGORIO 11 GREG 11 CASAR 5 cherring@herring-irwin.com 7 Contestee 201ST JUDICIAL DISTRICT 6 -and- 8 ****************************************** 7 JESSICA PALVINO 9 ORAL DEPOSITION OF MCGINNIS LOCHRIDGE 8 600 Congress Avenue, Suite 2100 10 DANA DEBEAUVOIR Austill, Texas 78701 78701 II MAY 11, 2015 9 512.495.6079/512.505.6379 (fax) 12 jpalvino@mcginnislaw.com 10 13 11 14 ORAL DEPOSITION OF DANA DEBEAUVOIR, produced as 12 ALSO PRESENT: 15 a witness at the instance of the Contestee GREGORIO 13 Laura Pressley, Ph.D. 16 11 GREG 11 CASAR, and duly sworn, was taken in the Abbe Waldman 14 17 above-styled and numbered cause on May 11, 2015, from 15 18 9:44a.m. to 12:24 p.m., before KATHERINE A. BUCHHORN, 16 19 Certified Shorthand Reporter in and for the State of 17 18 20 Texas, reported by machine shorthand, at the offices of 19 21 County Clerk 1 s Courthouse Conference Room, Room 222, 20 22 Heman Marion Sweatt Courthouse, 1000 Guadalupe, Austin, 21 22 23 Texas 78701, pursuant to the Texas Rules of Civil 23 24 Procedure and the provisions stated on the record or 24 25 attached hereto. 25

Page 2 Page 4 I APPEARANCES 1 INDEX 2 3 FOR THE CONTESTANT: 2 PAGE 4 MARKCOHEN 3 Appearances. . . . . . . . . . . . . . . . . 2 THE LAW OFFICES OF MARK COHEN & ROSE COHEN 4 Exhibits . . . . . . . . . . . . . . . . . . 5 5 805 W. I Oth Street 5 Requested Infom1ation. . . . . . . . . . . . 7 Suite 100 6 Austin, Texas 78701 6 Stipulations .......... , . . . . . 8 512.474.4424/512.472.5444 (fax) 7 7 mark@cohen1ega1services. com DANA DEBEAUVOIR 8 8 9 FOR THE DEPONENT, DANA DEBEAUVOIR: 9 Examination by Mr. Herring ........ . 9 10 SHERINE E. THOMAS DIRECTOR LITIGATION DIVISION-TRAVIS COUNTY Examination by Mr. Cohen ......... . 40 11 314W.11thStreet 10 Further Examination by Mr. Herring .... . 128 Austin, Texas 78701 11 12 512.854.9513/512.854.4808 (fax) Reporter's Certificate. . . . . . . . . . . 132 sherine. thomas@traviscountytx.gov 13 12 -and- 13 Changes and Signature........... . 135 14 14 ANDREW M. WILLIAMS 15 15 ASSISTANT COUNTY ATTORNEY -TRAVIS COUNTY 314 W. 11th Street, Suite 500 16 16 Austin, Texas 7870 I 17 512.854.9513/512.854.9472 (fax) 18 17 andrew. williams@traviscountytx. gov 19 18 19 20 20 21 21 22 22 23 23 24 24 25 25

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4543 Page 2 (Pages 5-8) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 5 Page 7 I EXHIBITS 2 NO. DESCRIPTION PAGE I DOCUMENTS/INFORMATION REQUESTED 3 I 9 (OR MAY BE REQUESTED) Travis County Clerk Dana DeBeauvoir 4 2 Curriculum Vitae 5 2 -- NO. DESCRIPTION PAGE ***NOT INTRODUCED *** 3 6 3 . 21 1 . ................... 74 7 Election Advisory No. 2012-03 4 Names of tally administrators 8 4 22 Electronic Voting System Procedures 5 2 .................... 75 9 Name of tally administrator making 5 . 23 6 specific entry 10 Glossary of Key Election Terminology- 2007 7 3 .................... 87 II Names of people more familiar with 6. 51 12 eSiate Voting System- About the eSlate 8 Audit Log Voting System 9 13 10 7 44 14 By-Mail Ballot example 11 15 8 45 12 By-Mail Ballot example 16 13 9 -- 14 17 ***MARKED- NOT INTRODUCED or PROVIDED TO REPORTER*** 15 18 16 10 . 42 17 19 Votes by Precinct- JBCs Election Day GR!4, Precinct 133C 18 20 19 II 119 21 District 4 Runoff Cast Vote Record 20 Recount files Meta-Data- Date Modified 21 22 22 12 . 56 23 Audit Log- Official, Travis County 23 December 16 2014 Joint Special Runoff 24 24 Election 25 25

Page 6 Page 8 I EXHIBITS I STIPULATIONS 2 NO. DESCRIPTION PAGE 3 13 54 2 GR14 City of Austin Manual Recount of 3 The attorneys for all parties present stipulate and 4 District4 5 14 -- 4 agree to the following items: ***NOT MARKED*** 5 6 15 -- 6 The deposition of DANA DEBEAUVOIR is taken pursuant 7 ***NOT MARKED*** to Notice; 7 8 16 .................... 129 Precinct 133 Voters- December 16, 2014 8 9 Voting location: Memorial United 9 That all objections will be made pursuant to the Methodist Church 10 10 Texas Rules of Civil Procedure; 17 130 II II Precinct 142 Voters- December 16, 2014 Voting location: Travis County Airp01t 12 That the original transcript will be submitted for 12 Offices 13 18 130 13 signature to the witness' attorney, SHERINE E. THOMAS, Precinct 209 Voters- December 16, 2014 14 and that the witness or the witness' attorney will 14 Voting location: Grant AME Worship Center 15 return the signed transcript to Sympson Reporting within 15 16 20 days of the date the transcript is provided to the 19 . 130 16 Precinct 258 Voters- December 16, 2014 17 witness' attorney. If not returned, the witness may be Voting location: Walnut Creek Elementary 18 deemed to have waived the right to make the changes, and 17 20 130 19 an unsigned copy may be used as though signed. 18 Precinct 260 Voters- December 16,2014 20 Voting location: Lanier High School 19 21 20 22 21 22 23 23 24 24 25 25

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I PROCEEDINGS A. It would be thousands. It would be thousands 2 THE REPORTER: Are there any special 2 of candidates. 3 stipulations today or just by the Rules? 3 Q. You have great experience in elections. 4 MR. COHEN: Just regular stuff 4 A. Yeah. 5 (Witness swom.) 5 Q. All right. And you've also won, I see from 6 DANA DEBEAUVOIR, 6 your resume, awards from various bodies, local and 7 having been first duly swom, testified as follows: 7 national, for your work in elections. 8 EXAMINATION 8 A. Yes. 9 BY MR. HERRING: 9 Q. Is that a fair statement? 10 Q. Would you state your name for the record? 10 A. Yeah. II A. My name is Dana DeBeauvoir. II Q. And I need you to answer out loud -- 12 Q. And Ms. DeBeauvoir, you are the county clerk of 12 A. Yes. 13 Travis County, right? 13 Q. --so we can make sure we have it. 14 A. Travis County Clerk. 14 Let me just see. One of them was the 15 (DeBeauvoir Exhibit No. I marked) 15 National Association of County Recorders, Election 16 Q. (BY MR. HERRING) And let me hand you a copy of 16 Officials and Clerks. 17 what I have marked as Exhibit 1, which I believe is your 17 A. Yeah. 18 resume. 18 Q. And I can't pronounce the acronym, so I'll just 19 A. (Moved head up and down.) 19 leave it at that. And you won, in 2009, Public Official 20 Q. And is that what that is? 20 ofthe Year. 21 A. Yes, sir. 21 A. I did win that incredible award. 22 Q. And that's current? 22 Q. All right. And then also, the same year, the 23 A. Yes, it is. 23 National Association of Election Officials awarded you 24 Q. Okay. And I just want to ask you -- it's a 24 the 2009 Minute Man Award for developing effective 25 lengthy resume. I just want to ask you a few points 25 security practices that were effective, inexpensive, and

Page 10 Page 12

I from it. Your educational background, just very 1 easy for election officials to adopt; is that correct? 2 briefly, college and your master's. 2 A. Yes, I did. 3 A. Right. I have a college degree from the 3 Q. And then in 2005, you were the national 4 University of Texas at Arlington. It's a dual in 4 recipient of the Election Center's Best Practices Award 5 sociology/social work; and I have a maste1·'s degree from 5 for your work in risk analysis to implement security 6 the LBJ School of Public Affairs, 1981. 6 measures for electronic voting systems; is that right? 7 Q. And you've been a county clerk since when? 7 A. Yes, I did. 8 A. I was elected in '86 and took office Janua1-y 1, 8 Q. Let's see. You also serve as-- on the board, 9 1987. 9 the Standards Board, it looks like, of the United States 10 Q. Right. And do you have any idea how many 10 Election Assistance Commission. II elections you have presided over since then? II A. I am a current member, yes. 12 A. We keep meaning to add it up, but a couple of 12 Recently appointed. 13 h und •·ed, at least. 13 Q. And how long have you been on that? 14 Q. And I assume it would be-- I mean, you would 14 A. I was with the original group; so since 15 have city, county, state, federal, school district, bond 15 two-thousand-- late 2003. 16 issues, referendum. Referenda, sometimes. Have I left 16 Q. Okay. And that came into existence because of 17 anything out? 17 the-- 18 A. Pl"imaries. 18 A. The beginnings of-- 19 Q. And primaries. And runoffs. 19 Q. --the Help America Vote-- 20 A. Runoffs; special, uh-huh. 20 A. --the Help America Vote Act. 21 Q. So I mean, if you-- and if you added up all 21 Q. -- which was enacted 2002; is that right? 22 the candidates -- 22 A. It was written in 2002, it started in 2003, and 23 A.Oh. 23 the act was fully implemented as of January 1, 2006. 24 Q. -- on the ballots, for all those years, it 24 Q. And you have also been an international 25 would be thousands. 25 election observer and monitor in a series of elections

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4545 Page 4 (Pages 13-16) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 13 Page 15

1 around the world, the most famous, I suppose, being the I A. Okay. 2 South African election that ended Apartheid in 1994, was 2 Q. -- the chief election officer in the State of 3 it? 3 Texas, under the Election Code? 4 A. Apl'il of 1994. 4 A. The Secretary of State provides guidance and 5 Q. And you have done similar functions in Bosnia 5 instructions on all election law and procedure, and they 6 and Kosovo? 6 are the ones we turn to for any instructions; so they 7 A. Bangladesh. Yes, I've done several 7 are the chief officer for elections for the state. 8 assignments. 8 Q. And that would be true not just for you, as the 9 Q. Okay. You've also-- am I correct, you-- I 9 chief election administrator for Travis County, but for 10 guess you still do -- you serve as chair of the 10 election administrators across the state of Texas? 11 Elections Legislative Committee for the County and II A. All county clerks, election administrators, and 12 District Clerk's Association? 12 anybody else who conducts elections. 13 A. Yes, I do. 13 Q. And going back to the certification process, in 14 Q. And that's been true since 1995? 14 general, what does the Secretary of State do to certify 15 A. Yes. Twenty years. 15 election systems? 16 Q. Wow. All right. And then you've also been a 16 A. They're first going to follow the federal 17 member of the Election Center's Postal Task Force for 17 standards that are established by the Standards Board of 18 By-Mail Voting, since 2005. 18 the EAC. 19 A. Right. I'm -- I'm no longer cunent on that, 19 Q. That's -- the EAC is Elections -- 20 but I just left that one. 20 A. Elections Assistance Commission. 21 Q. Okay. And you made a variety of presentations 21 THE REPORTER: One at a time, please. 22 on developing security procedures for a DRE environment 22 THE WITNESS: Sorry. 23 and that sort of thing, across Texas and elsewhere, 23 A. Elections Assistance Commission. 24 right? 24 Q. We just have the to be careful not to talk over 25 A. Yes. We've-- we've-- it's sot·t of become our 25 each other.

Page 14 Page 16

1 pet project, over the years, to teach people about how A. Right. 2 to improve security with DRE systems. 2 Q. You will know my questions before I finish 3 Q. Very good. Since you've been in office, what 3 them, but --okay. It's the way we always have it 4 types of voting systems have you worked with? 4 happen in depositions, so don't worry about it, but... 5 A. I've done paper ballot elections. I inherited 5 So the EAC is the -- that's the 6 a punch card voting system from the County, when I was 6 commission -- can I help you? 7 first elected. I operated that fm· three years. Then 7 A. I'm looking for a tissue. 8 we had-- I purchased an Optical Scan Centml Count 8 Q. Oh. 9 system. We operated that until appt·oximately 2000. And 9 (Discussion off the record) 10 then in 2000, we brought in Hart eState. 10 A. All right. So what does the Secretary of State II Q. And you brought in the Hart eSiate system after II do, in tet·ms of certified election equipment? 12 the Secretary of State had certified that? 12 Q. (BYMR. HERRING) Yes. 13 A. Yes. 13 A. All right. First of all, they're going to 14 Q. And explain, briefly, the certification 14 follow all the federal standards, so they're going to 15 process; in other words, what the Secretary of State 15 look at what the system has been through, in terms of 16 does, relative to the certification -- by the way, the 16 all the federal qualifications, testing, all of that. 17 Secretary of State is the chief election officer, under 17 And then they are going to put the system through an 18 the Election Code for the Texas; is that correct? 18 additionallayet· of state testing, which involves 19 A. It is. 19 calling in a set of experts; and they have a cadre of 20 MR. COHEN: Objection; form. 20 folks that they pull from. Those folks will then look 21 A. That is correct. 21 at the software coding, and then they'll put it through 22 MR. HERRING: Sorry? 22 a sel'ies of tests fot· the system itself, and then they 23 MR. COHEN: Form objection. 23 will put the vendor that's selling it through a series 24 Q. (BY MR. HERRING) Let me --let me ask that 24 of question and answer. 25 again, then. Who is-- 25 And after that piece is finished, then the

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I panel of-- it's usually two computer science-type m· I said, many, many elections? 2 software enginee•·-type folks, and then a third person 2 A. Many elections. 3 who is knowledgeable about Texas election law. It's-- 3 Q. And are you comfortable and confident in its 4 it's a panel. And it could be more than that, but 4 security, based on that experience? 5 it's a-- it's a minimum ofth•·ee people. And then they 5 A. The way we run it, yes. 6 will go over all theil· notes and they will give the 6 Q. And its efficiency? 7 system a rating and they will decide if it needs to have 7 A. Yes. 8 anything upgraded, repail·ed, fixed, added, anything like 8 Q. Overall, for that time period, has it been a 9 that. And then depending on theil· final answer, the 9 good system? 10 SeCJ"etary reviews their final repmi, accepts or rejects 10 A. Yes. Yes. II their •·ecommendation, and then lets the company know II Q. Do you know how many other jurisdictions use 12 whether they're certified in Texas. 12 the eSlate, in Texas? 13 Q. And so that would be true, say, for the eSlate 13 A. A bunch. 14 system, from the beginning -- from the beginning, in 14 Q. I think I read, over 100 counties? 15 each version of the eSlate system? 15 A. That would be right. 16 A. Yes. There-- the•·e have been some 16 MR. COHEN: Objection; form. 17 recognitions that upgrades, over the yem·s, don't 17 Q. (BY MR. HERRING) Does that sound right? 18 necessarily have to start at zero and •·epeat the whole 18 A. A bunch of counties. 19 process; but, yes, you -- you have to step through 19 Q. Maybe-- 20 everything, for every new system. 20 A. One hund1·ed sounds reasonable. 21 Q. So if we looked at the eState system, there 21 Q. You're aware that one of the issues that 22 would be some of the earlier versions that may not be 22 Ms. Pressley has raised in this election contest is, she 23 certified now; but the current versions all would have 23 has questioned whether the CVR, the cast vote record, is 24 been through this, or the predecessors would have 24 a ballot image, for purposes of the Election Code and 25 been-- 25 the regulations that the Secretary of State has issued.

Page 18 Page 20 I A. That's COJTect. 1 Are you aware that she has raised that -- that issue? 2 Q. --through this? 2 A. I'm aware of that, yes. 3 Okay. Who made the choice, in Travis 3 Q. And as far as you are concerned, based on your 4 County, to go to the eSlate system? Who-- who made the 4 understanding from the Secretary of State, is the CVR, 5 decision? 5 the cast vote record, a ballot image or not, for 6 A. Ultimately, it was Travis County Commissioners 6 electronic voting systems? 7 Court. A group ofapp•·oximately 45 Travis County 7 A. It's the same thing. Yes, it is the image. 8 citizens from all walks of life, under my direction, 8 Q. It is a ballot image? 9 studied that issue for at least two years. Worked very 9 A. It's a ballot image. I0 hard, and they arrived at the conclusion, after doing 10 Q. And have you-- before Ms. Pressley came up II research beforehand, deciding what we needed. And then II with her different interpretation, had you ever heard 12 they compa1·ed that needs assessment to what was 12 anyone say it was not a ballot image? 13 available in the ma1·ket; reviewed the available systems; 13 A. No. No. 14 judged that this-- that the Hart eState was the best of 14 Q. So is that an interpretation that is 15 the available systems, and then made that •·ecommendation 15 consistent, in your experience, in your dealings, with 16 to the CommissionCJ"s Court, along with me. And 16 the Secretary of State? 17 Commissionus Court accepted that recommendation and 17 MR. COHEN: Objection; form. 18 decided to pui'Chase it. 18 Q. (BY MR. HERRING) Is it or is it not consistent 19 Q. And that was roughly 2000,2001, that time 19 with what the Secretary of State has instructed your 20 frame? 20 office that a CVR is a ballot image? 21 A. Roughly. It might have even been late '99. 21 A. It's consistent with the Secretary of State, 22 Q. All right. And then that's what we've used, 22 the CVR and ballot image are the same thing. 23 eSiate, since then? 23 Q. And is that true or is that not true of the 24 A. Since then. 24 United States Election Assistance Commission? 25 Q. So this system has been through, as you've 25 A. Their terms are also the same. It's consistent

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I with the Election Assistance Commission, that ballot I document issued to the county election officers and 2 image and CVR are the same thing. 2 other political subdivision officials, by Keith Ingram, 3 Q. Do you have any question in your mind, but that 3 Director of Elections? 4 ballot image equals CVR, in electronic voting systems? 4 A. Yes, it is. 5 A. No, I do not have any question. 5 Q. And what's the date on that? 6 Q. And has the Secretary of State, indeed, handed 6 A. April 1st, 2014. 7 out, distributed, various advisories, over the years, 7 Q. And let me ask you to tum to numbered page 12. 8 that say the same thing? 8 They're numbered in the lower right-hand comers. And 9 A. Many advisories. 9 does that have the same defmitions we just went through 10 (DeBeauvoir Exhibit No. 3 marked) 10 in the election advisory, for "ballot image" and "cast II Q. Let me show you what has been marked as Exhibit II vote record"? 12 3 and ask you if that is, indeed, the type of election 12 A. "Ballot image" and "cast vote record" are the 13 advisory you received from the Texas Secretary of State? 13 same. 14 A. It is the copy of the advisot·y I t·eeeived, yes, 14 (DeBeauvoir Exhibit No. 5 marked) 15 it is. 15 Q. (BY MR. HERRING) Let me show you what's been 16 Q. And this one is -- is -- I guess they come 16 marked as Exhibit 5 and ask you if that is a document 17 out -- they're numbered; is that right? 17 from the U.S. Election Assistance Commission, again, a 18 A. That's conect, they are. Yes. Advisory. 18 Glossary ofKey Election Terminology? 19 Q. This is one is numbered Election Advisory 19 A. Yes, it is. 20 No. 2012-03. 20 Q. And does that also have a definition of" cast 21 A. Uh-huh. 21 vote record"? 22 Q. 2012-03. 22 A. Yes, it does. 23 A. Correct. 23 Q. And that's on page 10 of this exhibit; is that 24 Q. And I'll ask you to tum to, oh, about four 24 right? 25 pages from the back of that document. And it's a 25 A. Yes, it is.

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I glossary that begins with "Audit Logs." Do you see I Q. And what is the definition of"cast vote 2 that? 2 record"? 3 A. Yeah. 3 A. "Cast vote t·ecord. Permanent record of all 4 Q. And you see the second term that's defined in 4 votes produced by a single votet· whethet· in electt·onic, 5 that-- in that glossary, is the term "Ballot Image"? 5 papet·, ot· othet· fot·m. Also refened to as ballot image 6 A. Yes. 6 when used to refer to electJ"Onic ballots." 7 Q. Would you read the definition of that? 7 Q. And is that consistent with the definitions 8 A. "Ballot Image. Electronically pt·oduced t·ecord 8 that you've had all along, since you've had the eSlate 9 of all votes cast by a single voter." 9 system, from Secretary of State? 10 Q. And then the next definition or defined term or 10 A. Yes, it is. II phrase is "Cast Vote Record." Would you read that II Q. Is that a standard meaning of the term, that 12 definition? 12 particular term, across the United States? 13 A. "Cast Vote Rec01·d. Permanent record of all 13 A. It is the standard meaning of the term. 14 votes pi"Oduced by a single voter whether in electronic 14 Q. And, indeed, that's issued by the-- well, let 15 or paper copy form. Used for counting votes. Also 15 me ask. 16 referred to as ballot image when used to refer to 16 You mentioned you are on the Board of 17 electronic ballots." 17 Standards for the commission. Is that a term that you 18 Q. And is this definition in this advisory, this 18 and your board have worked with, through the years, 19 2012 advisory, consistent with what you've known and 19 that-- 20 what you've been informed by the Secretary of State 20 A. Yes, it is. 21 since you started using the eSlate system? 21 Q. -- that definition? 22 A. Yes, it is. 22 A. Since we developed the first standards, yes. 23 (DeBeauvoir Exhibit No. 4 marked) 23 Q. Ms. Pressley has asked the Court, in one or 24 Q. (BY MR. HERRING) Let me show you what's been 24 more of her pleadings, to have an election with paper 25 marked as Exhibit 4 and ask you if that's another 25 ballots. How long has it been sinee we had a completely

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I paper ballot election in Travis County? I maintained on a list such that as you hand out a dollar 2 A. I don't remember exactly, but I'm thinking 2 bill to a voter, the serial numbet· for that dollar bill 3 sometime in the '80s. A very small election, and it 3 gets crossed off the list as having been used. All 4 would have been-- I'm not sure, but I think it would 4 right? 5 have been side by side with some larger election, a 5 That set·ial number is nevet· connected to 6 little add-on piece. 6 the voter or the voter's name. All right? But the 7 Q. So in the larger election, the general process 7 serial number gets crossed off, and it has to go 8 would have been -- 8 through-- this process has to go through a system 9 A. Regular procedure: punch card or optical scan. 9 whereby we account for the fact that we've used one 10 Q. In those days? 10 ballot, so we've-- we've used it, out of the inventory, 11 A. Yeah. And then it would have been some buddied II and we have to manage to retl"ieve, from the central 12 extra that needing something, that was perhaps added on 12 inventory, a replacement ballot for that, because the 13 late. Could have been a MUD. 13 next voter needs to have that ballot available; bring it 14 Q. Suppose that the Court said, "Well, you're 14 back out to the vote center; resupply it into the 15 going to have to have a complete paper ballot system." 15 inventory and account for its serial number, both 16 What would that require your office, you, Travis County, 16 including into the inventory at the location, and its 17 the other jurisdictions, to do? 17 subtmction from the inventory at whatever central 18 A. Well, it would be huge. We are completely-- 18 county is. 19 we have no infrastructure any longer to do a paper 19 And the closer you get to election day, 20 ballot election. We don't have even ballot boxes 20 there would be a reduction of any kind of central 21 anymore. So we would have to start over from scratch 21 inventory so that-- such that, on election day, 22 for everything we would need. 22 evet-ything would be decentralized out into the vote 23 Travis County is no longer the 200,000 23 centet·s, and you would have very little central 24 registered voters from back in the 80's that it once 24 inventory left. It would all be distributed. 25 was. We are now over 600,000 registered voters. And we 25 Q. So you have a security issue with just the

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I typically now use vote centet·s. So tt·ying to conduct a I number of paper ballots that have to be distributed-- 2 paper ballot election in our new wol"ld of convenience 2 A. Yes. 3 voting calls for levels of secul"ity for those papet· 3 Q. --I assume. And do you have a logistics issue 4 ballots, for inventory contJ"Ol, and fot· the balancing 4 with how many ballots are printed for the election and 5 that you're reqnit·ed to do every day. And to maintain 5 how many go to different voting locations? 6 those stocks, I'm -- the levels of secul"ity needed fot· 6 A. Yes, we do have a logistics issue. We have a 7 all those key steps are mind-boggling. 7 policy in Tt·avis County, and have for many, many, many 8 Q. So it would be expensive to convert? 8 years, that we don't under-order our ballots, based on 9 A. Vet·y expensive, to keep the papet· levels high 9 projections of turnout. Many counties do that to save 10 enough and, mostly, the security levels there to pt"Otect 10 money. We don't do that here. We order 100 percent of II that papet· inventot·y. II ballots. That actually translates into ordering a 12 Q. Would you need a new training system for 12 little more than 100 percent so that you can make sure 13 everyone? 13 that your inventory at one location accounts for the 14 A. Absolutely. All-new training systems. All new 14 fact that somebody from that particular area might go 15 tmining manuals; all new packets, what we call the 15 vote someplace else; and so you have a suitable 16 "kits," that go out into the individual vote centers; 16 inventory at all of your locations, for wherever that 17 pt·epat·ation matel"ials to conduct the election. 17 voter might turn up. 18 Q. Ballot boxes? 18 Q. And I seem to recall, from the paper ballot 19 A. Yeah, ballot-- cet·tainly, ballot boxes, yeah. 19 days, you also had issues of high turnout in -- 20 Multiple ballot boxes. 20 unanticipated high turnout -- 21 Q. What are some of the security issues with paper 21 A. Correct. 22 ballots that you don't have with an electronic voting 22 Q. --in one precinct and not in another and 23 system? 23 having to then transfer paper ballots, with the 24 A. The-- it's like handling dollat· bills. And 24 security -- 25 the serial numbet· that's on each dollar bill has to be 25 A. Correct.

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I Q. -- transfer, as well. I bids or financial numbers, for replacing the Hart eSiate 2 A. Right. And for security, we use law 2 system, completely, with a different system? 3 enforcement. That's constables and sheriffs. So a 3 A. Yes. Yes. 4 third party that is accountable to the public. 4 Q. And what's the ballpark range of what that 5 Q. And I recall from -- from those days, that we 5 would cost? 6 used to have a problem of potential voter fraud with-- 6 A. We have an estimate that if we were to-- 7 because so many people have to handle the ballots -- 7 making some assumptions, if we were to replace the 8 with the very simple over-voting technique -- 8 existing system we have with something similat·, say, 9 A. Uh-huh. 9 another Hat"t system that had some similar qualities, the 10 Q. -- which is, "I don't want Candidate A to win, 10 cost of that system would be approximately 14 million. 11 so I'll -- his name has been filled in. I'll put -- 11 Q. $14 million? 12 I'll fill in Candidate B's name." And then you've got 12 A. $14 million. 13 an over-vote and an invalid vote. Isn't that what used 13 Q. Okay. Another argument that Ms. Pressley has 14 to be-- 14 raised, as to why she thinks the election outcome was 15 A. Paper ballots have their problems, that they 15 not valid, is the changes between the general election 16 are susceptible to handling errors. 16 and the runoff election day, of some voter locations. 17 Q. The way our electronic voting system works in 17 A. Yeah. 18 Travis County, is it safer and more secure against voter 18 Q. Are you familiar with her making that argument? 19 fraud or election fraud, than a paper ballot system? 19 A. lam. 20 A. In my opinion, the way we run it here, it is 20 Q. And to begin with, let me go back to the point 21 far superior to paper ballots. It's far -- far more 21 you mentioned previously; and that is, we use voting 22 accurate and secure. 22 centers in Travis County, correct? 23 Q. Are you able to estimate the potential cost -- 23 A. Conect. 24 if, say, in this case, Ms. Pressley says, "Well, let's 24 Q. And I think in Ms. Pressley's deposition, we 25 have another election for District 4, and let's have 25 had a question as to whether, for the runoff election

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1 only paper ballots," do you have any kind of way to give 1 for city council, for District 4, there were either 135 2 me a rough estimate of what the cost would be? 2 or 136 voting centers; but approximately 135 or 136 3 A. I'm --I don't think I do, right this minute, 3 voting centers were available to anyone who wanted to 4 no. It's-- it's-- it would be-- it would be a 4 vote in those runoff elections, correct? 5 completely different wol"ld that we would have to start 5 A. Con·ect. 6 from zero to build. 6 Q. And so ifl were a resident of District 4 and I 7 Q. And would it say time to even develop such a 7 wanted to take off my lunch hour-- I work downtown and 8 system? 8 want to take off my lunch hour and go to a voting 9 A. Yes, it would. 9 center, I can go anyplace in the county and vote at one 10 Q. Are we talking a week or are we talking months? 1o of those centers, correct? 11 A. Oh, months. We would have to go thJ"Ough 11 A. Any place -- 12 pm·chasing requit·ements, in ordet· to put out bids to buy 12 MR. COHEN: Objection form. 13 evet·ything that we would need. We would have to t·edo 13 A. --that's convenient for you, you can vote. 14 all of the election management softwat·e project -- 14 Q. (BY MR. HERRING) Suppose I were a voter in 15 pi"Oducts that we have. I-- I-- and at this point, I 15 District 4 and I was wanting to take off and vote when I 16 can't even think tht·ongh the list of things that we 16 was downtown working, at lunch. Where could I vote? 17 would have to t·edo. 17 A. Thet·e at·e a lot of places to vote. I would 18 Q. Now, there has been some discussion of 18 need to have a list in front of me; but, typically, 19 upgrading or changing from eSlate, which we've had for, 19 we've got City Hall. There are some places aJ"Ound the 20 I guess, 13, 14 years, whatever the number is, to a new 20 university. There are lots of schools around, that have 21 system. And that's, I assume, an ongoing evaluation 21 locations. I mean, thet·e are multiple places. 22 that all election administrators make. Have you looked 22 Q. In fact, ifl wanted to drive, I could vote at 23 at that possibility, down the line? 23 any one of the 136 -- 24 A. Yes, we have. 24 A. You know-- 25 Q. And have you seen any -- any cost estimates or 25 Q. -- locations. True?

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1 A. -- that's con·ect. 1 A. Uh-huh. That's correct. 2 MR. COHEN: Objection; fonn. 2 Q. So you had a vast reduction in the number of 3 Q. (BY MR. HERRING) Could I vote at any one of 3 candidates on the ballot? 4 the 136locations, ifl wanted to take off and drive at 4 MS. THOMAS: Objection; form. 5 lunch? 5 Q. (BY MR. HERRING) Is that right? 6 A. You absolutely could vote anywhere you wanted. 6 A. We had very much fewer candidates on the 7 Q. Okay. And ifl were taking a child to school 7 ballot. It was a much, much shorter ballot. 8 and the school was outside of District 4, could I vote 8 Q. And how does --how did you go about deciding 9 in a voting center near a school? 9 which locations to make that-- that more cost-efficient 10 A. You can stop-- drop the child off, stop, go in I0 footprint, which locations to consolidate or -- or 11 and vote. Absolutely. I1 close? 12 Q. All right. So in no sense was any resident of 12 A. Right. This was the first time we evet· did it, 13 District 4 limited to voting at the locations within 13 because this was the fii'St time we ever had to deal with 14 District 4? 14 this election. So we used a variety of sources to 15 MR. COHEN: Objection; fom1. 15 advise us how to do this. 16 A. No one was limited to a single voting place, 16 Certainly, we consulted with the City. 17 undet· a vote center scenario. 17 They were our main source to advise us which way to go. 18 Q. (BY MR. HERRING) Now, explain-- explain 18 We did look at turnout patterns. We talked to people in 19 why -- strike that. 19 the community. We made our best judgment. 20 Is it -- is it common practice, between a 20 Q. So you received input from as many sources 21 general election, whether it's a primary election and a 21 as you could? 22 runoff or some other runoff-- of course, it's the first 22 A. As possible. 23 time we've had the runoff for city council this way-- 23 Q. And if Ms. Pressley had wanted to come to you 24 A. Right. 24 and say, "No, I don't think that you should close a 25 Q. --but is it common practice, between the first 25 particular voting location," would you have listened to

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I election day and the runoff election day, to change I her? 2 locations for voters, to consolidate or to modify? 2 A. Absolutely. 3 A. It is common practice to reduce the footpl'int 3 Q. Did she do that? 4 of the election, fot· a runoff election. 4 A. No. 5 Q. Why? 5 Q. And it's also true, isn't it, that the city 6 A. It's to save money. Typically, the turnout is 6 council has a role in approving the election locations 7 so much lowet· fot· mnoff elections, that most elections, 7 for the runoff? Is that right? 8 most jul'isdictions, cut back, for the mnoff. 8 A. Yes, they do. 9 Q. And going back to our listing elections 9 Q. And did they have a public notice and posting 10 earlier, for this -- in this instance, the November 4th 10 and hearing, to allow citizen input on where the voting 11 election, of course, had that entire ballot -- 11 locations would be? 12 A. Yeah. 12 A. Yes. In addition to the opinions we recruited 13 Q. -- coJTect? 13 and asked fot·, the City has a public process to ask for 14 A. Correct. 14 opinion. 15 Q. So city, county, state, federal. We had a 15 Q. Okay. And Ms. Pressley has testified that she 16 ballot, constitutional -- 16 did not, and her campaign did not, appear before the 17 A. Constitutional amendment, uh-huh. 17 city council to protest or question or challenge or make 18 Q. --amendment. School district? 18 suggestion or provide any input whatsoever to the 19 A. Uh-huh. 19 council, concerning the voting locations for the runoff. 20 Q. And then the runoff election, as I recall, had 20 Is that your understanding? 21 only two categories. It would have had city council, 21 A. I'm not aware of any additional input. 22 mayor, and then it would have had the school district 22 Q. Okay. Do you also consolidate voting 23 runoff, as I -- 23 locations, change voting locations, say, in a party 24 A. Uh-huh. Uh-huh. 24 primary, between the primary election day and the runoff 25 Q. -- recall, coiTect? 25 day?

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I A. Pretty commonly, yes. I and said, you know, "I really want this candidate to 2 Q. Same process, generally? 2 win"-- in any of these elections-- "and so we ought to 3 A. Generally, yes. 3 change voting locations," what would you have done? 4 Q. And is that true for election jurisdictions 4 A. I would have been insulted and told them that 5 throughout Texas? 5 that is a completely inappropriate role for the county 6 A. Yes, it is. 6 clerk to play. 7 Q. And do they all follow that same, generally, 7 Q. Based on -- strike that. 8 standard process? 8 You've had quite a few interactions with 9 A. Yes, they do. 9 Ms. Pressley, concerning the election, correct? 10 Q. Now, in Ms. Pressley's deposition, I asked her 10 A. I have. II about a couple of locations. The Highland Mall location II Q. She filed a series of complaints against you 12 and then the Airport Boulevard location. And it turned 12 and your office, with the Secretmy of State, correct? 13 out, it would -- according to Google Maps, it would take 13 A. Correct. 14 about three minutes to drive from the one location to 14 Q. The Secretmy of State rejected those 15 the other. 15 complaints; is that correct? 16 MR. COHEN: Objection; form. 16 A. The Secretary did. 17 Q. (BY MR. HERRING) And Ms. Pressley said that 17 Q. Do you have -- after you have been through this 18 that's voter disenfranchisement, to have to drive three 18 whole process, viewed her complaints, do you have any 19 minutes. 19 question in your mind, but that the election results 20 MR. COHEN: Objection; form. 20 certified for the runoff was the true outcome of the 21 Q. (BY MR. HERIUNG) In your-- in your opinion, 21 election? Do you have any doubt about that? 22 is that -- is that disenfranchisement, to drive for 22 A. No question at all. We are very clear of the 23 three minutes? 23 outcome. It's been manually recounted. There's no 24 MR. COHEN: Objection; form. 24 question. 25 A. None of the places that we used for the -- for 25 Q. And Mr. Casar received 1200 and any one more Page 38 Page 40

I the runoff election, are inconvenient, nor represented I votes than Ms. Pressley? 2 any particular obstacle or barrier for voters. We 2 A. Correct. 3 believe everything was fair and equitable, in the 3 Q. Thank you for your patience. 4 distribution of those vote centers for the runoff 4 MR. HERRING: I'll pass the witness. 5 election. 5 We'll play musical chairs here, and Mr. Cohen will ask 6 MS. THOMAS: Objection; forn1. 6 some questions. 7 Q. (BY MR. HERRING) Since we've got some-- a 7 THE WITNESS: Okay. 8 series of objections, why don't we ask you a related 8 Do you want to take a break? 9 question. 9 MS. THOMAS: I was going to say, how long 10 Do you have a11 opinion concerning whether 10 have we been going? II the voting locations used in the runoff, were fair and II (Simultaneous speaking- unreportable) 12 reasonable? 12 MR. HERRING: Let's take a little break. 13 A. Do I have an opinion? Yes, I have an opinion. 13 MS. THOMAS: Can we take a break, just 14 Q. And what's the opinion? 14 because it's a good stopping point? 15 A. Yes. The opinion is-- 15 MR. HERRING: Yeah. That's great. 16 MR. COHEN: Objection; fmm. 16 THE WITNESS: Okay. All right. 17 A. --they were all very much reasonable, 17 (Recess 10:23 a.m.- 10:38 a.m.) 18 ADA-compliant, fully accessible, well-lmown, well-used, 18 (DeBeauvoir Exhibit Nos. 6- 12 marked) 19 and fully advertised; so they were fair and equitable. 19 EXAMINATION 20 Q. (BY MR. HERRING) Did you receive any input 20 BY MR. COHEN: 21 from anyone, to the effect of, "Well, we ought to change 21 Q. Good morning, Ms. DeBeauvoir. 22 some voter locations in District 4 to effect the outcome 22 A. Good morning, again. 23 of the election"? 23 Q. We have known each other-- 24 A. I received nothing. No input. 24 A. Many years. 25 Q. And would you have-- if somebody came to you 25 Q. -- since you started --the first time you ran

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1 for election. I think -- 1 twice, right? They show their ID, and if they have a 2 A. Yeah. 2 proper-- well, if they don't have a voter's 3 Q. --I was a big supporter of you then-- 3 registration certificate, they show some ID and sign 4 A. You are. 4 next to that, correct? 5 Q. -- and I have been ever since. 5 A. Correct. 6 A. I know. And I'm a fan of yours. 6 Q. And then they go to the next person-- at least 7 Q. That's good. Okay. So I know that you-- what 7 I do in my poll, because I don't have a voter ID card 8 you want to do is make sure that you have the true 8 when I vote; and then I sign for a number, right, that 9 results of every election that you're in charge of, 9 I'm going to feed into the machine? 10 correct? 10 A. More or less correct. That's okay. II A. That's correct. II Q. Yeah. And when I do that, what does the 12 Q. And that you want to be able to verifY the 12 machine show me, in order for me to decide who I'm going 13 results of the election if someone challenges that. 13 to vote for? It doesn't show me that, correct? It 14 A. Correct. 14 doesn't show me Exhibit I 0? 15 Q. Okay. And so we are here because someone 15 A. Okay. Let-- 16 challenged them-- 16 Q. Is that correct? 17 A. Uh-huh. 17 A. Your question is confusing to me. 18 Q. --and we just-- we're not sure that we had a 18 Q. Okay. Let me help --then tell me what-- 19 system in place that really actually verified it. Okay? 19 A. Olmy. 20 A. I understand. 20 Q. -- so I can get you to understand. 21 Q. All right. So I'm going to show you-- and you 21 A. All right. You-- you were talking about the 22 have said that, in your opinion, a cast vote record is 22 sign-in process, so-- 23 the same as an image of a ballot, correct? 23 Q. Yeah. 24 A. Yes-- 24 A. -- you only sign once -- 25 Q. And is that-- 25 Q. Yeah. Okay.

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I A. --it is. 1 A. -- and then you go over to the station that 2 Q. -- because what everybody else told you, or do 2 issues you your access code. 3 you actually believe that? 3 Q. Yeah. 4 A. I actually believe that. 4 A. It's a four-digit code. Okay. The access code 5 Q. And you believe that's the best way to 5 is what you're going to take over to the voting booth-- 6 double-check the computer's compilation of the votes on 6 Q. Right. 7 election day? 7 A. --enter the access code, and the entire ballot 8 A. I believe it's the only way to know, yes. 8 is going to come up for you. 9 Q. The only way. Okay. So I'm going to show you 9 Q. Right. 10 what's marked as Exhibit 10. It's a little bit out of I0 A. Okay? So I'm just walk-- walking through. 11 order. II Okay. So the ballot-- you're going to 12 MR. COHEN: Would you give Mr. Herring a 12 wot·k through the ballot, marking the ballot. 13 copy of his -- 13 At the end of yom· ballot, there is -- 14 MS. PRESSLEY: Okay. Is this it? 14 Q. Let me stop you there, because I want to go 15 MR. COHEN: Yeah. It's the cast vote 15 through the process -- 16 record. 16 A. Okay. 17 MS. PRESSLEY: Okay. 17 Q. -- a little bit slower than that. 18 Q. (BY MR. COHEN) What is that, Exhibit I 0? 18 So I'm looking at a ballot. I'm not 19 A. It looks like an election day report. 19 looking at that, at Exhibit 10, am I? 20 Q. Is that a cast vote record? 20 A. No. 21 A. Yes, I believe it is. This is -- 21 Q. Okay. Am I looking more like-- especially in 22 Q. So on election day -- let's go through this. I 22 this election, like Exhibit 7 -- tell me what Exhibit 7 23 know we all know this, but -- 23 is. 24 A. Uh-huh. Okay. 24 MR. HERRING: Can I have a copy of 25 Q. Okay. So the voter comes in. They sign in 25 Exhibit 7?

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1 MS. THOMAS: Yes. Yes. I'm sorry. I opportunity to change it. 2 A. This is what a by-mail ballot would look like. 2 Q. Okay. Right. And if you don't change it, 3 Q. (BY MR. COHEN) Okay. That's-- 3 that's who you vote for? 4 A. This is sort of like an optical scan ballot. 4 A. Correct. 5 Q. Okay. And that says-- it says "Sample Ballot" 5 Q. Okay. But when you make your decision, you're 6 on the side of it. 6 looking at Exhibit-- something like Exhibit 8 or 9, not 7 A. Okay. This is what a by-mail ballot looks 7 something like Exhibit 10? 8 like. 8 A. No. 9 Q. Okay. 9 MS. THOMAS: Objection, fonn. 10 A. Our sample ballots don't look like this. I 10 A. No. This is yom· final chance. It'll look 11 realize it says that on the side. II like this. 12 Q. Yeah. 12 Q. (BY MR. COHEN) Okay. 13 A. This is what a by-mail ballot looks like. It 13 A. It's a-- it looks like the summa1·y screen. 14 looks like an optical scan ballot. 14 Q. Exhibit No.8 or 9 is what shows up in your 15 Q. Okay. And then I'll show you, marked 15 face when you try to decide who you want to vote for, 16 Exhibit 8, and what is that? I thought that was 16 correct? 17 what a-- 17 A. You voting. The process, yes. 18 A. Same thing. 18 Q. Yes. Okay. 19 Q. That's what a mail-in ballot looks like. You 19 A. Con·eet. 20 said that -- is that correct? 20 Q. And so you don't see No. 10 when you're 21 A. By mail, yes, uh-huh. 21 deciding who to vote for. You see No. 10 to make sure 22 Q. Okay. All right. And then when a person goes 22 that who you marked on Exhibit 8 is what you really want 23 to vote at the machine, No. 7 and No. 8 are-- it may be 23 to do; is that correct? 24 a little bit different, but that's what they look at, in 24 MS. THOMAS: Objection-- 25 deciding whether -- what -- who they want to vote for; 25 A. No.

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1 is that correct? 1 MS. THOMAS: -- form. 2 A. Similar. 2 Hang --just -- let me just get the 3 Q. Yes. Okay. It certainly isn't Exhibit 10 that 3 objection in, and then you can answer. 4 they see. 4 Q. (BY MR. COHEN) You still have to answer the 5 A. That's not correct. That's what I keep trying 5 question. You said "No"? 6 to tell you. 6 A. Oh, excnse me. No. It's-- it's not. This is 7 Q. Okay. They do see Exhibit 10 when they vote? 7 a part of the final decision process, and you still have 8 A. llh-huh. llh-huh. What will happen is, is that 8 the chance to change it, and it does look exactly like 9 after you've voted, the last screen that you will see is 9 the summary sCJ"een. 10 what's called a "summary screen." And this information 10 Q. Okay. So when you see that, it's asking you if II is contained on the summary sCJ"een, so it looks almost II you want to change -- 12 exactly like this. 12 A. It is asking yon-- 13 Q. So it-- 13 Q. --what you did on-- 14 A. This part is going to be missing; but what 14 THE REPORTER: Wait. One at a time. 15 you'll see on the summary, is this. 15 Q. (BY MR. COHEN) Hold on. It-- when you see 16 Q. Okay. So if!-- when I go in and I decide who 16 Exhibit 10, it's asking you if you want to change what 17 to vote for and I mark who I vote for, then the computer 17 you marked on Exhibit 7 or 8? 18 says, "This is who you vote for. Are you sure you want 18 A. Correct. 19 to vote for them?" Is-- 19 Q. Okay. And you're saying-- it's your opinion, 20 A. Yes. 20 I guess -- or the electronic system tells you that the 21 Q. -- that correct? 21 ballot is-- the last chance, this No. 10, your last 22 A. Yes. 22 chance to change, is -- is what you considered to be the 23 Q. Okay. 23 ballot -- the image of the ballot? 24 A. Do you want-- this-- it will say, "Here are 24 A. Correct. 25 yonr selections," and it will give you a last 25 Q. Okay. And then Exhibit 10 is somehow preserved

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I somewhere in the voting machine? 1 objections at the trial -- 2 A. Multiple places. 2 MR. HERRING: Well, that's why I'm-- 3 Q. Okay. Where is it-- 3 MR. COHEN: --so I understand. 4 A. Multiple redundancy. 4 MR. HERRING: That's why I'm asking. 5 Q. Where is it preserved? 5 MR. COHEN: That's --that's fine. If you 6 MS. THOMAS: Objection; form. 6 want her to make objections for you, I will accept that. 7 You can answer as -- 7 MR. HERRING: Well, for her objections to 8 A. It is pt·eserved twice on the eSiate and once in 8 form, I just want to be able to stand on those and have 9 the JBC. I think that's correct. Ot· it may be the 9 your rule 11 agreement that I can. 10 opposite. It may be twice in the JBC and once in the 10 MR. COHEN: You can stand on those. II eSiate. And when -- I need to correct my answer. It's II MR. HERRING: Okay. 12 twice in the JBC and once on the eSiate. 12 Q. (BY MR. COHEN) Okay. Now, you have a website 13 Q. (BY MR. COHEN) Okay. What is the JBC? 13 that talks about the E-voting system, correct? 14 A. Judge's Booth Controller. It's the device that 14 A. C01-rect. 15 stores the inventory of unvoted ballots, the inventory 15 Q. Is this Exhibit No. 6 an accurate picture of 16 of voted ballots, and the access codes that qualify-- 16 the website page? 17 once a qualified voter is ready to vote, they give the 17 A. I believe so, yes. 18 voter, so they can start the process. 18 Q. Okay. And do you see where I have marked-- 19 Q. Okay. So Exhibit-- versions of Exhibit 10, 19 MS. THOMAS: Objection; form. 20 depending -- depending on that the voter verified what 20 Go ahead. 21 their choices were -- 21 Q. (BY MR. COHEN) Do you see where I have marked 22 A. Yeah. 22 on there -- that's probably why she's objecting; there's 23 Q. -- are in the JBC in two places? 23 a mark on there that I made, that shows what I'm talking 24 A. Two places. 24 about. I don't want to go over the whole page. I just 25 Q. Where in-- where would we find them? 25 want to go over that line. And what does it say?

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I A. It would be in -- in -- I A. It says-- you want the fourth item. "Captures 2 MS. THOMAS: Objection; form. 2 an image of each ballot cast so that electronic or 3 A. -- in medium stored on the JBC. And it's two 3 manual counts can be"-- "recounts can be conducted." 4 different kinds of medium. One of them looks kind of 4 Q. And you think No. 10 is what you're talking 5 like a disk, and one of them looks like-- I think, 5 about there, correct? Exhibit No. 10? Is that what 6 something like a flash drive. 6 you're talking about? 7 Q. (BY MR. COHEN) And what kind of program is 7 A. This is the paper version of it, yes. They' t·e 8 that? 8 referring to the electronic image of it. This is the 9 A. I don't know. 9 paper part of it. 10 MS. THOMAS: Objection; form. 10 Q. This is-- this is-- II Q. (BY MR. COHEN) You don't know? Is it a II A. This is the -- 12 Microsoft kind of function-- system or-- 12 Q. --a copy of the-- 13 A. No. 13 A. -- yeah. 14 MS. THOMAS: Objection; form. 14 Q. --electronic image? 15 Q. (BY MR. COHEN) Okay. 15 A. They're saying an electronic image, yeah. 16 A. It was pt·oprietat·y. 16 Q. But this is a copy of the electronic image-- 17 MR. HERRING: Mr. Cohen? 17 A. That's correct. 18 MR. COHEN: Yes. 18 Q. --is that what you're saying? 19 MR. HERRING: I don't want to clutter up 19 A. That's correct. 20 the record with objections. Can I ride on her 20 Q. So do you think-- really think people thought 21 objections to form, or do you want me to-- 21 that this is what their ballot would look like, what you 22 MR. COHEN: That's fine. 22 were talking about? 23 MR. HERRING: -- lodge independent-- 23 MS. HIOMAS: Objection; form. 24 MR. COHEN: That's fine, because, really 24 A. Yes. Why not? Yes. It says their-- that's 25 she's not representing a party and won't be able to make 25 the -- office and who they picked.

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I Q. (BY MR. COHEN) Well, it doesn't say "Official I MR. COHEN: Do we have another copy of 2 Ballot" on it, does it? 2 this for him? 3 MS. THOMAS: Objection; form. 3 MS. PRESSLEY: Sure do. 4 You can answer. 4 Q. (BY MR. COHEN) Do you know what that is? 5 A. I don't think I ever really noticed. 5 A. Yes. 6 Q. (BY MR. COHEN) There's a lot of other things 6 Q. What is that? 7 that the statutes require to be on the ballot, that are 7 MS. PRESSLEY: What number is that? 8 not on Exhibit 10. Isn't that true? 8 MR. COHEN: 13. 9 MS. THOMAS: Objection; form. 9 MS. PRESSLEY: All right. 10 A. I don't know. 10 A. This document, Exhibit 13, looks like one of II Q. (BY MR. COHEN) You don't know what the law II the tally sheets that we used for the recount. 12 requires to be on a ballot? 12 Q. (BY MR. COHEN) Okay. And it's got your-- 13 MS. THOMAS: Objection; form. 13 that little red thing over there -- 14 Q. (BY MR. COHEN) It's okay if you don't. I 14 A. Uh-huh. 15 mean, most people don't, I'm sure. 15 Q. --that's --that's your "DD"? 16 MS. THOMAS: Objection; form. 16 A. Yes. 17 A. I know that there are huge differences between 17 Q. Okay. So do you have any question about 18 what the law says for paper ballots and what the law 18 whether that's an accurate version of what you used for 19 says for electronic. And I'd have to have the law in 19 the recount? 20 front of me, to make the distinction between the two. 20 A. I don't think so. 21 Q. (BY MR. COHEN) Do you think there's a 21 Q. You think it is? 22 description in the law, of what needs to be on an 22 A. I think it is. 23 electronic ballot? 23 Q. Okay. 24 MS. THOMAS: Objection; form. 24 MS. THOMAS: Objection; form. 25 A. I think it would take a thot·ough reading of the 25 Q. (BY MR. COHEN) Okay. I'll show you what's

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I code, to make those distinctions. No, I don't think I marked as Exhibit 12. If you want to look through that 2 it's in one place. 2 and see what... 3 Q. (BY MR. COHEN) Okay. But there is a place 3 A. All right. 4 where a ballot is defining what has to be on a ballot -- 4 Okay. 5 A. Paper ballot. 5 Q. Does that look, to you, like the audit log from 6 Q. --somewhere? 6 the runoff election? 7 A. --yes. 7 A. I believe so. 8 Q. Yes. Does it say "paper ballot"? 8 MS. THOMAS: Objection; form. 9 A. Probably. 9 THE WITNESS: I'm sorry. 10 Q. Okay. But you could be wrong about that? 10 A. I believe so. II MS. THOMAS: Objection; form. II Q. (BY MR. COHEN) Okay. Now, Let me get back to 12 A. I don't think so. 12 one thing. Do you -- is there -- does the eSlate system 13 Q. (BY MR. COHEN) Okay. Is this a paper ballot, 13 have a tally capability? 14 Number 7 -- 14 A. Yes. 15 A. Yes. 15 Q. Could the eSlate system make a copy ofthe 16 Q. --and 8? 16 voter's action on the actual ballot, that it looks at it 17 A. Yes. 17 when it makes a choice? 18 Q. This is a paper ballot? 18 A. Not like-- 19 A. That's what it look-- that's what a paper 19 MS. THOMAS: Objection; form. 20 ballot looks like. This is a representation of a paper 20 THE WITNESS: I'm sorry. 21 ballot. That's why it said it's by mail. 21 MS. THOMAS: Go ahead. 22 Q Okay. 22 A. Not like this. 23 (DcBeauvoir Exhibit No. 13 marked) 23 Q. (BY MR. COHEN) Okay. It cannot make a copy of 24 Q (BY MR. COHEN) I'm showing you what's marked 24 this? 25 as Exhibit 13. 25 A. No.

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1 MS. THOMAS: Objection; form. 1 ballots -- 2 Q. (BY MR. COHEN) Okay. Can it make a copy of 2 A. I see what you're saying. 3 something that -- where the ballot is marked? 3 Q. -- were equal? 4 MS. THOMAS: Objection; form. 4 A. You are correct. 5 A. No. 5 Q. Okay. 6 Q. (BY MR. COI-IEN) Okay. What version of the 6 A. I'm sony. 7 eSlate system are you using right now? 7 Q. Thank you. I just needed to clear that up. 8 A. I don't remember. We'll have to look it up. 8 That's what I thought it said. 9 It might say on here, someplace. I don't J'emember. 9 A. Yes. Sorry. 10 Q. You don't remember. Okay. 10 Q. Thank you. 11 And as you updated the -- with the new 11 So what security have you put in place to 12 versions of the eSlate system, did you have some group 12 prevent any kind of mistakes or -- intentional or 13 of scientists and election experts verify that there 13 otherwise, in the tally of the voting? 14 was -- that the update was appropriate? 14 A. It's a lengthy list. 15 A. Yes. We go through a procedure, through the 15 MS. THOMAS: Objection; form. 16 Secretary of State's office; and the main verification 16 Q. (BY MR. COHEN) Okay. We're-- we're here to 17 is called "hash code testing." 17 hear it. 18 Q. That goes -- you do that every time you 18 A. Okay. I need a little notepad. 19 incorporate an update into your system; is that correct? 19 MS. THOMAS: This is for what purpose? 20 A. Every time. 20 THE WITNESS: Just for me to remember 21 Q. Okay. Let's take a look at the --what does 21 which ones I'm telling him, for right now. 22 the Tally-- what does the Tally portion of the eSlate 22 MS. THOMAS: Okay. This is going to be to 23 system do? What is that function? 23 me. 24 A. Tally is a sepal'3te module that is only used 24 MR. COHEN: I won't look at it. I won't 25 for election night, to tally results from by-mail early 25 take it from her. Okay.

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1 voting, in-person mail voting, and then election night. I A. Gosh. 2 And it's -- it's just-- as I said, it's a separate 2 Q. (BY MR. COHEN) Do you know what? Let's do 3 module, it tallies the votes for election night, and 3 this. Let me keep going, and we'll take a break and you 4 then it's also used to communicate those results to the 4 can go back to your office and, you know, make-- have 5 general public and to media, in a nutshell. 5 that answer to this question, once it gets -- 6 Q. So -- but it's not the official tally, correct? 6 A. Okay. It's also on our website. I mean, it's 7 A. It's not-- no. 7 a rather lengthy list. 8 Q. No. 8 Q. Okay. What I want to ask you-- how they just 9 A. It is fo1· unofficial results on election night. 9 work. That's -- 10 Q. Got you. Okay. Now, let me go back. I forgot 10 A. Okay. Okay. I can-- 11 to ask you a question about Exhibit 13. 11 Q. --that's the problem. 12 This is-- you'd say this was a tally of 12 A. -- do that, too. 13 the mail-in votes, correct? That it-- 13 Q. Okay. Okay. Do you feel comfortable sitting 14 A. I'm sorry-- 14 here and doing it, or would you -- 15 MS. THOMAS: Objection; form. 15 A. I do. I think-- 16 A. -- I can't tell. I would say this is not 16 Q. -- rather take some time -- 17 by-mail ballots. It's the wrong numbe1·s. This is just 17 A. -- I can get everything-- 18 a gene1·al tally. 18 Q. Okay. 19 Q. (BY MR. COHEN) Okay. Let me see. So you've 19 A. --if you'll just give me just a-- 20 got-- the totals-- not the cumulative total, but the 20 Q. Sure. No. 21 totals at the bottom there -- 21 A. -- couple of minutes. 22 A. Uh-huh. 22 Q. Take as long -- I don't want you to be at a 23 Q. -- I believe -- and you have to correct me if 23 disadvantage, in answering the question. That's all. 24 I'm wrong-- or if you don't know, that's okay-- 24 A. If I forget something, we'll fill it in. 25 whether or not those 240 to 240 shows that the mail-in 25 That's okay. I really am--

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1 Q. I don't know, myself. 1 went on in a polling work-- polling place that day; the 2 A. -- here to help. I'm -- 2 actual ballot box, which looks like a card. 3 Q. I don't know. 3 Q. Is that the-- 4 A. --- here to help. 4 A. I'm trying -- 5 Q. I don't know the answer. That's why I'm 5 Q. --MBB? 6 asking. 6 A. I mean, it's basically all the paperwork, the 7 A. Okay. Lets see. 7 sign-up sheets, and the ballot box, are going to be 8 Oh, I keep thinking of others. Okay. 8 brought in, by law enforcement, from the substation. At 9 Let's start with these. These at·e the basic ones. 9 the substation, what happens is, is that the election 10 Q. Okay. 10 judge from the polling place makes an official surrender 11 A. All right. All right. The-- let's see. 11 of the entire JBC through a process where they have to 12 Whet·e should I stat"t? 12 step through to make sure everything is thet·e; that it 13 Let's-- alll"ight. This is for Tally, so 13 checks out before they leave so that, if we have 14 we're going to-- we't·e going to talk about election 14 questions, we've got them l"ight there, to answet". Then 15 night. There are procedm·es that-- that we use all 15 it's sealed back up again, given to law enforcement, and 16 around the election, that come to the fore, election 16 they take it downtown. 17 night. Okay? 17 Q. Okay. So there's a ballot box, did you say, 18 One of the-- one ofthe basic things we 18 just now? 19 use is numbet·ed seals so that you-- it's a way to prove 19 A. Conect. The -- the -- 20 up chain of custody. All right? So seals is a piece of 20 Q. What does-- 21 chain of custody. We're going to come back to chain of 21 A. --the judges bring in the ballot box and 22 custody, but numbered seals are impot·tant because they 22 the-- 23 can tell -- it tells you, has anything happened prior to 23 Q. What does that look like? 24 the last stage of when this thing was eithet· opened or 24 A. -- and the medium is -- 25 looked at. All l"ight? So we use a lot of seals. 25 Q. What-- is that called the "MBB"?

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1 And we always have multiple people 1 A. The JBC. It's JBC. 2 verifying the seal number of who put it on the last 2 Q. Okay. 3 time, and then there's-- on --on the list of those 3 A. It's about this big and about this high 4 seal numbers and who changed them. It's an envelope, so 4 (indicating). It's a gray box. 5 we keep the seal numbers all together. 5 Q. Okay. I'm sorry. I didn't mean that. I mean, 6 Law enfot·cement, Ds and Rs in the counting 6 what's in it? 7 station. And it's a-- it's a group effort to watch 7 A. It's the ballot box, and it was what I had 8 over those seal numbers. And that includes both at the 8 talked to you eal'liet· about -- 9 polling place, when everything is sealed up; at the 9 Q. Okay. 10 receiving substation, when the verifications m·e made-- 10 A. -- about it contains the inventory of unvoted 11 and I'm going to get to that next-- and then at the 11 ballots, the inventory of the voted ballots, and the 12 counting station, when everything is brought in by law 12 mechanism fm· issuing a access code for the voter to 13 enforcement. 13 gain access to the ballot. So that's-- 14 Q. Can I stop you right there for a second? When 14 Q. When you say-- 15 yon say-- 15 A. -- what a JBC -- 16 A. Sure. 16 Q. --"ballot," you're talking about-- 17 Q. -- everything is brought in by Jaw 17 A. Electronic ballot. 18 enforcement -- 18 Q. --Exhibit 10? 19 A. Enforcement. 19 A. I think the electronic -- 20 Q. -- what are you talking about? 20 Q. So in-- in this ballot box is -- 21 A. All right. 21 A. This-- this is only-- okay. No, I'm not 22 Q. What is brought in? 22 talking about Exhibit 10. 23 A. The-- the paperworl<. And you're going to 23 Q. Okay. What is-- what's wrong with Exhibit 10? 24 mostly think about that as the sign-up sheets and any 24 A. Okay. Exhibit 10, this is a copy of either the 25 paperwork-- affidavits, any paperwot·k desuibing what 25 summary page or the CVR, which is-- if you're talking

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I about the summary page, that's one screen of what the I Q. -- and a CVR is a copy-- is a computerized-- 2 voter is going to see at the tail end of their voting. 2 A. -- is a final version. 3 If you're talking about the CVR, it looks 3 THE REPORTER: One at a time, please. 4 like this, but the voter isn't going to see a CVR. 4 A. -- of that. 5 Okay? 5 THE WITNESS: Okay. I'm son·y. 6 Q. Okay. 6 THE REPORTER: I can only get one at a 7 A. All right. 7 time. 8 Q. The voter never sees a CVR. 8 THE WITNESS: Sorry. 9 A. No. Only if it's-- 9 Q. (BY MR. COHEN) Say that --I'm sorry. I don't 10 Q. And-- and-- 10 want to put words in your mouth, because I don't know. II A. -- pl"inted out, afte•· the fact, fo1· recount II A. This is-- this is-- if you're talking about a 12 purposes. The voter is going to see this, which is the 12 summary screen, this is an active voting screen that 13 summary screen; and it looks like a CVR. 13 is -- that a voter sees. Okay? 14 Q. Would you tell me what the difference between 14 It-- as a CVR, this is-- it looks just 15 the summary screen and the CVR is? 15 like the summary screen, but it's an actual image of 16 MS. THOMAS: Objection; form. 16 what the voter finally selected. 17 A. The summa1-y screen is a method by which a voter 17 Q. It's not a copy of what the voter says-- saw 18 can make a final decision. It tells them what they've 18 when he pressed that this -- "I'm okay with what I 19 selected so far and this is, sort of, a last chance, 19 already"-- 20 "A•·e you sm·e you got everything conect?" before they 20 A. Uh-huh. 21 hit the final cast ballot button. 21 Q. -- selected, right? 22 Okay. A CVR is the electronic captu1·e of 22 A. Uh-huh. 23 those choices. It's the image of the ballot. 23 Q. It's not a-- 24 Q. (BY MR. COHEN) Okay. So the --let me get 24 A. It is. 25 this right, because I'm having trouble with this. I'm 25 MS. THOMAS: Objection; form.

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1 not an election law expert, I must confess. Q. (BY MR. COHEN) Okay. 2 The CVR is a computer's rendition of what 2 A. It is a copy of it. 3 Exhibit I 0 says, for each voter; is that correct? 3 Q. The CVR is an actual copy of what the-- the 4 MS. THOMAS: Objection; fotm. 4 screen that voter sees -- 5 A. We have a definition ofCVR. I mean, it-- 5 A. Well-- 6 it-- it's not-- it's not special. It's-- the CVR 6 Q. -- when it decides not to make any changes; is 7 is-- it looks-- it is this. It's the electi'Onic 7 that correct? 8 record of the votes and action -- or the votes and 8 MS. THOMAS: Objection; form. 9 choices made by a vote•·, and it lool'8 like this. 9 A. I don't think I can draw that direct a 10 Q. (BY MR. COHEN) And the only difference, you're 10 parallel, no, because it's after they've-- no. II saying, is, the voter doesn't see it in this form? 11 Q. (BY MR. COHEN) Okay. Well, let's try this a 12 A. They do see it in that form. 12 different way. 13 Q. So what is the difference between a CVR and 13 A. You're-- you'•·e asking me an engineering 14 Exhibit 10? 14 question. 15 MS. THOMAS: Objection; form. 15 Q. Yeah. Okay. Well, ifyou can't answer it, 16 A. A summm-y sc1·een is the method by-- is the 16 that's fine. You just tell me that. I don't know 17 last screen that a voter is going to see when they're 17 whether it's an engine-- I don't how much you know. 18 voting, that gives them a last chance to make any 18 Okay. So what I'm trying to figure out 19 coJTections in those. So it's still an active voting 19 is-- I got to the point where I'm always at, where the 20 sc1·een. All right. 20 computer has asked me ifi -- what my selections are, 21 Q. (BY MR. COHEN) So you're saying the difference 21 my -- what I really want to do, and I push a button and 22 is, this -- that the -- this is what the voters see -- 22 say yes. 23 A. Voting, yes. 23 A. Right. 24 Q. --while they're voting-- 24 Q. Okay. How does that turn into something that 25 A. Right. 25 you count when you're counting the votes?

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I MS. THOMAS: Objection; form. I MS. THOMAS: Objection; form. 2 A. It's an electronic capture of what you last saw 2 A. They were made available and were sitting right 3 on your screen. 3 there at discovery, and we have no idea why y'all didn't 4 Q. (BY MR. COHEN) It's a picture of it? An image 4 look at them. 5 ofit? 5 Q. (BY MR. COHEN) Okay. It's-- I wasn't here, 6 A. An image of it, yes. 6 so that's a good answer. 7 Q. Okay. And the computer makes that image? 7 A. They were right there. 8 A. That's conect. 8 Q. All right. And so there are zero tapes -- 9 Q. Okay. And-- okay. And then that image goes 9 A. Yes. 10 where? 10 Q. --for these machines? II A. It's stored -- II And were there zero tapes done for these 12 MS. THOMAS: Objection; fonn. 12 machines in the next prior election they were used in? 13 THE WITNESS: Sorry. 13 A. I'm sorry. Would you say that again? 14 A. Stored in several places, but at least three 14 Q. Okay. As I understand it, what we want to do 15 places. 15 is, we want to make sure, when we use the machines, 16 Q. (BY MR. COHEN) Okay. And that's what you told 16 there's no other votes -- 17 me. Two of them in the ... 17 A. Correct. 18 A. Right. 18 Q. --in them. And when we're finished using the 19 Q. And then where-- what do you do with those 19 machines, there's no votes left in there. 20 images ofExhibit 10? 20 A. Correct. 21 MS. THOMAS: Objection; form. 21 Q. Okay. So what I want to know is, do you have 22 A. They are saved and backed up, and they're 22 some zero tapes for these very -- these same machines, 23 kept-- if it's a fede1"3l election, they are kept for 23 the last time they were used, before the runoff 24 22 months. All of the electronic and physical 24 election? 25 documentation is kept for 22 months. 25 A. I would think so, yes. I think so.

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I The actual equipment, once we've gone I Q. And do you have zero tapes-- do you do the 2 through all of the auditing and the canvass and 2 zero taping again, before you use the machines for the 3 evet-ything is final, then it's all zeroed out, sent back 3 next election? 4 to the warehouse and pt·epared for the next elections. 4 A. Yes. 5 Q. (BY MR. COHEN) And do you do some kind of 5 Q. So it's before and after? 6 computerized verification that you have zeroed out the 6 A. Correct. 7 equipment so there's no more votes that remain inside 7 Q. And are you saying that the before ones were 8 it? 8 also made available -- 9 A. Yes, we do. 9 A. Correct. 10 Q. Okay. We didn't see that for this election, in 10 Q. -- at discovery? Okay. I didn't see them, so II your records. I don't know whether it was -- lJ that why I was curious. 12 MS. THOMAS: Objection; form. 12 All right. Let's go back to Exhibit 13 Q. (BY MR. COHEN) --an oversight-- I-- I don't 13 No. 12. What does the error code-- well, first of all, 14 know if it was an oversight -- 14 what is the log used for, Exhibit 12 used for? What's 15 MS. THOMAS: It doesn't-- 15 the purpose of it? 16 Q. (BY MR. COHEN) -- but do you have that for 16 A. Oh, let's see. Well, these logs are used for 17 this election? 17 several purposes. 18 MR. COHEN: Can you wait until I finish 18 Q. Okay. 19 the question, please? Okay. 19 A. In general, they're going to track every single 20 Q. (BY MR. COHEN) Do you-- do you have it as an 20 step, everything that's happening at the counting 21 over-- any of that-- zero tapes? Is that what they 21 station on election night. So every time something's 22 call them, "zero tapes"? 22 turned on, every time something's turned off, every time 23 A. Yeah. 23 an entry happens. 24 Q. Okay. They don't have-- do you have zero 24 Q. In the central counting place -- 25 tapes for this election, for the runoff? 25 A. It is.

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I Q. -- like -- I the left-hand corner-- column, after the number, where 2 A. It is. It's 1·equired by law. So if you want 2 it's-- where it numbers the entries, it says "User." 3 to know, oh, well, somebody did this, 01· what time was 3 A. Yeah. 4 this p1·ecinct run, or how long did it take this precinct 4 Q. And it just says "tally" and then "admin." 5 to get fl·om here to he1·e, this is an incredibly helpful 5 "Admi." It doesn't identify which tally administer is 6 log. There's any numbe1·s of things, any number of 6 making the entry. 7 questions, that this type of log will answe1·. And it's 7 A. Okay. 8 used fo1· all kinds of questions, you know, either in the 8 Q. So is there some way to figure out who it was? 9 course of counting the ballots on election night or, 9 A. Uh-huh. 10 especially, afterwa1·ds. It's a --it's a useful audit 10 Q. How would we do that? 11 log for a lot of reasons. 11 A. We'll be happy to tell you. In fact, I-- we 12 Q. Okay. So would the audit log-- for instance, 12 may already have said that. 13 when you stop using it for a little while, will it show 13 Q. No. I-- 14 the time that you stopped using it? 14 A. I don't remember. 15 A. Uh-huh, uh-huh, uh-huh. 15 Q. If you have, please tell me you have; and if 16 Q. And then when you start using it again, it will 16 not-- 17 show you, okay, we're on it again? 17 A. Sure. 18 A. Yes, it will. 18 Q. --then let me know. Okay. 19 Q. Okay. 19 Now-- so if you look-- let's see 20 A. Everything. 20 where -- how do I get -- direct you here? 21 Q. All right. And there's a bunch of enor codes, 21 MS. PRESSLEY: Date and time exhibit. 22 I noticed, in -- in this. And -- 22 Q. (BY MR. COHEN) Okay. So look on the first 23 A. Okay. 23 page, and you see 12/05114. They're all-- I guess the 24 Q. -- well, let's look at the -- 24 time is going to be the easiest way. 10:03:18 a.m. It 25 MS. THOMAS: Objection; form. 25 says "Cross File Setting." Do you see that?

Page 74 Page 76 I Q. (BY MR. COHEN) --first page. I A. Yes. 2 MS. THOMAS: Wait for a question. 2 Q. Okay. Where is the logout? It says "login." 3 MR. COHEN: I haven't asked the question 3 I don't see where anybody logged out, from the 4 yet. 4 beginning. 5 MS. THOMAS: I know. I said, "Wait for a 5 MS. THOMAS: Objection; form. 6 question," before she starts -- 6 A. Yeah. 7 MR. COHEN: Oh. Okay. 7 Q. (BY MR. COHEN) Do you know if that's-- why-- 8 MS. THOMAS: --to answer. 8 why there isn't something that says -- I mean, I would 9 Q. (BY MR. COHEN) Okay. So on the first page, 9 expect it to say "logged out, I 0:13" and -- Io you'll see -- well, first of all, who is the tally 10 A. Right. Right. II administer that took care of this log? II Q. --"logged in at 10:20," or something like 12 MS. THOMAS: Objection; fonn. 12 that; but I don't see where it was ever logged out. 13 A. We never have just one person, because 13 A. Right. 14 there's-- it's chain of custody and because we-- you 14 Q. So how did-- when-- when was it logged in? 15 know, we-- we obsene what we call "clean counting." 15 A. Don't lmow. 16 So it'll be Julian and then at least two other people. 16 MS. THOMAS: Objection; fonn. 17 I would have to go back and look, to see who was on the 17 Q. (BY MR. COHEN) You don't know? 18 list. 18 A. No. 19 Q. (BY MR. COHEN) Okay. Would you mind-- you're 19 Q. Okay. That's fine. 20 going to get a copy of this deposition. Would you mind 20 THE REPORTER: One at a time, please. 21 filling their -- 21 Q. (BY MR. COHEN) Okay. Let's go to page-- 22 A. I can-- 22 well, let me ask you just a few other questions before 23 Q. --names in, please? 23 that. 24 A. --do that. 24 What is an MBB? 25 Q. All right. And then because it just says-- in 25 A. It's the mobile or removable device that stores

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I ballot information. Balloting. It's in the JBC. 1 counting station judges. Those judges make sure it's 2 Q. Okay. So when you send ballot -- 2 propel"ly received and checked off. Then it goes to the 3 A. It's the ballot box. 3 counting station piece of it -- 4 Q. When you take it from the precinct and it's all 4 Q. Okay. 5 checked before it goes into the police officer's 5 A. -- and it gets put into a reader that reads the 6 hands-- 6 card and puts it into the database-- it's a simple 7 A. Uh-huh. 7 database-- the database and tally, that says, okay, 8 Q. -- and then the police officer brings it to the 8 for-- for this vote centet·, we have this many votes 9 central counting area, did -- the MBB will be in there? 9 attributed to these precincts. It saves it up. 10 A. C01-rect. I0 We feed through a number of cards before, II Q. And then someone will open up the ballot box 11 typically, we accumulate it and then produce, for the 12 and use the MBB information to tally the votes; is that 12 public and media, a cumulative total. It may not be the 13 correct? 13 final one. So it's-- and we do that multiple times 14 A. The ballot box -- 14 during the night. 15 MS. THOMAS: Objection; form. 15 Q. How do you know that the computer properly 16 THE WITNESS: Sorry. 16 recorded the votes on the MBB? 17 A. The ballot box gets opened at the substation 17 A. Well, a numbet· of ways. There are audits that 18 when the official surrender is made. So law enforcement 18 are done that night, okay, to compare what comes out of 19 only carries the ballot box, which is the MBB, which is 19 Tally with-- with what went into Tally. In othet· 20 this little card. 20 words, the-- an independent confirmation of what was 21 Q. (BY MR. COHEN) Okay. And they take that to 21 the copy, 01· the information that was on the MBB, to 22 the central counting place -- 22 make sure it came out of Tally coJTectly. So we do that 23 A. Right. It's in -- 23 audit. And that is a proofing audit that's done before 24 Q. -- and then -- 24 the results are t·eleased. 25 A. -- a locked bag, along with all of the 25 Then we also do after-election-night

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I paperwork. 1 audits, priot· to the canvass, where we go back and we 2 Q. And then that's what's -- on -- the information 2 confit·m every detail we can find. Many of these details 3 on that computer chip -- 3 that we've just talked about, about them, you know-- 4 A. Uh-huh. 4 there are-- I mean, it's about-- elections are about 5 Q. --is what your office uses to figure out who 5 human beings. Thet·e can be any number of stories. We 6 got what votes? 6 go back and we confit·m all of that, pt·i01· to the 7 A. Correct. 7 canvass. 8 Q. Okay. And how do you go about doing that? 8 An audit is-- it is fat·- ranging. It 9 A. First step is the seals. I mentioned the list 9 doesn't really have any boundaries, per se. We check 10 of seals. The first step is, the seals get checked. 10 whatever we need to check. Then when the canvass is II At·e we sure we have all of the ballot boxes? Is thue 11 pt·epat·ed, that's the final. That's the official 12 two in this particulat· precinct, or is it just one? Are 12 results. 13 there any special exceptions that we need to think 13 Does that-- does that help you? 14 about? Do the number of names on the sign-up sheet 14 Q. So ifl -- ifl voted for Ms. Pressley but it 15 match the number of ballots on the card? 15 recorded -- but the computer said I voted for Mr. Casar, 16 And are there any othet· checks that we go 16 how are you going to find that out? 17 through? 17 A. Well-- all right. That gets back to the 18 Any affidavits, with anything special we 18 things that we wet·e going to talk about earliet·. There 19 need to consider, like was thue an emugency situation, 19 at·e three diffet·ent tests that we perform, that would-- 20 whue they have paper ballots that we have to take into 20 that would catch that prior 01" during voting. The first 21 consideration? Anything else. All of that is 21 test that's going to-- and so let me tell you what the 22 double-checked. 22 tht·ee tests are. 23 Then once we are clear of what-- what 23 Q Okay. 24 picture we have, then the ballot card, the-- there's a 24 A. Hash code testing, parallel monitoring, and 25 number on the MBB, as well. It gets written down by the 25 logic and accuracy testing.

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We-- and I've taught this all around the I camera, so that this-- this set of equipment thinks 2 country. I believe that if you employ those three tests 2 it's out in the field. It thinks it's behaving, you 3 with electronic voting, you have covered -- protected 3 know, not·mally. I mean, it-- in other words, it-- it 4 yourself against the criticisms about electronic voting, 4 doesn't know it's being specially observed. And it 5 if you use those tests. 5 doesn't know it's beent·andomly picked out of what's 6 Hash code testing says you are using the 6 been sent to the field. 7 software that is pi"Opel"ly certified to be used in your 7 So all day long, it's voted; and it's, 8 state for that particular system and that there is 8 typically, staff. It's kind of a fun thing. People go 9 nothing else resident on that software. No. 1. 9 in with a list of candidates they't·e supposed to vote. I0 No. 2, logic and accuracy testing, 10 It's double-checked so that we make sure we don't have II especially if you do it by hand with as much permutation II human errot·, which was our number-- it is our No. I 12 and volume as you can possibly manage, tells you the 12 problem. And then at the end of the day, we go in and 13 general mistakes that could get made, befm·e every 13 compat·e the known data of entry to what that system 14 election. A lot of jul"isdictions don't take it L & A 14 actually produces back out when you ask for a report 15 seriously. We take it extraordinarily seriously. 15 from it. And you can tell if anything-- a Trojan 16 It will tell you that you have every 16 horse, a something ot· other that was going to cause 17 candidate in the proper precinct; that you don't have 17 something to flip -- you can tell if that had happened 18 them in the wrong precinct; that every race has all the 18 or, you know, was-- if there is any record of that. So 19 candidates it's supposed to have, through every 19 you know, did anything go wrong during the day. You can 20 pet·mutation and combination that you can of. And we't·e 20 catch it at the time it happens. You can catch it 21 talking 900 formats in Travis County. It's a lot. 21 whenever you run the t·epot·t. So parallel monitoring, 22 It also has component to it about proofing 22 incredibly important. 23 so that you know you've got it spelled correctly and 23 Those-- with those three tests, that's 24 pronounced correctly on the audio. So L & A testing, 24 how we know. 25 inCI"edibly important. 25 Q. Okay. So, basically, that tells you that the

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I And then finally, the one thing that we've 1 software that you're using is not subject to some of the 2 added here in Travis County, for years, that, 2 vimses or Trojan horses that you feed into it, correct? 3 unfmtunately, most places don't use, and it's called 3 A. It's-- it-- 4 "parallel monitol"ing." And it addt·esses the kind of 4 MS. THOMAS: Objection; form. 5 threat attack that says that, "Oh, well, in electronic 5 A. --doesn't say it's not subject to it. It 6 voting systems, thet·e may be something embedded in the 6 says, for this election, we're going to go 7 software that I don't know about, that somebody planted 7 evidence-based; and we've proven, for this election, 8 in there, and that it's going to pop up at some unknown 8 it's functioning concctly. 9 moment." 9 Q. (BY MR. COHEN) And none of the things that 10 So the way pamllel monitoring works is, 10 you-- that you were looking for existed? 11 you say, okay, we't·e going to test against this. We're 11 A. Concct. 12 going to-- we't·e going to tl"ick the system into 12 Q. Okay. You are aware that hacking in this-- 13 thinking that -- okay. 13 in -- of computers has gotten completely pervasive? In 14 Well, the way it works is, at the vet·y 14 other words, they're hacking into the Depatiment of 15 last minute, we go into our inventm·y of unit -- systems 15 Defense records. They're hacking, you know, well, Sony. 16 of-- or pieces of nnits that at·e designated to go out 16 My God, you know. 17 into the field for election day -- we also perform it 17 A. Yes. I'm awat·e ofthose --all of those 18 fm· early voting, too-- and we say, okay, this random 18 stol"ies. 19 unit-- set of units right here, we't·e going to-- we're 19 Q. Yeah. So how do you know that your computers 20 going to pick them out and we't·e going to say, okay, 20 haven't been hacked? 21 this group, we' t·e going to keep fot· pamllel monitol"ing. 21 A. Well, fot· one thing, you have to have a 22 And we're going to send something else out into the 22 pathway, to hacl,. 23 field, but we're going to-- we're going to keep this 23 Q. Yeah? 24 and we're going to vote it randomly, during the day, 24 A. There is no pathway. 25 accm·ding to a known set of data, all day long, under 25 Q. What do you mean?

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I A. Sony, the Department of Defense, all of those I A. It says "Open Election," "User Login." 2 web-based situ -- circumstances that you look at -- 2 Q. Okay. So what does "Open Election" mean? Why 3 looked at, they all have a pathway. 3 is that -- what -- 4 eSlate voting system in Travis County has 4 A. I don't-- 5 no pathway. It's not connected to the Intemet. It's 5 Q. -- does that actually tell me? 6 not connected to anything. It's a closed system. 6 A. --we'd need to ask somebody who's more 7 Q. So you feel -- 7 familiar with the report. 8 A. So, first of all, you'd have to have a pathway. 8 Q. And you're going to give me the names of those 9 There are still ways to get pathways, but 9 people? 10 we have thought that through and we've done everything Io A. Yes, sil". II we can to shut off any of the other pathways. You have II Q. And then later on, down at about 12:30, it says 12 to have a pathway. 12 "Invalid/Corrupt MBB." What does that mean? 13 Q. Okay. So based on your belief that you have to 13 A. Oh, you can have an MBB that's-- doesn't read 14 have a pathway-- and I am certain-- probably no one 14 right, just like any-- I mean, it can happen. That's 15 pretends a Jot more about computers than I do, but I'm 15 why we have multiple redundancy. 16 just-- I-- personally, I'm just-- this has never-- 16 Q. Okay. So what do you do when you get a correct 17 personally, I'm just amazed at all of the hacking and 17 MBB? 18 computer manipulation -- 18 A. You pull one of other mediums. 19 A. Sca1·y. 19 Q. Like what? 20 Q. -- that's going on. And it's really scary if 20 A. Well, there are two in the JBC and then there's 21 it's affecting who we elect to be our politicians. Do 21 one, each, in any of the eSlates. 22 you agree with that? 22 Q. You pull a different MBB? 23 A. Absolutely. Couldn't-- couldn't ag•·ee you 23 A. Yes. 24 more. 24 Q. Oh, okay. But it's still an MBB you're looking 25 Q. Okay. And so you're doing your very best to 25 at?

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I prevent that from happening? I A. CoiTect. 2 A. Yes. 2 Q. Okay. And look -- I'm just -- further down, a 3 Q. Okay. All right. So now let's go to-- what 3 little bit, it says "MBB Not Closed." Do you know what 4 page am I on?-- in the log, in Exhibit 12, page 5. 4 that means? 5 A. Okay. Is this page 5? 5 A. No. I'm son-y. 6 Q. Yeah. So ifyou look at the entry of 6 Q. "MBB User Action"? Do you know what that 7 12:19 p.m., it says "Open Election." 7 means, right -- 8 MS. THOMAS: Objection; form. 8 A. I'm son-y. I don't. 9 A. "Open Election." 9 Q. -- right below it? 10 MS. THOMAS: Okay. 10 A. Right. I don't. II A. Okay. II Q. "MBB Inserted"? 12 Q. (BY MR. COHEN) Do you see that? 12 A. Well, that would mean that the ballot box got 13 A. Yes, I do. 13 inserted into the reade1·. 14 Q. There's a logoff before that -- 14 Q. You say -- you mean -- you think that means 15 A. Uh-huh. 15 from some other source, not the one that was COITupt? 16 Q. -- but I don't see a login. 16 Or do they put it -- 17 A. Right. 17 MS. THOMAS: Objection; form. 18 Q. So how does -- 18 Q. (BY MR. COHEN) --the corrupt one, back in? 19 A. Well-- 19 A. I don't-- I can't-- 20 Q. -- someone do that? 20 Q. You don't know? 21 A. -- it's right after that. 21 A. I can't tell if it's-- 22 MS. THOMAS: Objection to form. 22 Q. Okay. 23 A. It's right after it. 23 A. --a diffe1·eut BB -- MBB. 24 Q. (BY MR. COHEN) Where is -- where is the 24 Q. Do you know what the data column at the bottom 25 logoff? I'm -- 25 of the page means? "603 CVRs." What does that mean to

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I you? I Q. -- that looks -- 2 A. That's-- I don't. It's an ID number that 2 A. Yes. 3 could have to do with the MBB, but I don't. 3 Q. -- like Exhibit 7? 4 Q. Oh. Okay. And "Poll Ballot Now," what does 4 A. It is the paper ballot. 5 that mean? 5 Q. Okay. Please turn to the next page. What does 6 A. "Ballot Now" is the by-mail program. So this 6 it mean that an MBB is not closed? 7 would have been a by-mail -- 7 A. I'm sorry. I don't know. 8 Q. This MBB would-- 8 Q. Okay. So we've got a couple of those on this 9 A. -- ballot card. 9 page. And then what does it mean, at 12:31:35, that-- 10 Q. Oh, this MBB was a by-mail-- 10 it's a "Duplicate polling place." 11 A. Exactly. II A. We have-- I'm --I'm going to give you a 12 Q. --card? So you just look at the ballots that 12 little bit of information here. We have multiple MBBs 13 came in, right? 13 that come from our early voting locations. That's 14 A. Correct. 14 standard. And the system is always going to tell you if 15 Q. That's how you determine what should have been 15 it has more than one ballot box, wherever it is. 16 on the MBB? 16 Sometimes that's okay and you want to say, yes, it's a 17 A. (No verbalt·esponse.) 17 duplicate. 18 Q. Why would-- 18 So given that-- and Randalls Research is 19 MS. THOMAS: Objection; form. 19 an early voting location. 20 Q. (BY MR. COHEN) Why would there be an MBB on a 20 THE REPORTER: I'm sorry. Randalls 21 mail-in ballot? 21 Research what? 22 A. Oh, because they're tallied separately. Then 22 THE WITNESS: Randalls Research is an 23 you load them all together and then you put them into 23 early voting location. 24 Tally. You take that ballot box and put it into Tally. 24 A. That's as far as I can get you -- 25 Q. I've got you. 25 Q. (BY MR. COHEN) Okay.

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I A. They't·e processed as one unit. I A. --with that answer. 2 Q. And you preserve the mail-in ballots when you 2 Q. Okay. But you would not count a duplicate -- 3 do that? 3 A. No. Well, yes, if it's-- if you're expecting 4 A. Conect. 4 five-- 5 Q. That's one of the-- Exhibit 7 or 8? 5 MS. THOMAS: I'm going to object. He 6 A. Yes, but-- 6 didn't finish his question. 7 Q. Okay. 7 THE WITNESS: I'm sorry. 8 MS. THOMAS: Objection; form. 8 MS. THOMAS: Let him ask the question. 9 A. --you don't pt·eset-ve this. You preserve this. 9 THE WITNESS: I'm sorry. 10 Q. (BY MR. COHEN) How do you make this 10, from 10 Q. (BY MR. COHEN) You would only-- are you II 7? II telling me that you would only count the duplicate 12 MS. THOMAS: Objection; form. 12 polling place infonnation if it was an early voting MBB? 13 Answer if you can, but-- 13 A. No. 14 A. It's complicated. This is what gets saved. 14 MS. THOMAS: Objection; form. 15 This does not -- this does not get saved. It -- and the 15 A. No. You could have two ballot boxes from an 16 t·eason is because we have the paper. There's no need to 16 election day polling place. But you would have a record 17 ct·eate this image, because we have the paper. 17 that you -- you were expecting two ballot boxes; 18 This is what gets saved, to be counted. 18 therefm·e, you would accept two. Right. We have 19 This is the format that you use, to put into the 19 records to-- to accept that. But Tally doesn't know 20 database, to count it. 20 anything. It's only a database. So it's going to ask 21 Q. (BY MR. COHEN) Okay. And what you save, 21 you, "Oh, wait. I've already counted one ballot box 22 though, is the paper thing that came in the mail -- 22 from this location. Why are you giving me another one?" 23 A. Co!Tect. 23 That's what that means. 24 Q. --through the mail -- 24 Q. (BY MR. COHEN) Okay. That's what that entry 25 A. Yes. 25 is telling you?

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I A. Yeah. I THE WITNESS: Here it is. 2 Q. Okay. Let's turn to page 8, at 3:24. Do you 2 MS. THOMAS: Okay. 3 have any reason why there's two hours between a logoff 3 Q. (BY MR. COHEN) Yeah. It's the second from the 4 and a login? 4 top. I'm sorry. 5 A. Nothing would be happening then. 5 A. Okay. 6 Q. Okay. 6 Q. I haven't seen anywhere in this audit log 7 A. Quiet. 7 what -- where it tells you what it did when it found a 8 Q. Page 9. I'm curious what this means. These 8 con·upt MBB. Do you-- is that... 9 things just seem irregular to me, so you have to clear 9 A. Yeah. There would be other documentation that 10 them up. 10 will tell you what happened. I can't tell you. II MS. THOMAS: Objection-- II Q. Where would that documentation be? 12 THE REPORTER: I missed it. Can you-- 12 A. In the counting station records. 13 Q. (BY MR. COl-lEN) It seems irregular to me, to 13 Q. The county what? 14 have "Vote Adjustment Precinct"; so please tell me what 14 A. In the counting station records-- 15 that means. 15 Q. Okay. 16 A. "Vote Adjustment Precinct." 16 A. --of that night. 17 MS. THOMAS: Objection; form. 17 Q. And you have produced that for us? 18 A. I see. 18 A. Yes. 19 Q. (BY MR. COHEN) You see it all the way down 19 MS. THOMAS: Objection; form. 20 that page, on page 9, correct? 20 It all depends on what was covered by the 21 A. Yes, I do. Hang on. I'm sorry. We would have 21 order, so I don't know-- I can't say. So I'll have to 22 to ask. I don't know. 22 go back and check. I just don't recall, and I didn't 23 Q. Okay. On page 14, at 4:45, it says "MBB 23 want her to be committing to something that she -- 24 already read by Tally" -- 24 THE WITNESS: Okay. 25 MS. THOMAS: Hang on just a second. 25 MS. THOMAS: --didn't know about. So

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Q. (BY MR. COHEN) Oh, I'm sorry. You're not I I'm-- 2 there yet? 2 THE WITNESS: Okay. 3 MS. THOMAS: She's not there. 3 MS. THOMAS: --going to have to go back 4 Q. (BY MR. COHEN) Page 14. Are you there? 4 and look. 5 A. Yeah. 5 MR. COHEN: Okay. 6 Q. Doyouseeat4:15:45? 6 Q. (BY MR. COHEN) You don't know whether you 7 A. Yes. 7 produced this or not? 8 Q. "MBB already read by Tally." 8 I mean, I think what your lawyer is 9 A. Right. 9 telling me is, your answer is that if you were-- 10 Q. What does that mean? 10 A. That it should have been-- II A. 'Veil, that's telling yon, "Are you sure you'•·e II Q. --required to produce it-- 12 not mal

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1 Q. Okay. And then there's another one a little 1 Q. --I'm sure nobody has, correct? 2 further down, again. And then there -- it says "MBB 2 A. Yeah. It-- 3 already read by Tally." Do you see that? There's three 3 MS. THOMAS: Objection; form. 4 of those in a row. 4 A. I suspect there's something wrong with the 5 A. Uh-huh. Uh-huh. 5 reader, not the MBBs. 6 Q. Do you have any idea what that --what happened 6 Q. (BY MR. COHEN) Okay. So you think-- your 7 as a result of that? 7 suspicion is that there was something wrong with the 8 A. I'm sorry. I don't. 8 reader that night? 9 Q. Okay. You don't have to know everything. 9 A. Correct. 10 All right. Now let's go to page 26. And 10 MS. THOMAS: Objection; form. II I know this is a little repetitious, but we're going to II Q. (BY MR. COHEN) And then later on, it says, 12 get there. 12 "Duplicate polling place," later, down on that page 42. 13 When you see-- at 8:53, there's another 13 And I believe you testified already as to what that 14 invalid or corrupt MBB, and I'm supposing your testimony 14 meant to you, but you don't know with this particular 15 is still that you don't know what happened-- 15 one. Is there any pmiicular one, that was the-- 16 A. No. 16 A. Duplicate-- are you saying "Duplicate polling 17 Q. --withthatMBB. 17 place"? 18 A. I don't remember. 18 Q. Yeah, yeah. 19 Q. Okay. And again, on the next page, there's two 19 A. Yes, I'm-- I'm unsure what it is. 20 more of those "Corrupt/Invalid MBBs." 20 Q. And the next page --have you ever seen this 21 A. Same answer. 21 many "Duplicate polling places" on one of your logs? 22 Q. Same answer. 22 A. Uh-huh. 23 And then on page 29, there's another one. 23 Q. That's pretty common? 24 It's about four or five lines down. 24 A. Yeah. 25 A. Same answer. 25 Q. Okay. Because there's a bunch of them on the

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I Q. All right. Okay. And then on page 42 --I 1 next page and on the next page. Are you sure you've 2 know it seems silly to you, but it's not. 2 seen this a lot, on the -- 3 A. It's all right. 3 A. Yeah. Yeah. It's not unusual. 4 Q. On page 42, you'll see, at 10:12, another 4 Q. Okay. It's not unusual to have a lot of 5 corrupt MBB; and you're not going to be able to tell me 5 "Duplicate polling place" entries on the audit log, 6 what happened to that MBB? 6 correct? 7 A. Same answer. 7 A. No, it's not. 8 Q. So you don't know when -- when we see -- 8 Q. All right. Let's see. This is page 57, second 9 A. I don't remember what-- I mean, corrupted MBBs 9 to the last page. If you will look on the bottom, it 10 are a little unusual. We seem to have had a little 10 starts out January 13th, 2015, and it goes through II trouble that night-- II July 5th, 2015. 12 Q. Yeah. 12 MS. THOMAS: I'm sorry. Say that again. 13 A. -- but I -- I -- I mean, you put it in once and 13 THE WITNESS: I think he means these dates 14 maybe it-- you know, you put it in a second time and it 14 here. 15 reads just fine. You know how that is. 15 Q. (BY MR. COHEN) Page 57. You see, at the 16 Q. Well, so you answered-- you answered my-- one 16 bottom? 17 of my questions was going to be, after I went through 17 A. Okay. 18 all of these, it's a little unusual to have so many 18 Q. And it goes on to the next page, all the way 19 invalid MBBs in an election tally, isn't it? 19 till February 5th, 2015, at 11:17 a.m. 20 A. I've never heard of so many-- 20 A. I am not -- 21 Q. Okay. 21 MS. THOMAS: Can you repeat the question? 22 A. -- but pe1'11aps we need to ask. There could 22 I don't-- 23 have been something-- 23 A. We're not finding it. 24 Q. If you've never heard of so many-- 24 Q. (BY MR. COHEN) You don't find, on page 57-- 25 A. Yeah. Well-- 25 A. Huh-uh. 57 --

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I Q. 1/13 is the date, 2015. I Q. But in the system that you're using, the hard 2 MS. THOMAS: You were-- said something 2 system, there is a paper copy, correct? 3 like "July," so that's what I was ... 3 A. No. 4 A. Oh. Okay. So 1/13. Okay. 4 MS. THOMAS: Objection; form. 5 Q. (BY MR. COHEN) Do you see that? 5 Q. (BY MR. COHEN) Okay. There's no paper copy of 6 A. Yes. 6 the ... 7 Q. It says "user logoff'? 7 A. (Moved head side to side.) 8 MS. THOMAS: Uh-huh. 8 Q. Okay. So when you do the recount, what do you 9 A. Okay. 9 look at to verif'y that the computer accurately recorded 10 Q. (BY MR. COHEN) Why is someone going in and out I0 the votes? II of the MBBs for two weeks, so far after the election? II A. Well, I'm not sure which answer you're looking 12 It's about seven days with no activity at all; just 12 for. It's-- you can print out copies of the cast vote 13 logging in and out of the machine. Do you have any 13 records; so we did that. There at·e other ways to 14 idea? 14 confirm the cast vote records without printing out, so 15 A. Well, we do-- as I mentioned, we do a lot of 15 I-- I don't know which one you want. 16 audits. We will be preparing canvass reports. I think 16 Q. Well, let me ask you this: Which one did you 17 there's a lot of reasons. And the machine is going to 17 do in this runoff election? 18 keep track of any time we go in and out. 18 A. Both. 19 Q. Well-- 19 Q. Okay. What is the other one? 20 A. You would have to ask them what they were 20 A. When we were talking about the list of security 21 doing. 21 steps that we go through and the audits that we go 22 Q. Okay. 22 through, that's that lengthy list of all those audits. 23 A. It's public information. 23 All the comparisons, the simple ones, like number of 24 Q. The first logoff was 1/13/2015, correct? 24 names to number of votes; you know, any-- anything that 25 MS. THOMAS: Objection; form. 25 happened in the precinct; any affidavits that say, okay,

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1 Q. (BY MR. COHEN) Do you see what I'm referring I perhaps we had a fleeing voter; perhaps we had one of 2 to there? 2 our voting machines that went down. Any story in the 3 A. It says that. 3 precinct, you're going to include that. Spoiled 4 Q. Okay. It was-- it wasn't logged in again for 4 ballots; any sunendered by-mail ballots. Anything 5 another week. Can you explain that? 5 that's going to be what you would call a "reconciling 6 A. Two weeks. 6 item," all of those would be considered as part of the 7 Q. Two weeks. Yeah. Can you explain that? 7 audit. So that's what yon would do, other than printing 8 A. No activity. 8 out and hand-tabulating the cast vote records. 9 Q. Okay. Wait. Do you know what a DREis? 9 Q. And so you printed out and tabulated the cast 10 A. I'm sorry. Can you say it again? I0 vote records? II Q. ADRE? II A. Y cab. Correct. 12 A. DRE? Dit·cct-recording electronic. 12 Q. That's what the computer said the people voted? 13 Q. Yeah. What is that? Explain it for us. 13 A. Correct. 14 A. It's a voting system. Direct-t·ecording 14 Q. That's what the computer says-- 15 electt·onic says that you're using an intel'face, an 15 A. That's correct. 16 electronic interface, to recot·d yom· choices. There's 16 Q. --the CVRs that were created at the time of 17 not a --there's not a piece of papet·. It's 17 the election, that's -- that's what the computer says, 18 dit-ect-recording electronic. 18 correct? 19 Q. So that goes right into the computer and 19 A. Correct. Well, both. The hand tally and the 20 there's no copy of a ballot cast? 20 computet· agreed. 21 A. Correct. 21 Q. The hand tally of the computer records? 22 Q. Okay. 22 A. Conect. 23 A. Not a paper copy. 23 Q. Yeah. Okay. So-- so the computer is creating 24 Q. Not a paper copy. 24 a record; and if someone complains about the results, 25 A. Uh-huh. 25 then you can count what the computer said?

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A. Right. 1 balanced"? 2 Q. I'm sorry. How does that-- how are you 2 A. Balanced. 3 double-checking your computer when you're just counting 3 Q. What do you mean by that? 4 what the computer said? 4 A. The number of ballots voted matched the numbet· 5 A. Well, because thet·e at·e a lot of othet· audits 5 of people who wet·e voting, in that entire picture. 6 that go into proving what went into it and was col'l'ect 6 Q. Okay. I-- 7 to begin with. 7 A. That's what we're looking at. 8 Q. So you double-check with all different kinds of 8 Q. --got that. But you don't know whether the 9 things, to see ifthere's something that happened that 9 computer accurately recorded who those people voted for, 10 would make the computer record unreliable? 10 do you? 11 A. Coi'J'ect. II MS. THOMAS: Objection; form. 12 Q. Is that what you're saying? 12 Q. (BY MR. COI-IEN) Except what the computer tells 13 A. Col'l'ect. 13 you. 14 Q. Okay. So you go through a bunch oftests. You 14 MS. THOMAS: Objection; form. 15 find that-- nothing unusual that would make you 15 A. I have every reason to believe that the system 16 question the computer record; and so then you take the 16 opemted COtTectly and accurately. 17 computer record as true. Am I saying it correct? 17 Q. (BY MR. COHEN) Okay. But you really don't 18 A. No. 18 know. 19 Q. Did I get that right? 19 MS. THOMAS: Objection; form. 20 A. No. 20 A. I have every reason to believe the system 21 Q. Okay. 21 operated accurately and col'l'ectly -- 22 A. No. 22 Q. (BY MR. COHEN) That's because you have-- 23 Q. That's what I thought you said. So you have a 23 A. -- meaning -- 24 computer record, okay? And it's -- and you make copies 24 Q. --the same amount of votes -- 25 of what the computer says each voter voted for-- 25 A. -- because I have lots of--

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1 MS. THOMAS: Objection; form. I THE REPORTER: One at a time, please. 2 Q. (BY MR. COHEN) --is that correct? 2 MR. COHEN: I'm sorry. 3 A. We normally wouldn't pl'int out-- 3 Q. (BY MR. COHEN) Go ahead. I'm sorry. I didn't 4 Q. The CV -- 4 mean to cut you off. I thought you were done. 5 A. -- CVR records -- 5 So that's because you have the same amount 6 Q. Okay. How would you normally-- 6 of votes -- one example is -- as the votes that were -- 7 A. -- at all. 7 that the computer says were cast. You have the same 8 Q. --do it? 8 amount of people signing in. 9 A. Not·mally, we would follow om· audit procedut·es 9 MS. THOMAS: Objection; form. 10 for reconciling all of the particular categories that 10 A. Oversimplification. II might happen to a ballot, evet·ything, you know, ft·om -- II Q. (BY MR. COHEN) Okay. Let me charge at it this 12 from the beginning, including watching over the parallel 12 way. You-- because of the systems that you have put in 13 monitoring. All of those tests and contt·ols that we put 13 place that you think is the best way to be sure of 14 in place. 14 this-- 15 Q. So normally, you would just make sure nothing 15 A. Uh-huh. Uh-huh. 16 unusual happened; is that correct? 16 Q. --you think-- you have no reason to believe 17 A. Well, I wouldn't-- 17 that the computer recorded the votes the way the people 18 MS. THOMAS: Objection; fonn. 18 voted. Is that what you're saying? 19 A. I would categm·ize it as a little bit mot·e 19 MS. THOMAS: Objection; form. 20 tightly controlled than that, but okay. 20 A. I have every reason to believe the system 21 Q. (BY MR. COHEN) Okay. And in this case, you're 21 behaved accurately and coi'J'ectly. I have no indication, 22 not-- you're not only --you didn't see anything 22 evidence, to show anything otherwise. 23 unusual that happened on the ground -- 23 Q. (BY MR. COHEN) Okay. And you don't-- you 24 A. Everything balanced. We're tall•ing fact-based. 24 don't have any evidence to show that the computer 25 Q. Yeah. What do you mean by "everything 25 accurately recorded who everybody voted for?

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MS. THOMAS: Objection; fonn. Q. And then-- and February 5th, the user logged 2 A. Every voter has a summary screen to verify what 2 in. 3 their choices were, before they cast the vote record. I 3 A. Uh-huh. 4 think we've got every reason to believe it's an 4 (Sotto voce discussion between 5 accurate, fair representation of what everybody voted. 5 Ms. Pressley and Mr. Cohen.) 6 And I-- I recognize that there are people 6 MR. COHEN: I've got it. Okay. That's 7 who still want to grind that; but if we can just say, 7 why I didn't get the question right. 8 right now, I have every reason to believe that it is a 8 Q. (BY MR. COHEN) All right. Let's go up a 9 fait· and accurate system. 9 little bit higher and see 12:43, where it says 10 Q. (BY MR. COHEN) Okay. 10 "Viewed/Printed Report." II MS. THOMAS: Mark, we've been going for an II A. Yes. 12 hour, so when you're at a stopping point, just let us 12 Q. On I --on January 6th? Do you see that? 13 know. 13 A. I do. 14 MR. COHEN: We could. I'm just-- yeah, 14 Q. Okay. This computer had a lot of really 15 okay. If you want to take-- it won't be much more. 15 important stuff on it that shouldn't be open to anybody 16 Like-- 16 to have access to it, or anything like that, correct? 17 MS. THOMAS: Oh, that's fine. Yeah. I 17 MS. THOMAS: Objection; fom1. 18 mean-- 18 Mischaracterizing -- 19 MR. COHEN: Ifyou want to go through 19 Q. (BY MR. COHEN) --except the people that 20 lunch or something and just take a short break right 20 were-- 21 now, that's fine. 21 A. Yeah. Mischaracterizing. I-- 22 THE WITNESS: I'm good. 22 Q. (BY MR. COHEN) You don't-- okay. So what I'm 23 MS. THOMAS: What time it is it now? 23 curious about is, there's a week between the last thing 24 MR. COI-IEN: Okay. Because -- it's II :48. 24 that was done on this log, audit log, and the logoff. 25 MS. THOMAS: Do you think we can get 25 Would you call that a security way to handle it, the

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1 done-- I best way to handle that, from a security point of view? 2 THE WITNESS: Like 12:30, a quarter of 2 A. I would not make that -- 3 1 :00. That way -- unless Mr. Herring is going to have 3 MS. THOMAS: Objection; fonn. 4 some more questions. 4 A. Yeah, I would not make that charactel'ization at 5 MR. HERRING: Ifl have any, it will be 5 all. 6 brief. 6 Q. (BY MR. COHEN) Yeah, you would think there was 7 MS. THOMAS: You shall not. 7 something wrong with that, right? 8 MR. COHEN: Okay. Well, let's take a-- 8 A. No, I would not-- 9 how much of a break do you want to take? 9 MS. THOMAS: Objection; form. 10 THE WITNESS: I'm good. 10 A. --think the1·e's something wrong. 11 MS. THOMAS: Do you want-- okay. If II THE REPORTER: One at a time, please. 12 she's ready to go, then let's go. We'll-- 12 Q. (BY MR. COHEN) You wouldn't like the-- 13 MR. COHEN: Well, let's take a five-minute 13 MS. THOMAS: Just give me a chance to 14 break. 14 make my -- 15 (Recess 11 :4 7 a.m. to II :57 a.m.) 15 THE WITNESS: Sorry. Okay. 16 Q. (BY MR. COHEN) Take another look at 16 MS. THOMAS: --objection. 17 Exhibit 12, and then I'll be finished with this exhibit. 17 TI-IE REPORTER: I need to get all of you. 18 A. Okay. 18 MR. COHEN: Yeah. 19 Q. Go back to the second to the last page, 57. We 19 A. (BY MR. COHEN) So it doesn't bothe1· you that 20 were talking about all of these --let me know when 20 the compute•· was not logged -- was open to access for a 21 you're there. 21 week, befm·e it was logged off on? 22 See down at the bottom there, where it 22 MS. THOMAS: Objection; form. 23 says at-- on January 13th, at 2:11, the user logged 23 Q. (BY MR. COHEN) Does that bother you? That 24 off? 24 doesn't bother you; is that correct? 25 A. Yes. 25 A. I --I--

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4570 Page 29 (Pages 113-116) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 113 Page 115 1 MS. THOMAS: Objection; fonn. 1 to the judge about it. 2 A. Okay. I-- I don't buy that it was left open. 2 MS. THOMAS: Objection; form and sidebar. 3 I think that's incorrect. 3 Q. (BY MR. COHEN) So the question is, it would 4 Q. (BY MR. COHEN) Oh. So the only other 4 not bother you -- I'm just asking you. It would bother 5 conclusion is, the person who kept the log didn't 5 me, if it was my computer, but if it-- 6 notice -- didn't enter an entry that they had logged off 6 MS. THOMAS: Objection; form. 7 before that? 7 Q. (BY MR. COHEN) -- if it doesn't bother you-- 8 MS. THOMAS: Objection; fom1. 8 just tell me whether it bothers you, if it's true that 9 Q. (BY MR. COHEN) Is that what you're saying? 9 the computer stayed logged in for a seven days, without 10 A. No. 10 any activity. 11 Q. Well, okay. Explain this to me. It was used 11 A. I doubt it's true. I doubt it's true. 12 on January 6th-- do you see that?-- at 12:43:16 p.m. 12 Q. You think the log doesn't-- the log is wrong. 13 Do you see that? "View/Printed Report." 13 A. Yeah. 14 A. Correct. 14 MS. THOMAS: Objection; form. 15 Q. There is no other entry until it was logged off 15 Q. (BY MR. COHEN) Okay. If you think the log is 16 on January 13th. Is that correct? 16 wrong, that's-- 17 A. That's what the report says. 17 MS. THOMAS: Objection; form. 18 Q. Okay. Do you note believe the report? 18 Mischaracterizing what she said. 19 MS. THOMAS: Objection; fonn. 19 MR. COHEN: I'm asking her. 20 A. I don't know what the coding means. We need to 20 MS. THOMAS: No. 21 ask. 21 MR. COHEN: Yes, I-- 22 Q. (BY MR. COHEN) I'm sorry what did you say? 22 MS. THOMAS: You're telling her what she 23 A. I don't know what the coding means. We need to 23 said. 24 ask. 24 MR. COHEN: No. I said, "Do you think the 25 Q. The coding means. 25 log is wrong?" That's what I said.

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1 I don't get that. Tell me what you mean I MS. THOMAS: Do you want to go back and 2 by-- 2 look at the record? 3 A. I don't know-- 3 MR. COHEN: That's what I --okay. 4 Q. --you don't know-- 4 MS. THOMAS: If you have a question, ask a 5 A. I don't what this coding means. 5 question. 6 Q. --what the coding means. 6 MR. COHEN: Okay. You can object. Keep 7 A. I don't know what it means. 7 your comments to yourself. Okay? You're not allowed -- 8 Q. Are you talking about the description? 8 MS. THOMAS: I can-- if you're 9 A. Yes. 9 mischaracterizing -- 10 Q. Okay. So you don't know why it wasn't 10 MR. COHEN: --to make-- 11 logged -- it's not entered as being logged off? Is that 11 MS. THOMAS: --her testimony -- 12 what you're saying? 12 MR. COHEN: I didn't ask why you made an 13 A. Conect. 13 objection. 14 Q. Okay. 14 MS. THOMAS: --okay, I will-- 15 A. I don't lmow what this means. 15 MR. COHEN: I didn't ask you why you made 16 Q. Okay. If it-- if this meant that the computer 16 an objection. You are not allowed to talk. Follow the 17 was not logged off for a week, would that cause you some 17 Rules, please. 18 concern? 18 MS. THOMAS: I am going to follow the 19 A. I don't believe-- 19 Rules. 20 MS. THOMAS: Objection; form. 20 Q. (BY MR. COI-IEN) My question is -- 21 A. --that's true. 21 MS. THOMAS: Ask a question. 22 MS. THOMAS: Give me a chance to object. 22 Q. (BY MR. COHEN) --does it bother you that the 23 Objection; fotm. 23 computer is not -- it seems to be logged on for a week? 24 Q. (BY MR. COHEN) See, yeah, she objects to 24 A. I don't think that's true. 25 everything, so just don't pay attention. We will talk 25 Q. Okay. So are you telling me that you think the

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I audit log is wrong? I of an official ballot, under the statutes? 2 MS. THOMAS: Objection; form. 2 A. Accot·ding to the -- 3 A. I don't know. 3 MS. THOMAS: Objection; form. 4 MR. COHEN: I wish Judge Dietz had this 4 Go ahead. 5 case. You would be in so much trouble. 5 Q. According to the EAC and Secretary of State, 6 THE REPORTER: Is that on or off? 6 yes. 7 MS. THOMAS: It doesn't matter. He's got 7 THE REPORTER: I'm sorry. Can you say-- 8 a lot of stuff on there that's appropriate for the judge 8 THE WITNESS: According to the EAC and the 9 to see. 9 Secretary of State, yes. It's an official ballot. 10 Q. (BY MR. COHEN) Okay. Do CVRs have voting 10 Q. (BY MR. COHEN) Okay. But that's-- that's II squares? Do you know what I mean by a "voting square"? II what they say, but is there something in the statutes 12 A. Like this? 12 that say that? 13 Q. Yeah, like that. 13 MS. THOMAS: Objection; form. 14 A. No. 14 Q. (BY MR. COHEN) Do you know? 15 Q. Okay. Do CVRs have instructions on how to vote 15 A. It's an official ballot. 16 on them? 16 Q. Okay. Do you know of a statute that says that 17 A. No. 17 a CVR is an official ballot? 18 Q. Do CVRs have the date of the election written 18 A. I don't recall it, off the top of my head. I 19 on them? 19 can look. 20 A. I think so. It has the name of the election on 20 Q. I'll show you what's marked as Exhibit No. 11. 21 it. 21 I don't know where the actual number went. 22 Q. Okay. But not the date of the election? 22 MS. PRESSLEY: I know. You've got to 23 A. Well, the-- the date would be the name, but it 23 number it. 24 doesn't have the date spelled out. So the -- 24 MR. COHEN: Hold on just one second, all 25 Q. Right. That's my question. 25 right?

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A. --name of the runoff-- the name of the runoff Q. (BY MR. COHEN) I'll show you what's marked as 2 election would be the -- I mean, you would infer the 2 Exhibit No. 11. Tell me what that is. 3 date. 3 A. I'm not sure. What is this? 4 Q. Okay. Does the CVR have a number on it so that 4 Q. Well, does it look like it could be the CVR -- 5 you could make sure --you can compare it to the number 5 the recount CVR file? 6 of-- for the voter? 6 A. I believe -- 7 A. What? 7 MS. THOMAS: Objection; form. 8 Q. Does the CVR have a serial number on it? Let 8 If you don't know what that is, just tell 9 me just ask it that way. 9 him. 10 A. I'm not sure-- 10 A. I'm-- I'm sorry. I-- it-- the fot·mat -- II Q. Okay. 11 MR. COHEN: Would you please stop coaching 12 A. -- about-- I'm not sm·e how to answer your 12 your witness? 13 question. 13 MS. THOMAS: Well-- 14 Q. Does the Ballot Now system keep image-- store 14 MR. COHEN: I'm going to call the-- you 15 images of the ballot that the voter looks at when 15 just told her, if she doesn't know what it is, what to 16 they're deciding which candidate to vote for? 16 answer. 17 A. Ballot Now would be the paper that people at·e 17 MS. THOMAS: Well, but she already-- 18 voting on, so there's no -- thet·e's no decision 18 MR. COHEN: You can't do that. 19 interface. It's the paper. Ballot Now does not keep an 19 MS. THOMAS: --said she-- 20 image of the paper. 20 MR. COHEN: She is the one-- 21 Q. Is the CVR an official ballot? Does it say 21 MS. THOMAS: --doesn't know what it is. 22 "Official Ballot" on it or ... 22 MR. COHEN: --testifying, not you. 23 MS. THOMAS: Objection; form. 23 You -- you -- 24 A. I don't think so. 24 MS. THOMAS: She already said she doesn't 25 Q. (BY MR. COHEN) Does it meet the requirements 25 know what it is.

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MR. COHEN: Then let her testifY to that. I A. Gosh, I need a calendar. What is the 4th, 5th, 2 That's fine. I don't want you saying anything. It's 2 and 6th? 3 against the Rules. 3 Q. Well, let me just help you. 4 MR. HERRING: Mr. Cohen, you need to lower 4 A. Okay. 5 your voice. 5 Q. The recounts, I think, started at II :00 a.m. on 6 MS. THOMAS: You need to-- 6 the 6th. 7 MR. COHEN: So please stop. I'm almost 7 A. Okay. 8 done. Just-- if you want to make 25 zillion ridiculous 8 Q. And what I'm after is, I want to know if your 9 objections, you go right ahead; but don't tell her 9 office did anything prior to the recount being 10 what-- don't make any comment, except "Objection, 10 conducted. 11 form." II A. Oh. Well, sure. 12 MS. THOMAS: Mr. Cohen-- 12 Q. Okay. What did you do? 13 MR. COHEN: And that's all you get to do. 13 A. Well, we called around and lined up some people 14 MS. THOMAS: --if you've got a problem, 14 to be available for the recount. We m·ganized the J"Oom 15 take it to the judge. 15 so that it was set up for that, so thet·e was some 16 MR. COHEN: Yeah. 16 physical things that we had to do. 17 MS. THOMAS: But right now-- 17 I did some work on it, because I had a 18 MR. COHEN: Well, you're still doing it. 18 conversation with Laura, twice, on the Sunday befot·e, 19 MS. THOMAS: --she already told you-- 19 about how we could help. She was concemed about the 20 MR. COHEN: You're still doing it. You're 20 amount of time and about the cost for doing it. And so 21 still violating the Rule. 21 I had said, "Okay. Maybe there at·e some things that we 22 MS. THOMAS: You're the one-- 22 can do to organize it for you so it's quicker to get 23 MR. COHEN: Why don't you just stop? 23 through." 24 MS. THOMAS: If you have a problem, take 24 And in my second conversation with her-- 25 it to the judge. 25 my first conversation, I tried to explain to her the

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I MR. CO HEN: I have a question for the -- I differences between a recount and an audit. And I had 2 MS. THOMAS: Ask her the-- 2 suggested that an audit was a better way to go, and that 3 MR. COHEN: --for the witness. 3 suggestion was not taken. But in-- on that Sunday, we 4 MS. THOMAS: -- question, then. 4 did have a bright idea that-- we figured out a way to 5 MR. COHEN: I did. I asked her a 5 make it quicker for bet· to be able to go in and pick out 6 question, and now that you've talked so many times and 6 the precincts that she wanted, without having to deal 7 told her all what to say -- 7 with all the t•est of the races. And so on Sunday, we 8 MS. THOMAS: I did not. 8 went tht·ough and we printed out bet· cast vote records 9 MR. COHEN: --we don't really know what 9 just fot· the District 4 t·unoff. And it was vet-y clever, 10 the question was anymore-- 10 very cheap, very easy. We figured out that if we put a II MR. HERRING: Mr. Cohen-- II colored sheet ofpapet· in between her pt·ecincts, then 12 MR. COHEN: --so I'll ask it again. 12 she could tell how big the precinct is, how little, so 13 MR. HERRING: --ask the question. Move 13 that she could decide whet·e she wanted to stm·t. So we 14 on. Stop yelling. 14 printed out her CVRs, in advance, with an aqua piece of 15 Q. (BY MR. COHEN) Does that look, to you, like it 15 paper in between. So we did that in advance. 16 could be the recount CVR file? 16 Then when we got thet·e on Monday moming, 17 A. Maybe. Here is the-- Marl•, here is what my 17 a little befm·e the 11 o'clock start, and told her we 18 problem is with it: I don't t·ecognize the format, at 18 had come up with this fabulous idea that was going to be 19 all. 19 a big help to her-- and we discovet·ed that that was not 20 Q. Yeah. Okay. That's-- 20 okay. Our efforts were not appreciated. So we tt·ashed 21 A. The data might be something I'd recognize, but 21 those, recycled it, and reprinted the whole thing again. 22 this is completely unfamiliar to me. 22 And othet· than some other details to get 23 Q. That's perfectly all right. Thank you. 23 m·ganized for it, some phone calls with the City, that's 24 Okay. Did your office have any recount 24 basically it. 25 activities on January 4th, 5th, or 6th? 25 Q. Okay. Were the MBBs used in the runoff, the

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1 same ones that were used in the general election? 1 fits a much shortet· ballot than what we have today. 2 A. No. 2 Nevertheless, we comply with that, the spirit of that 3 Q. Brand new ones? 3 law, and leave a note on the door that says, "Here's 4 A. Absolutely. 4 what happened in this precinct," and then we-- you 5 Q. Okay. So-- and did you print zero tapes 5 know, with-- with information about "and here is the 6 directly after opening the polls for early voting? 6 rest of the information for the night," so... 7 MS. THOMAS: Objection; fonn. 7 Q. Okay. So that's what you did on-- 8 Q. (BY MR. COI-IEN) Well, let me ask-- what I'm 8 A. Yes. 9 really after is -- I know you did some zero tapes 9 Q. -- at the end of the voting, in each precinct? 10 sometime before the polls opened-- 10 A. Yes. Access code. 11 A. Right. 11 (Sotto voce discussion between 12 Q. --but did you do them again when the polls 12 Ms. Pressley and Mr. Cohen.) 13 opened? 13 Q. (BY MR. COHEN) How many workers that worked on 14 A. Okay. 14 tallying the votes, or workers in your office, actually 15 MS. THOMAS: Objection; form. 15 have access codes to access the hard system? 16 A. Do you mean election day or early voting? 16 A. A handful. I don't know the exact numbet·. Not 17 Q. (BY MR. COHEN) Both. First, early voting. 17 many. 18 A. Okay. The answer is yes, standard procedure 18 Q. Okay. Just give me one more minute. I don't 19 for early voting: tapes before, tapes after. 19 understand what she wants to know. 20 For election day, we have a separate 20 (Sotto voce discussion between 21 procedure that's been prescribed to all of the counties 21 Ms. Pressley and Mr. Cohen.) 22 who use vote centers. And we have a specific pt·ocedure 22 Q. (BY MR. COHEN) So-- okay. So did-- let me 23 that talks about how you run the zero tapes so that you 23 go back over the result tapes again. Did you print the 24 know you have zero, and that's a full accounting. And 24 result tapes after the election? 25 then there is a specific procedure fot· doing the 25 A. Access codes.

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I opening. That's prior to election day. Q. Access codes. 2 Then you have a procedut·e for printing the 2 A. And they did --as far as I know, we put them 3 tape for election day and then printing the tape fot· 3 on the door. 4 after election day, that are abbreviated prints, that 4 Q. What is the difference between a tally tape and 5 don't-- that don't t·equire you to print the whole 5 an access code? 6 accounting. 6 A. It comes from a different database, and it's a 7 Q. Okay. So my question was: Did you do zero 7 shorter version than what you would get-- it's like an 8 tapes at each polling place, on the day of the election? 8 abbreviated version. An access code is going to give 9 A. Yes. 9 you an abbreviated version of who all voted for what. 10 MS. THOMAS: Objection; fonn. 10 Q. Okay. 11 Q. (BY MR. COHEN) Okay. Thank you. II A. It might be easier to see the difference than 12 A. Yes. Sony. 12 for me to explain it. 13 Q. That's all right. I liked -- it was 13 Q. So that's why you told the poll people not to 14 interesting. 14 print the tally tapes? 15 Were tally tapes, result tapes, printed 15 A. Correct. 16 directly after the closing of the polls? 16 MR. COHEN: All right. We-- I'll pass 17 A. Yes. Howevet·, on election day, it's called an 17 the witness. 18 "access code," not a "tally tape." 18 MS. THOMAS: Do you have anything else? 19 Q. So explain to me how that works, please. 19 He just passed the witness. 20 A. Yeah. On election night, longstanding law that 20 MR. HERRING: Okay. Yeah. 21 says whatever method of voting you're using, as you 21 FURTHEREXAMINATION 22 close up the polls and leave that night, you leave a 22 BY MR. HERRING: 23 note on the door of the polling place that says how many 23 Q. What I'm going to do is just show you the 24 people voted and what wet·e the results of that election 24 notices that were posted on the polling places for 25 night, the races. It's a-- it's an old, old law that 25 Precinct 133 and some others. "Your polling place is

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1 now such-and-such." I Brethren was the old location and that Lanier High 2 A. Got it. 2 School is the new location for the runoff election. 3 Q. Prove it up. That's all. 3 Q. And all of those were posted to assist voters? 4 A. Okay. 4 A. Posted, correct. 5 Q. So let me show you what has been marked as 5 Q. Were the new voting locations also available in 6 Exhibit 6. 6 multiple other fom1s, such as websites? 7 THE REPORTER: Uh-oh. We already have a 7 A. Conect. They't·e on our websites, they're in 8 6. 8 papet· forms, they're on the County Clerk's website, the 9 THE WITNESS: We have a 6. 9 County website, the City website. 10 THE REPORTER: Can we do 16? Can we throw 10 Q. Thank you. 11 a "1" on it? 11 MR. HERRING: Pass the witness. 12 MR. HERRING: Let's do 16. Yeah, put a 12 MR. COHEN: No further questions at this 13 "1" on it. 13 time. 14 THE REPORTER: Okay. So no 14 or 15. 14 (Deposition concluded at 12:24 p.m.) 15 MR. HERRING: So that will be 16. 15 16 MS. THOMAS: We don't have a 9, if you're 16 17 wondering about a 9. 17 18 MR. HERRING: No. I don't like 9. I 18 19 don'tlike9. 19 20 (DeBeauvoir Exhibit No. 16 marked) 20 21 Q. (BY MR. HERRING) Is that the notice that was 21 22 posted at the polling -- the voting location for 22 23 Precinct 133, to indicate that the new polling place was 23 24 Memorial United Methodist church? 24 25 A. Correct. It is. 25

Page 130 Page 132

I MR. HERRING: That's 16. I CAUSE NO. D-1-GN-15-000374 2 LAURA PRESSLEY ) IN THE DISTRICT COURT 2 MR. COHEN: Oh, that's 16? Contestant ) 3 MR. HERRING: Yeah. 3 ) ) 4 Do the same with that one. 4 ) 5 (DeBeauvoir Exhibit Nos. 17 marked) VS. ) TRAVIS COUNTY, TEXAS ) 6 Q. (BY MR. HERRING) And I'll show you 17 and ask ) 7 you to identiJY what's the notice to and what's the new 6 ) GREGORIO "GREG" CASAR ) 8 location? 7 Contestee ) 20JST JUDICIAL DISTRICT 9 A. It says Highland Mall is the previous location 8 ************** ****** ***** *** ** ****** *** ** 9 REPORTER'S CERTIFICATION 10 and that the Travis County main location is the new one. 10 ORAL DEPOSITION OF DANA DEBEAUVOIR II MAYII,2015 II Q. Okay. 12 *** *********** *** *** ** *** ***** *** ****** ** 12 (DeBeauvoir Exhibit Nos. 18 and 19 marked) 13 13 Q. (BY MR. HERRING) And all of these that I'm 14 I, KATHERINE A. BUCHHORN, Ce1iified Shorthand Repm1er in and for the State of Texas, hereby certifY 14 showing you, were they all posted at the old voting I 5 to the following: 15 location? 16 TI1at the witness, DANA DEBEAUVOIR, was duly swom by the officer and that the transcript of the oral 16 A. At the old location, con·ect. I 7 deposition is a true record of the testimony given by the witness; 17 18. 18 18 Q. And what is 19? That the deposition transcript was submitted on 19 May 15,2015, to the witness, DANA DEBEAUVOIR, I9 A. 19 is the location posted at McBee Elementary c/o SHERINE E. THOMAS, for examination, signature, and 20 School, indicating that it was the old location; and the 20 retum to SYMPSON REPORTING by June 4, 2015. 2I That the amount of time used by each pm1y at the 21 new location is Walnut Creek Elementary. deposition is as follows: 22 (DeBeauvoir Exhibit No. 20 marked) 22 MR. CHARLES HERRING, JR.- 0 Hours, 57 Minutes MS. SHERINE E. THOMAS - 0 Hours, 0 Minutes 23 Q. (BY MR. HERRING) And let me show you what's 23 MR. MARK COHEN - I Hour, 33 Minutes 24 been marked 20. 24 That pursuant to infonnation given to the deposition officer at the time said testimony was taken, the 25 A. A notice posted, indicating that Austin 25 following includes counsel for all pm1ies of record:

Sympson Reporting·- 512:374.0596·'

4575 Page 34 (Pages 133-136) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 133 Page 135 I FOR THE CONTESTANT, LAURA PRESSLEY: I CHANGES AND CORRECTIONS MARK COHEN 2 THE LAW OFFICES OF MARK COHEN & ROSE COHEN 2 WITNESS NAME: DANA DEBEAUVOIR 805 W. I Oth Street, Suite I00 3 AlJStin, Texas 78701 3 DATE: MAY II, 2015 512.474.4424/512.472.5444 (fax) 4 Reason Codes: (1) to clarify the record; (2) to conform 4 mark@cohenlegalservices.com 5 FOR THE CONTESTEE, GREGORIO "GREG" CASAR· to the facts; (3) to correct a transcription error; (4) MR. CHARLES HERRING, JR. 6 HERRING & IRWIN, L.L.P. 5 other (please explain). 1411 West Avenue 7 Austin, Texas 78701 6 PAGE/LINE CHANGE REASON CODE 512.320.0665/512.519.7580 (fax) 7 8 cherring@herring-irwin.com 9 FOR THE DEPONENT, DANA DEBEAUVOIR: 8 SHERINE E. THOMAS 10 TRAVIS COUNTY 9 314 W. lith Street 10 II Austin, Texas 78701 512.854.9513/512.854.4808 (fax) II 12 sherine.thomas@traviscountytx.gov 13 12 I further certify that I am neither counsel for, 13 14 related to, nor employed by any of the parties or attorneys in the action in which this proceeding was 14 15 taken, and further that I am not financially or otherwise interested in the outcome of the action. 15 16 16 Further certification requirements pursuant to 17 Rule 203 of TRCP will be certified to after they have 17 occurred. 18 18 Certified to by me this 14th day of May, 2015. 19 19 20 20 21 Is/ Katherine A. Buchhorn KATHERINE A. BUCHHORN, Texas CSR 2788 21 22 CSR Expiration: 12/31115 SYMPSON REPORTING 22 23 Firm Registration No. 696 23 7800 N. MoPac Expressway, Suite 120 24 Austin, Texas 78759 24 512-374-0596/512-697-8313 (fax) 25 office@sympsonreporting.com 25

Page 134 Page 136 I FURTHER CERTIFICATION UNDER RULE 203 TRCP I SIGNATURE 2 3 The original deposition of DANA DEBEAUVOIR was/was 2 not retumed to the deposition officer on or before 3 I, DANA DEBEAUVOIR, have read the foregoing 4 , 2015. Ifretumed after the stipulated date, the original deposition was retumed on 4 deposition and hereby affix my signature that the same 5 6 Ifretumed, the attached "Changes and Correctionsn 5 is true and correct, except as noted on the previous page contains any changes and the reasons therefor; 6 page. 7 If retumed, the original deposition was delivered 7 8 to SHERIN£ E. THOMAS, 314 W. llth Street, Granger 8 Building, Suite 420, Austin, Texas 78701, Custodial 9 Attomey; 9 DANA DEBEAUVOIR 10 That$ is the deposition officer's charges to CHARLES HERRING, JR., HERRING & IRWIN, L.L.P., 10 THE STATE OF ) II 1411 West Avenue, Suite 100, Austin, Texas 78701, II COUNTY OF ) attomey for GREGORIO "GREG" CASAR, for preparing the 12 original deposition transcript and any copies of 12 Before me, , on this day personally exhibits; 13 13 appeared DANA DEBEAUVOIR, known to me (or proved to me That the deposition was delivered in accordance with 14 under oath or through ) (description of 14 Rule 203.3, and that a copy of this cettificate was served on all patties shown herein and filed with the 15 identity card or other document) to be the person whose 15 Clerk. 16 name is subscribed to the foregoing instrument and 16 Ce1tified to by me this _ _ day of 20- - 17 acknowledged to me that she executed the same for the 17 18 purposes and consideration therein expressed. 18 19 --------· 19 Given under my hand and seal of office this _ _ KA THERlNE A. BUCHHORN, Texas CSR 2788 20 CSR Expiration: 12/31/15 20 day of '20 . SYMPSON REPORTING 21 21 Finn Regish·ation No. 696 7800 N. MoPac Expressway, Suite 120 22 22 Austin, Texas 78759 23 NOTARY PUBLIC IN AND FOR 512-374-0596/512-697-8313 (fax) 23 office@sympsonreporting.com 24 THE STATE OF 24 25 25 COMMISSION EXPIRES:

Sympson Reporting'-

457 03-15-00368 1 -CV 1 REPORTER'S RECORD VOLUME 3 OF 4 VOLUMES 2 TRIAL COURT CAUSE NO. D-1-GN-15-000374 COURT OF APPEALS NO. 03-15-00368-CV 3 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4 LAURA PRESSLEY ) IN THE DISTRICT 7/8/2015 COURT 12:49:51 PM Contestant ) JEFFREY D. KYLE 5 ) Clerk v. ) 201ST JUDICIAL DISTRICT 6 ) GREGORIO "GREG" CASAR ) 7 Contestee ) TRAVIS COUNTY, TEXAS

10 * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

11 HEARING ON A MOTION FOR SUMMARY JUDGMENT, MOTION FOR SANCTIONS, MOTION TO STRIKE PLEADINGS, MOTION TO ENFORCE 12 RULE 11 AGREEMENT, AND MOTION TO COMPEL DISCOVERY

13 * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

17 BE IT REMEMBERED, on the 26th day of

18 May, 2015, the following proceedings came on to be heard

19 in the above-entitled and numbered cause before The

20 Honorable Dan Mills, Judge presiding, held in Austin,

21 Travis County, Texas:

22 Proceedings reported by machine

23 shorthand.

25 LAURA H. TAYLOR, CSR (512) 854-9054 2 1 APPEARANCES

3 FOR THE CONTESTANT, LAURA PRESSLEY:

4 MR. MARK COHEN SBOT NO. 04508395 5 805 West 10th Street, Suite 100 Austin, Texas 78701 6 512-474-4424 Mark@cohenlegalservices.com 7

8 MR. DAVID ROGERS SBOT NO. 24014089 9 LAW OFFICE OF DAVID ROGERS 1201 Spyglass Drive 10 Suite 100 Austin, Texas 78746 11 512-923-1836/512-201-4082 (fax) darogers@aol.com 12

13 FOR THE CONTESTEE, GREGORIO "GREG" CASAR:

14 MR. CHARLES HERRING, JR. SBOT NO. 095334100 15 HERRING & IRWIN, L.L.P. 1411 West Avenue 16 Suite 100 Austin, Texas 78701 17 512-320-0665/512-519-7580 (fax) cherring@herring-irwin.com 18

19 FOR TRAVIS COUNTY CLERK, MS. DANA DEBEAVOIR, AND TRAVIS 20 COUNTY VOTER REGISTRAR, MR. BRUCE ELFANT:

21 MS. SHERINE E. THOMAS SBOT NO. 0074734 22 ASSISTANT COUNTY ATTORNEY 314 West 11th Street 23 Granger Building, Suite 500 Austin, Texas 78701 24 512-854-9513/512-854-4808 (fax)

25 LAURA H. TAYLOR, CSR (512) 854-9054 3 1 I N D E X

2 Page Vol.

3 MOTION FOR ATTORNEYS FEES 4 3

4 MOTION FOR SUMMARY JUDGMENT 12 3

5 REPORTER'S CERTIFICATE 57 3

25 LAURA H. TAYLOR, CSR (512) 854-9054 4 1 MAY 26, 2015

2 THE COURT: Cause Number D-1-GN-15-000374,

3 Laura Pressley, Contestant, versus Gregorio Casar, Con

4 testee. We are here with various motions. We have

5 summary judgment motions. We have motions for sanctions.

6 We have motions to strike pleadings. We have motions to,

7 basically, enforce a Rule 11 agreement regrading

8 discovery costs unless that was resolved by Travis County

9 and Ms. Pressley's side of the lawsuit.

10 Anything that I missed? Mr. Herring is

11 here on behalf of Mr. Casar and Mr. Cohen is here on

12 behalf Dr. Pressley.

13 MR. HERRING: Thank you. You have

14 everything we have.

15 MR. COHEN: There's a Motion to Compel

16 Discovery.

17 THE COURT: Right. I have -- I have --

18 MR. COHEN: Okay. You didn't mention it.

19 So I just want to make sure. They have a protective

20 order with respect to their motion, the County does. So

21 that's all joined on what you're going to do. Both

22 parties have briefed it pretty well. You're just going

23 to have to make a decision.

24 THE COURT: Are you ready to proceed on the

25 County's motion? LAURA H. TAYLOR, CSR (512) 854-9054 5 1 MR. COHEN: Summary judgment?

2 THE COURT: For the payment of the money.

3 MS. THOMAS: Judge, counsel did forward a

4 check on Friday. We just need them to make sure it's

5 written to the right person. Also, we would like the

6 Court to entertain the attorneys fees, because it did

7 require filing of a motion before they were willing to

8 pay.

9 THE COURT: You asked for, like, $250

10 attorneys fees, something like that?

11 MS. THOMAS: I believe that is correct,

12 Your Honor.

13 MR. COHEN: Your Honor, we have a dispute

14 about whether they were charging too much. Rather than

15 bring that to you, we eventually decided, well, it's a

16 $500 difference, but it was a legitimate dispute. They

17 didn't give us any backup to the invoice. They just sent

18 an invoice. The people that were there -- I can't speak

19 to that. I wasn't at the actual production session, but

20 I'm told they were making copies with their own people

21 and their own copies and charging us; just rinky dink

22 stuff as far as I'm concerned.

23 THE COURT: When I read the motion,

24 counsel, as you -- you've probably practiced a long time,

25 as I have and Mr. Herring has. You well know -- all of LAURA H. TAYLOR, CSR (512) 854-9054 6 1 you well know, judges don't like to get involved in those

2 kind of things, especially when you start reading, Did

3 they take a lunch break? And, you know, the Court tried

4 to accommodate your client's side by reducing the costs,

5 and the County did, too. And then to see a discovery

6 dispute come up about payment of fees and copiers and,

7 you know, pointing fingers --

8 MR. COHEN: It was a legitimate dispute.

9 We decided -- I decided, frankly, that it was not worth

10 -- we shouldn't waste the Court's time on that today; and

11 that if there's a dispute, it's over $500. There's a lot

12 more money being spent in this case than $500.

13 THE COURT: So you want $250 in attorneys

14 fees?

15 MS. THOMAS: Yes, Your Honor.

16 MR. COHEN: I just don't think there's any

17 reason to warrant attorneys fees. There's no attorneys

18 fees -- there's no provision in the law for you to award

19 attorneys fees and there's no -- you know, as you well

20 know, in order to award attorneys fees, there has to be

21 some sanctionable conduct, and disputing and debating the

22 amount of the bill is not something that you would

23 normally award attorneys fees for.

24 MS. THOMAS: Your Honor, there was a series

25 of exchanges with counsel on whether or not it was LAURA H. TAYLOR, CSR (512) 854-9054 7 1 appropriate to pay that amount. As you know, we went

2 above and beyond by not only even accommodating their

3 request to bring in their own printer. So the fight --

4 it required us to file a motion. That's all that we're

5 asking for is the time spent to require them to pay,

6 which didn't have to happen. And it's the same type of

7 discovery issues we're seeing over and over with

8 Ms. Pressley. So we ask that to deter the behavior in

9 the future.

10 THE COURT: Sherine Thomas. I'm sorry. I

11 didn't call your name since you were a party. Ms. Thomas

12 with the County Attorney representing the County Clerk.

13 My inclination is to award the attorneys

14 fees because the motion got filed and it wasn't resolved.

15 So I don't think $250 is an extremely large amount of

16 money for the filing of that pleading, and I had to spend

17 the time reading it, too.

18 MR. COHEN: I understand, Your Honor, and

19 there was a dispute. There was a legitimate dispute. It

20 wasn't some frivolous thing. There was a legitimate

21 dispute about what we were paying for. They did not give

22 us a detailed accounting for where they got to that

23 number. And so we had a little discussion internally and

24 decided that it wasn't worth fighting about, and so we

25 paid it. LAURA H. TAYLOR, CSR (512) 854-9054 8 1 So what I'm saying is, there was -- they

2 didn't provide us with a backup to show that their bill

3 was legitimate and for us to say, Well, now, we saw it

4 this way. How did you see it? And the response was to

5 file a motion. So they elected to file a motion that

6 they really didn't have to file until we worked it out,

7 and I shouldn't -- my client shouldn't have to pay their

8 attorneys fees for doing that.

9 THE COURT: What do you say?

10 MS. THOMAS: Your Honor, we did lay it out

11 for them; and, in fact, they were present. The question

12 of lunch hours and things -- they were present during,

13 and they know that our clients were working throughout

14 the day. So that doesn't seem like a fair thing.

15 THE COURT: You say they were present?

16 You're talking about Ms. Pressley?

17 MS. THOMAS: And her counsel.

18 THE COURT: And the lawyer, Mr. Rogers, was

19 there?

20 MS. THOMAS: Mr. Rogers was there. In

21 addition, Your Honor, when the check was delivered, it

22 had a cover letter saying that they're giving us the

23 check in the amount under protest. And so that means

24 that this is still live in their minds, because that's

25 what they asserted to us. And we ask the Court to LAURA H. TAYLOR, CSR (512) 854-9054 9 1 resolve the issue today so we don't have to be back here.

2 THE COURT: Mr. Rogers just appeared.

3 Mr. Rogers, you heard Ms. Thomas say you

4 were present during the discovery when this issue of who

5 was out for lunch and who was eating sandwiches and who

6 had slow copiers and all the other things that were an

7 allegation. Do you read those pleadings to be accurate?

8 MR. ROGERS: No, Your Honor, I don't. And

9 while I was there for the whole time, one of the things

10 that I can tell the Court was that, for a great deal of

11 the time, the employees of the County Clerk's office left

12 the area where we had our copier set up and went and made

13 copies for the County Clerk's records on their own time

14 and left the copiers alone. We did get somebody in there

15 when somebody was leaving for a whole hour for lunch.

16 The clerk's office was kind enough to bring

17 a substitute in there, but I would say somewhere between

18 a third and a half of the time that we were there, the

19 County Clerk's employees were making copies for the

20 County Clerk's records. Their copies -- they gave us

21 originals. We made copies and then they made copies of

22 our copies for their records. I don't think my client

23 should be charged for their making copies for their

24 records, and that was a considerable amount of the time

25 that was involved, Your Honor. LAURA H. TAYLOR, CSR (512) 854-9054 10 1 THE COURT: Well, it doesn't sound -- a

2 check has been tendered, Mr. Cohen said. Sounds like

3 maybe we ought to have a hearing and decide what really

4 went on if there's a really legitimate contest. And then

5 if I find bad behavior, then I'll sanction somebody for

6 it. So you-all can decide what we're going to do. I

7 think the attorney's fees should be paid or else we're

8 going to have a hearing to determine whether sanctions

9 should be imposed, and I'll hold that in abeyance and

10 you-all can talk about it.

11 MR. COHEN: Your Honor, we don't want to

12 have a hearing. We don't want to fight about the

13 minutia. The only reason this is relevant is to the

14 issue of attorney's fees and whether our dispute was

15 reasonable and legitimate so that we didn't do anything

16 sanctionable by it with them before they filed a motion.

17 They elected to file a motion while we were discussing

18 these matters.

19 THE COURT: It doesn't look like -- they

20 thought or felt compelled to file a motion because

21 apparently they couldn't -- they didn't have any sense

22 that they were going to be resolved. If what Mr. Rogers

23 is telling the Court, he still has some argument about

24 what actually occurred. So I'm willing to give you a

25 hearing, and you can bring witnesses and we can spend two LAURA H. TAYLOR, CSR (512) 854-9054 11 1 or three hours of attorneys' times. And if I find bad

2 behavior, somebody's going to get sanctioned.

3 MR. COHEN: The reason I got paid --

4 THE COURT: You want to pay the attorney's

5 fees?

6 MR. COHEN: -- was so we didn't have to

7 have a hearing. If you order it, I've got to comply with

8 your order, Your Honor. I'm just objecting to it.

9 THE COURT: I'm affording you the

10 opportunity to have the hearing. That's what I'm

11 affording you to do. Do you want to have the hearing or

12 pay the attorney's fees?

13 MR. COHEN: We're going to just pay the

14 attorneys fees.

15 THE COURT: So the attorneys fees will get

16 paid. It's resolved. That's what we'll do with that.

17 MS. THOMAS: Your Honor, I have a draft

18 order.

19 THE COURT: Have you seen a copy? Show him

20 a copy of it.

21 MS. THOMAS: It says that the payment has

22 already been received for the $836; that it was

23 appropriate and that there's $250 in attorney's fees.

24 THE COURT: This order acceptable to you,

25 Mr. Cohen? LAURA H. TAYLOR, CSR (512) 854-9054 12 1 MR. COHEN: It's not acceptable to me as

2 far as the substance, but the form seems to be okay.

3 THE COURT: All right. Based upon your

4 agreement, then I'll enter that. I'll enter that order

5 is what we'll do.

6 All right. Now, the -- we have -- we have

7 a Motion to Strike Pleadings which relates -- that's the

8 -- that's the motion to strike the sixth amended

9 petition, Mr. --

10 MR. HERRING: Judge, the motion was

11 actually filed when they had filed either the fourth or

12 fifth --

13 THE COURT: The fifth maybe.

14 MR. HERRING: And we have filed, now, the

15 amended motion, and we're not seeking to strike those

16 pleadings. So that's off the table. Our amended motion

17 takes that request off.

18 THE COURT: We don't have that motion?

19 MR. HERRING: No.

20 THE COURT: So then probably the next

21 easiest thing to do is deal with the summary judgment

22 motion. Would counsel agree?

23 MR. HERRING: I think --

24 MR. COHEN: That's fine, Your Honor.

25 THE COURT: Since it's your summary LAURA H. TAYLOR, CSR (512) 854-9054 13 1 judgment motion, did you -- did you read all the

2 pleadings that were filed this morning, Mr. Herring?

3 There were pleadings sent. When I turned my phone on

4 this morning, I had two more things that popped up on my

5 phone.

6 MR. HERRING: Right.

7 THE COURT: When I got here to the

8 courthouse this morning, one of the clerks was kind

9 enough to have printed them. And I read them. I don't

10 know whether you've read them.

11 MR. HERRING: I have glanced at them, and

12 someone here at the table with me has read them. So I

13 think we're ready to go.

14 THE COURT: So you're ready to speak to

15 that?

16 MR. HERRING: At least one of those didn't

17 relate to us. It goes back to the County.

18 THE COURT: Right. It deals with

19 compelling some production, basically.

20 MR. HERRING: One of them addressed our

21 Motion to Strike, which we're not seeking to strike. All

22 we have pending on that front is the request for

23 attorney's fees which would come after the summary

24 judgment motion depending on the Court's ruling.

25 THE COURT: I have read all of your LAURA H. TAYLOR, CSR (512) 854-9054 14 1 motions. And I'll show you I've tagged them, as you can

2 see, with little points. I read, you know -- I read all

3 the stuff again this morning. So let me just say this.

4 This is my observation. I'm not as smart as you are

5 about all these DREs and CVRs and mobile ballot boxes and

6 all that type of thing. But it seems to the Court that

7 Dr. Pressley's lawsuit rises and falls or falls on the

8 issue of whether CVRs are ballot images; whether that

9 term CVR can be equated to a ballot image.

10 I read your expert's report that CVRs are,

11 you know, some kind of data; that the other things are

12 bits. I've read all your little -- I'm not saying yours,

13 but what you proposed to the Court about all these legal

14 distinctions, computer terminology. But what I want to

15 ask Mr. Cohen that I don't know -- Mr. Rogers is here. I

16 don't know who is going to speak for Dr. Pressley.

17 MR. COHEN: I will.

18 THE COURT: Before we start, do you agree

19 that that seems to be the crux of whether you win or lose

20 this lawsuit, that particular issue?

21 MR. COHEN: No, Your Honor. That is one of

22 the issues. There's a statute that says that -- there's

23 two statutes involved. They have to be read to be

24 consistent with each other. 221.012 says that if the

25 tribunal cannot ascertain the outcome of the election, LAURA H. TAYLOR, CSR (512) 854-9054 15 1 it's supposed to void the election. And that two point

2 -- the other one is two point -- 221.003(a), which says

3 that a Court can void the election based on its findings

4 of certain things. And one of them is mistakes.

5 So we are contending that there are a lot

6 of mistakes, and we have fact allegations and fact

7 evidence, summary-judgment evidence that these mistakes

8 occurred and that those mistakes are sufficient to

9 prevent the Court from being able to ascertain the true

10 outcome of the election. One of those mistakes is the

11 counting CVRs without maintaining images of ballots.

12 THE COURT: But that's the bigger issue in

13 terms of, if the Court determines that a CVR is the

14 equivalent of a ballot image, you -- your client has had

15 access to those, counted those, and those documents show

16 what the tally came out where your client was, like, 1291

17 votes behind. I think it's 1291.

18 MR. COHEN: That's correct. If you

19 determine that a CVR is equal -- is a ballot image, then

20 that takes that off the plate. If you determine that it

21 isn't, then there's -- there's no way to count votes at

22 all, okay, and you have to redo the election. That's

23 clear. But assuming for a minute that you can look at

24 this CVR --

25 THE COURT: And I've looked -- LAURA H. TAYLOR, CSR (512) 854-9054 16 1 MR. COHEN: That's a ballot. Assuming you

2 can do that. I can't do that, but assuming you can for a

3 minute --

4 THE COURT: It's more assuming that I think

5 the law allows that to be viewed that way not what I

6 particularly believe. Does the law allow, based upon

7 what I've read and seen, looked at all your argument --

8 MR. COHEN: We'll talk about that as we go

9 through the hearing. To answer your question, if you

10 assume that the -- if you conclude that a CVR is the same

11 as a ballot, either as a matter of law or as a matter of

12 fact, then all that's left in our case is to point out

13 all the mistakes that were made that bring into question

14 whether the outcome is a true outcome or not.

15 THE COURT: And those would be the nine

16 errors with the mobile ballot boxes and the periods of

17 time with the closing and opening of these so-called

18 tally sheets.

19 MR. COHEN: Yes.

20 THE COURT: Is that a fair summation?

21 MR. COHEN: There's a few others that I

22 just can't remember off the top of my head.

23 THE COURT: You didn't like the closing of

24 certain polling places.

25 MR. COHEN: Yeah, that -- I've kind of LAURA H. TAYLOR, CSR (512) 854-9054 17 1 given up on that one.

2 THE COURT: I was going to ask you some

3 more about that, too, in terms of the fact that your

4 client had notice and didn't protest. It seems -- you

5 pointed out there's nothing that says it's a waiver, but

6 when everybody gets notice that we're going to decide

7 where to go hold this runoff election -- and you and I

8 both know the runoffs all produce generally lower votes.

9 So there's reasons to reduce the number of polling

10 places. I'm not the one writing this, because somebody

11 else can grade my paper, too, that goes up the road.

12 MR. COHEN: I am assuming that we cannot

13 establish that votes were lost because of that. Okay.

14 So the question -- what I'm getting at is, there's -- I

15 have a list here right now, but not right in front of me.

16 THE COURT: But it seems like there's

17 three: ballot images, CVR, mobile ballot boxes, and

18 whatever errors that produced or didn't produce and those

19 tally sheets being remaining open for periods of time --

20 you know, for a couple of hours without activity, several

21 days without activity. Those seem to be the more

22 problematic things with -- that's my reading of what you

23 offered.

24 MR. COHEN: Those are the most ones.

25 You're right. You pinpointed the ones that, in my view, LAURA H. TAYLOR, CSR (512) 854-9054 18 1 show that the computer was subject to manipulation for

2 days at a time; that the clerk doesn't even -- has never

3 seen that many invalid MMBs (sic) and doesn't think that

4 the reader was working properly. And so there are some

5 serious mistakes that were made during the course of

6 tallying the votes that bring into question whether or

7 not the computer actually properly tallied the voter's

8 selection on these ballots.

9 THE COURT: No. I understand. That calls

10 into question the legitimacy of the outcome.

11 MR. COHEN: Yes.

12 THE COURT: The tallies and mobile ballot

13 box errors -- I'm not saying the other does. We got --

14 we have a CVR that no one -- I mean, all I read from your

15 expert -- he doesn't say that ballot image that -- where

16 they finally go vote is not accurately transcribed into a

17 different electronic format when it goes to a Cast Vote

18 Record. He just doesn't like the format. He wants the

19 format to be more expansive, have more bits of

20 information. And I understand the legal distinction that

21 you're making.

22 MR. COHEN: Yes. There's other policy

23 discussions. We're getting out of step here. Yeah.

24 THE COURT: And I just wanted Mr. Herring

25 to know that before he started with his -- since he's LAURA H. TAYLOR, CSR (512) 854-9054 19 1 going to go forward, and you get to respond.

2 MR. COHEN: He's jumping up because he

3 wants to do his motion for summary judgment.

4 MR. HERRING: I'm actually enjoying it.

5 MR. COHEN: So I will have a more detailed

6 response.

7 THE COURT: No. That's fine. We're close.

8 MR. COHEN: Two things: One is, there's no

9 ballots without an image of the ballot. That's the law.

10 Now, the question is whether a CVR satisfies that or not

11 is a different issue. But without a ballot -- image of a

12 ballot, there's no votes to count.

13 THE COURT: Correct. Only the absentee --

14 MR. COHEN: Yes.

15 THE COURT: There was a tie in the absentee

16 ballots.

17 MR. COHEN: Or the mail-in.

18 THE COURT: Whatever it was.

19 MR. COHEN: And the other issue is, there

20 was enough mistakes to bring into question the validity

21 of the tallied counts. That's it.

22 THE COURT: Mr. Cohen, thank you.

23 Go ahead, Mr. Herring.

24 MR. HERRING: May it please the Court.

25 Judge, I think you did a good job in helping save me time LAURA H. TAYLOR, CSR (512) 854-9054 20 1 in terms of what I need to present by honing in on the

2 issues. You've heard most of this before. Let me

3 mention -- with the Court's indulgence, I'll have

4 Ms. Palvino speak after I do on the objection that we

5 filed to the summary-judgment evidence that they

6 presented. Essentially, it focuses on the purported

7 expert who has zero expertise in election law, but I'll

8 save that. She, also, is going to talk about these

9 supposed errors in the other system. But I want to focus

10 on the big issues.

11 Certainly, I want to start with the issue

12 of CVR ballot image, because I think, as Mr. Rogers said

13 during our first hearing -- he said, quote, the big

14 central issue in this lawsuit is whether a CVR is a

15 ballot image. And he said in that first hearing, quote,

16 if you rule that way, that would obviously put a big hole

17 in our case.

18 And we think they have a massive hole in

19 their case, Judge, as a result of that. And let me -- I

20 have a brief packet here from the summary-judgment

21 evidence, if I may approach?

22 THE COURT: Yes, sir. I didn't -- I didn't

23 print all your summary-judgment evidence. It was just --

24 there were too many pages. I figured you would -- I'd

25 read your footnotes and see whether it referenced a LAURA H. TAYLOR, CSR (512) 854-9054 21 1 deposition or a document, but I did not go read all those

2 pieces of paper.

3 MR. HERRING: You need to, Judge.

4 MR. COHEN: It's my policy, Your Honor --

5 MR. HERRING: It's right here.

6 MR. COHEN: It's my policy that I just

7 don't go through all those things with the hearing on the

8 Motion for Summary Judgment. I'm assuming that the Court

9 is very smart enough to read it all and understand it

10 without me regurgitating it. So it's going to be a short

11 overview of what it says.

12 THE COURT: What I was looking for was a

13 basis of the allegation or representations that were

14 made. In other words, if you say there's some material

15 fact that you want me to consider, then you reference

16 that it's in a deposition or an exhibit list. And if one

17 side represents it wrong, I assume the other side is

18 going to tell me, Well, Judge, they're not telling you

19 the truth. So I'm relying on the lawyers to do that

20 rather than me reading it. Like Mr. Herring has a stack

21 of pages here about three feet high.

22 MR. COHEN: We've got several boxes, also,

23 Your Honor.

24 MR. HERRING: Three and a half feet, but I

25 left -- I left the Motion for Summary Judgment response LAURA H. TAYLOR, CSR (512) 854-9054 22 1 in the boxes because, otherwise, it would fall over. I

2 think what their defense is, is obfuscation through

3 deforestation.

4 I think if you look at the real issues, the

5 overwhelming majority of those documents are completely

6 irrelevant and immaterial. So let me get back to the

7 ballot image. The evidence in the record, Judge, is

8 absolutely clear that every level of government says

9 uniformly, ballot image equals CVR for electronic voting.

10 The first page in the packet I handed you

11 is from the United States Election Assistance Commission.

12 As you recall, Judge, we've talked about this before.

13 That commission is a bipartisan commission established

14 after the 2002 Help America Vote Act. It's bipartisan

15 appointed by both parties in Congress through the

16 president.

17 They have, then -- that commission has 37

18 advisors and it has 110 standards advisors, people

19 throughout the country. So you have 37 of the foremost

20 experts in election law and procedure and election

21 computerization. And then you've got 110, the very, very

22 best advisors, two from each state and then others.

23 For Texas, importantly, the two advisors

24 are Dana DeBeauvoir, the County Clerk who ran this

25 election, who they're attacking, and Keith Ingram, the LAURA H. TAYLOR, CSR (512) 854-9054 56 1 qualified in this field would not be making. That's

2 probably the best example is his reliance on Ballot Now.

3 There are some other examples that I'm happy to get into;

4 but I think, overall, he's just -- he's not qualified.

5 THE COURT: You're lodging a challenge to

6 his qualifications to render opinions, basically.

7 MS. PALVINO: Yes, Judge.

8 THE COURT: Okay. All right. I'll let

9 Mr. Cohen speak to that and then make some decision on it

10 after I hear him speak. Anything else --

11 MS. PALVINO: That's all I have.

12 THE COURT: -- Mr. Herring?

13 MR. HERRING: Pass for now, and we may have

14 a comment.

15 THE COURT: We'll take a break and we're

16 going to let the court reporter's change.

17 (Mary Lou Taylor, CSR, made a record of the remainder of the hearing). 18

25 LAURA H. TAYLOR, CSR (512) 854-9054 57 1 REPORTER'S CERTIFICATE

2 THE STATE OF TEXAS )

3 COUNTY OF TRAVIS )

4 I, Laura H. Taylor, Official Court Reporter for

5 the Family District Court of Travis County, Texas, do

6 hereby certify the foregoing contains a true and correct

7 transcription of all portions of evidence and other

8 proceedings requested by counsel for the parties to be

9 included in this volume of the Reporter's Record, in the

10 above-styled and numbered cause, all of which occurred in

11 open court or in chambers and were reported by me.

12 I further certify that the Reporter's Record

13 truly and correctly reflects the exhibits, if any,

14 admitted by the respective parties.

15 I further certify that the total cost for the

16 preparation of this Reporter's Record is $265.00 and was

17 paid/will be paid by Mark Cohen.

18 WITNESS MY OFFICIAL HAND this the 7th day of July,

19 2015.

20 /S/ Laura H. Taylor Laura H. Taylor, CSR 21 Official Court Reporter Family Court 22 P.O. Box 1748, Austin, Texas 78767 (512) 854-9054 23 Certification No. 1968 Date of Expiration of Current 24 Certification: 12/31/16

25 LAURA H. TAYLOR, CSR (512) 854-9054 6/12/20159:15:38 AM Velva L. Price District Clerk Travis County NO. D-1-GN-15-000374 D-1-GN-15-000374

LA URA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR § Contestee § 201 ST JUDICIAL DISTRICT

CONTESTEE'S THIRD AMENDED MOTION FOR SANCTIONS

1. Contestee Casar seeks recovery of reasonable attorney's fees and expenses, and

other remedies authorized by Chapter 10 of the Texas Civil Practice and Remedies Code

("CPRC"). On May 19, 2015, Contestant Laura Pressley filed her Sixth Amended Original

Contest ("Sixth Contest"). As with her previous Contest pleadings, the Sixth Contest contains

claims, allegations, and contentions that violate CPRC § 10.001(2)-(3). On May 26,2015, this

Court granted Casar's no-evidence summary judgment motion, which establishes that Pressley

failed to raise any genuine issue of material fact in response to Casar's motion. Additionally,

during the May 26 th hearings, counsel for Travis County and for County Clerk DeBeauvoir

informed the Court that this case has cost Travis County (and therefore the taxpayers of Travis

County) well in excess of $40,000. Accordingly, Casar requests that this Court award against

Pressley and her counsel who has signed the Contests the recovery of fees, expenses, and other

appropriate remedies provided by §§ 10.002 and 10.004.

Allegations Concerning Ballot Images and Cast Vote Records

2. As first asserted in her Original Contest pleading! and repeated through all six

amended Contests, 2 Pressley alleges that Cast Vote Records (CVRs) are not "images of ballot

1 See Original Contest of Election, U 32-38. 2 See Second Amended Contest, U 31-37; Third Amended Contest, U 43-53; Fourth Amended Contest, U 43-53; Fifth Amended Contest, U 49-59,65; and Amended Contest, U 3,13,82,84,97-138.

1934 cast" under the Texas Election Code. But Pressley has asserted no legal basis for those

allegations. Instead, she has testified that it "makes sense to [her] as a layperson, kind of

common knowledge, that an image is a picture of a ballot.,,3 Her contention that a Cast Vote

Record is not a Ballot Image is flatly inconsistent with the definition of that term as adopted and

applied by the U.S. Election Assistance Commission, the Texas Secretary of State, Travis

County, and the City of Austin. All of those governmental entities uniformly define a Cast Vote

Record as being synonymous with a Ballot Image. Pressley's factual allegations and legal

contentions to the contrary violate CPRC §§ 10.001(2) and (3).

Allegations Concerning Zero Tapes

3. In <]I 42 of her Sixth Contest, Pressley alleges that "[re ]view of Discovery

documents provided by Travis County [show that] no Zero Tapes (showing the number of votes

present on the Hart Voting equipment for each candidate when the polls open) were printed

during Early Voting and no Zero Tapes were printed on Election Day of the Runoff." Pressley

has similar allegations regarding the lack of Zero Tapes in <]I<]I 3, 8,43, and 64 of the Sixth

Contest and throughout her previous Contests. 4 At her deposition, however, Pressley testified

that she didn't know if Zero Tapes were printed, where they were printed, or when. 5 In fact, Zero

Tapes were printed.

4. Moreover, Pressley attached the Zero Tapes of one District 4 precinct to her Sixth

Contest. See Exhibit C to Pressley's Sixth Contest. Travis County also produced the remaining

Zero Tapes for all other District 4 precincts to Pressley and her counsel at the document

3 See Pressley Deposition, p. 58. 4 See Original Contest, !]I 14; Second Amended Contest, !]I!]I 11, 14; Third Amended Contest, !]I 35; Fourth Amended Contest, !]I 35; and Fifth Amended Contest, !]I 41. 5 See Pressley Deposition, p. 134.

1935 production. Pressley's statements to the contrary are without evidentiary support and therefore

violate CPRC §§ 10.001(3).

Allegations Concerning Changes in Voting Locations

5. In her first five versions of her Contest, Pressley alleged that Travis County

"illegally" disenfranchised several thousand District 4 voters simply because certain voting

6 locations were changed or consolidated for the December 16, 2014 runoff election. Pressley

claims these voters were "disenfranchised" because these voting location changes may have

"inconvenienced" some voters. Pressley testified that if a voter had to drive only 20 seconds to a

7 new voting location, that 20-second drive would constitute voter disenfranchisement. That

factual allegation is specious, and Pressley has no legal support for her extreme and frivolous

legal contention. Further, Pressley admitted in her deposition that she failed to attend the Austin

City Council meeting at which the Council approved the voting locations for the runoff, and

failed to have any of her ten campaign staffers attend, to object to the locations or request

alternative locations.

6. Apparently recognizing the baseless nature of these allegations, Pressley has

omitted those allegations from her Sixth Contest. Including those contentions in the previous five

Contest pleadings violated CPRC §§ 10.001(2) and (3).

Allegations Concerning Recount Irregularities

7. In versions one through five of her Contest, Pressley alleged that numerous

procedural irregularities and Election Code violations occurred during the January 6,2015

6 See Original Contest,!]I 13; Second Amended Contest,!]I 13; Third Amended Contest,!]I!]I 12-23; Fourth Amended Contest,!]I!]I 12-23; and Fifth Amended Contest,!]I!]I 12-29. 7 See Pressley Deposition, p. 100-101.

1936 8 recount. Specifically, Pressley claimed that Travis County improperly started the recount before

the scheduled start time, that the number of voters on voters lists were not publicly reconciled

with the recounted ballots, that CVRs were improperly used in the recount, and that the "sum

total of those voting irregularities exceeds the number of votes by which the election was

decided."

8. In her Sixth Contest, Pressley and her counsel chose again to include allegations

regarding alleged recount irregularities. 9 These allegations included, among others, that CVRs

were improperly used in the recount, and that Travis County Director of Elections Michael Winn

committed a criminal violation by not allowing Pressley and her poll watchers to view the

source, properties, and copying of the CVR files. 10

9. As this Court recognized, allegations relating to the recount are legally irrelevant

because this case is an election contest, not a recount contest. 11 Under § 221.003(a) of the

Election Code, Pressley was required to show that the runoff election was not the "true

outcome." Any claim or allegation that some alleged error during the recount could affect the

"true outcome" of the election is legally frivolous. By incorporating those claims and legal

contentions into her Contests, Pressley and her counsel violated CPRC § 10.001(2).

Argument and Authorities

10. Section 10.001 of the CPRC provides that the signer of a pleading is certifying

that each claim, each allegation, and each denial is based on the signatory's best knowledge,

information, and belief, formed after reasonable inquiry. Sections 10.002 and 10.004 authorize,

8 See Original Contest,!]I 26-44; Second Amended Contest,!]I 26-44; Third Amended Contest, U 41-66; Fourth Amended Contest,!]I!]I 41-66; and Fifth Amended Contest, U 47-74. 9 Sixth Amended Contest,!]I!]I 82-101. 10 Sixth Amended Contest,!]I!]I 93-95.

11 Order Sustaining Contestee's Special Exceptions to Contestant's Fourth Amended Contest, <]I 7, April

13,2015.

1937 among other remedies, an award of reasonable attorney's fees and expenses against the person

who signs the pleading or the represented party or both. Additionally, § 1O.004(c)(2) authorizes

the Court to order that those persons pay a penalty into court.

11. As described above, Pressley's numerous Contests include many frivolous legal

contentions and factual allegations that are wholly unsupported by evidence. Incredibly, Pressley

and her counsel have continued to make some of these unfounded allegations in no less than six

amendments to her Original Contest of Election. Those allegations have required Casar to incur

substantial attorney's fees and expenses, and have required Travis County and the taxpayers to

expend many of tens of thousands of dollars to address Pressley's unsupported allegations and

demands.

12. Casar requests that the Court award against Pressley and her counsel who signed

the pleadings (i) the reasonable attorney's fees and expenses Casar has incurred in presenting this

motion and in defending against the claims, allegations, and contentions identified above; (ii) a

penalty into court; and (iii) that the Court issue an Order granting such other relief as the Court

deems appropriate under Chapter 10 of the Texas Civil Practice and Remedies Code.

HERRING & IRWIN, L.L.P. 1411 West Avenue, Suite 100 Austin, Texas 78701 (512) 320-0665 (512) 519-7580 - Facsimile

By: lsi Charles Herring, Jr. Charles Herring, Jr. - 09534100 cherring@herring-irwin.com Lauren Ross - 24092001 laurenbross@gma}Lcom

1938 Kurt Kuhn - 24002433 Kurt @KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002 - Facsimile

Jessica Palvino - 24048780 jpalvino@mcginnislaw.com McGINNIS LOCHRIDGE & KILGORE 600 Congress Ave., Ste. 2100 Austin, Texas 78701 (512) 495-6079 (512) 505-6379 - Facsimile

ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR

I certify that a true and correct copy of the above and foregoing Contestee's Third Amended Motion for Sanctions has been delivered to counsel for Contestant by electronic service through the electronic filing manager, or if counsel is not registered with the electronic filing manager, by email, to Mr. Mark Cohen, 805 W. 10th , #100, Austin, Texas 78701 and Mr. David A. Rogers, Law Office of David Rogers, 1201 Spyglass Drive, Suite #100, Austin, Texas 78746, on this 12th day of June, 2015.

lsi Charles Herring, Jr. Charles Herring, Jr.

1939 DC BK15187 PG842 Filed in The District Court of Travis County, Texas

JUL : 2 2015 tA--- NO. D-·1-GN-15-000374 At q, 56 -& Velva L. Price, District CJOrk LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § TRAVIS COUNTY, TEXAS § GREGORIO"GREG'CASAR § Contestee § 201 sr JUDICIAL DISTRICT

Amended Summary Judgment Order

The Court has considered Contestee Casar's Amended Motion for Summary

Judgment, Contestee's Supplement to his Amended Motion for Summary Judgment,

Contestee's No-Evidence Motion for Summary Judgment, Contestanfs Response to

Contestee's Amended and Supplemental Motion for Summary Judgment, the exhibits

cited in those documents, and the parties' arguments, and the Court FINDS and ORDERS

as follows:

1. Casal's No-Evidence Motion for Summary Judgment is GRANTED.

2. Under Texas Election Code§ 221.012(a), the Court DECLARES that the true

outcome of the December 16, 2014 runoff election is that Contestee Gregorio ''Greg'

Casar was elected to the Austin City Council District.

3. Contestee Casar's motion for sanctions against Contestant Laura Pressley and her

Counsel remains pending before the Court and will be considered and decided by the

Court in a separate order.

4. This Order amends and replaces the Courfs prior May 26, 2015 Order.

IT SO ORDERED.

SIGNED this the..2.i.day o f _ : ; ; 1'8. '2015.

// 1111111111111111111111111111111111111111111111111111111 004101283 16 7/15/2015 2:55:08 PM Velva L. Price District Clerk Travis County NO. D-1-GN-15-000374 D-1-GN-15-000374

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR § Contestee § 201 ST JUDICIAL DISTRICT

CONTESTEE GREGORIO "GREG" CASAR'S REQUEST FOR SUPPLEMENTAL CLERK'S RECORD

TO THE HONORABLE CLERK OF TRAVIS COUNTY:

Pursuant to Texas Rule of Appellate Procedure 34.5(c), Gregorio "Greg" Casar requests the

clerk of this Court prepare a supplemental record containing a true copy of the proceedings in the trial

court for transmission to the Third Court of Appeals in Austin, Texas. Casar requests the papers

listed below, including exhibits, be included in the record:

DESCRIPTION DATE FILED 1. Contestee's Amended Motion for Sanctions 05/22/15 2. Contestee's Second Amended Motion for Sanctions 06/04/15 3. Notice of Withdrawal as Co-Counsel 06/05/15 4. Amended Summary Judgment Order 06/24/15 5. Sanctions Order _/_/15 6. Final Judgment _/_/15 7. Contestee's Request for Supplemental Clerk's Record _/_/15

Please advise us when the supplemental record is complete. We would like a copy of the

supplemental record and are prepared to pay the costs associated with preparing it.

Please also call if you have any questions or concerns.

17 Dated: July 15, 2015 Respectfully submitted,

By: /s/ Kurt Kuhn Jessica Palvino Kurt Kuhn State Bar No. 24048780 State Bar No. 24002433 jpalvino@mcginnislaw.com Kurt@KuhnHobbs.com MCGINNIS, LOCHRIDGE & KILGORE LLP Lisa Bowlin Hobbs 600 Congress Avenue, Suite 2100 State Bar No. 24026905 Austin, Texas 78701 Lisa@KuhnHobbs.com (512) 495-6079 KUHN HOBBS PLLC (512) 505-6379 (fax) 3307 Northland Drive, Suite 310 Austin, Texas 78731 (512) 476-6005 (512) 476-6002 (fax)

Charles Herring, Jr. State Bar No. 09534100 cherring@herring-irwin. com Lauren Ross State Bar No. 24092001 laurenbross@gmail.com HERRING & IRWIN, L.L.P. 1411 West Avenue, Suite 100 Austin, Texas 78701 (512) 320-0665 (512) 519-7580 (fax)

Counselfor Contestee1 Gregorio "Greg" Casar

Certificate of Service I hereby certify that, on July 15, 2015, and in compliance with the Texas Rules of Civil Procedure, a true and correct copy of this request has been served as follows:

Mark Cohen via e-S ervice THE LAW OFFICE OF MARK COHEN 805 West 1OthStreet, Suite 100 Austin, Texas 78701

David A. Rogers via e-S ervice LAW OFFICE OF DAVID ROGERS 1201 Spyglass Drive, Suite 100 Austin, Texas 78746

Counsel fOr Contestant, Laura Pressley

/s/ Kurt Kuhn Kurt Kuhn 2

18 DC BK15205 PG2204 Filed in The District Court of Travis County, Texas

JUL 2 3 2015 t1j- NO. D-1-GN-15-000374 At /(} t·s.] .,{,, M. Velva L. Price, District Clerk LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR § Contestee § 201 ST JUDICIAL DISTRICT

The Court has considered Contestee Casar's Third Amended Motion for

Sanctions, Contestant Laura Pressley's ("Pressley") Response to Contestee's Third

Amended Motion for Sanctions, Attorney David Rogers' ("Rogers") Response to

Contestee's Motion for Sanctions, Contestee's Reply to Rogers' Response, Rogers' Sur-

Reply to Rogers Response to Contestee's Third Amended Motion for Sanctions, the

pleadings and evidence in the record, and all of the evidence and argument offered at the

evidentiary hearings on June 18, 2015 and June 24, 2015. The Court FINDS and

ORDERS as follows:

1. Contestee Casar's Motion for Sanctions is GRANTED.

2. The Court finds that sanctions against David Rogers are justified and proper under

Chapter 10 ofthe Civil Practices and Remedies Code.

3. The Court finds that sanctions against Laura Pressley are justified and proper due

to her participatory role in this litigation under Chapter 10 of the Civil Practices and

Remedies Code.

4. Pursuant to Texas Civil Practice and Remedies Code§ 10.004(c)(3), Contestee

Casar shall recover from Contestant Laura Pressley individually monetary sanctions in

the amount of$ 40,000.00.

I\IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII Ill\ Ill\ 004133693

19 DC BK15205 PG2205

5. Pursuant to Texas Civil Practice and Remedies Code§ 10.004(c)(3), Contestee

Casar shall recover from Contestant's counsel David Rogers individually monetary

sanctions in the amount of$ 50,000.00.

6. If either Contestant Laura Pressley or Contestant's counsel David Rogers

unsuccessfully appeal this Order, pursuant to Texas Civil Practice and Remedies Code§

10.004(c)(3), Contestee Casar shall also recover from Contestant Laura Pressley, if

unsuccessful on appeal, and Contestant's counsel David Rogers, if unsuccessful on

appeal, additional monetary sanctions in the amount of$ 25,000.00, if appealed to the

Court of Appeals; $1 0,000.00; if a petition for review is filed in the Supreme Court of

Texas; $15,000.00 if full briefing is requested by the Supreme Court of Texas; and

$15,000.00 if oral argument is granted at the Supreme Court of Texas. Contestant Laura

Pressley shall pay these additional monetary sanctions only if she is unsuccessful on

appeal, and David Rogers shall pay these additional monetary sanctions only if he is

unsuccessful on appeal. These costs were derived from reviewing similar awards for cost

of appeals in the following cases. Marsalise v. Wallace, 2005 WL 1116010 (Tex.

App.-Austin, May 12, 2005, no pet.); R&R Resources Corp. v Echelon Oil & Gas,

LLC., 2010 W L 5575919 (Tex. App.-Austin, Jan 14,2011, pet denied); John Kleas

Co., Inc, v Prokop, 2015 WL 1544797 (Tex. App.-Corpus, April2, 2015, no pet.)

7. Pursuant to Texas Civil Practice and Remedies Code§§ 10.002 and 10.004,

Contestee shall recover from Contestant Laura Pressley and Contestant's counsel David

Rogers his reasonable expenses of$ 7,794.44. Contestant Laura Pressley and

Contestant's counsel David Rogers shall be jointly and severally liable for these

expenses.

20 DC BK15205 PG2206

8. In compliance with Section 10.005 ofthe Civil Practice and Remedies Code, the

Court makes the following Findings of Fact and Conclusion of Law supporting this Order

of sanctions:

FINDINGS OF FACT

9. In November 2002, Travis County began using the Hart Intercivic eSlate system

(the "Hart eSlate System") as an electronic voting system.

10. Since November 2011, Travis County has used a countywide voting system that

employs central voting centers. Instead of requiring voters to vote at their home precinct

polling locations, vote centers allow all registered voters in Travis County the option of

voting at any of the county's polling locations on Election Day.

11. Pressley and Casar were among eight candidates for the District 4 seat of the

Austin City Council at the November 4, 2014 general election. In the general election,

Casar received the highest number of votes (3,272 or 38.63%), Pressley received the

second-highest ( 1,826 or 21.56% ), and the remaining votes were distributed among the

other six candidates.

12. Some voting locations in the City of Austin were changed between the general

and the runoff elections as is normal practice for a runoff election. For the December 16,

2014 runoff, there were 136 citywide voting locations available to all City of Austin

voters. The City of Austin gave the public notice of the voting locations for the runoff

election and an opportunity to comment on the proposed locations. On November 13,

2014, the Austin City Council posted the agenda ofthe November 18,2014 Special

Called Meeting of the Austin City Council. The agenda included setting the run-off

election and making provisions for the runoff election. On Tuesday, November 18, 2014,

21 DC BK15205 PG2207

the Austin City Council held the special called meeting and approved an ordinance

ordering the runoff election. A list of all polling locations for the runoff was attached to

the City Council's approved ordinance. The locations were also posted at City Hall and in

the office of the City Clerk, as well as published in the newspaper. Additionally, the City

of Austin and the Travis County Clerk websites both posted information about the runoff

election and a list of polling locations.

13. At the November 18, 2014 Austin City Council meeting, neither Pressley nor any

of her ten campaign workers attended the meeting to lodge any complaint or objections

about the changes in voting locations. Pressley could have attended the meeting but did

not. Over the years, she has attended and commented at 30 or more Austin City Council

Meetings. She knows where the agendas are posted, knows how to read them in advance,

and is familiar with the process for commenting at a Council meeting.

14. Casar won the December 16, 2014 runoff election by a margin of almost 65% to

35%; the difference in their vote totals was 1,291 votes. 4,417 votes were cast in the

District 4 runoff election. Of those votes, 480 were mail-in ballots. The remaining 3,93 7

ballots were cast using Travis County's chosen electronic voting system, the Hart eSlate

System.

15. As required by Chapter 122 ofthe Election Code, and after an analysis ofthe Hart

eSlate System by a team of computer and election law experts, the Secretary of State

reviewed, approved, and certified the Hart eSlate System. The Secretary of State found

that the Hart eSlate System fully complied with Election Code requirements and, of

particular relevance in this case, was "capable of providing records from which the

operation of the system may be audited[.]"

22 DC BK15205 PG2208

16. On January 5, 2015, the day before Casar was to be sworn-in, Pressley filed a

recount petition with the Secretary of State. Before the recount took place, County Clerk

Dana DeBeauvoir offered to run an audit of the election results for Pressley. An audit

would have provided much more detailed information about the electronic votes than a

recount, including many of the questions Pressley has presented in this lawsuit. Pressley

refused DeBeauvoir's offer and demanded a recount. An audit would have provided a

reasonable opportunity to view issues raised in the lawsuit and would have allowed for a

reasonable inquiry into many of the allegations alleged by the Contestant in this lawsuit

to determine ifthere was merit to any of such claims.

17. On January 6, 2015, Travis County conducted a manual recount of all early,

election day, mail-in, and provisional ballots. The recount confirmed the election result.

Jay Brim, the Chair of the Recount Committee, and Dana DeBeauvoir, the Travis County

Clerk, supervised the recount. For votes cast electronically, the recount team printed off

the Cast Vote Records (CVRs), also called Ballot Images. Pressley witnessed the printing

of the Cast Vote Records. All votes were then manually recounted. Mr. Brim found that

the totals in all precincts matched those in the original canvas, and that the number of

voters matched the number of ballots cast. He declared that Casar remained the victor of

18. The Secretary of State had a representative present at the recount-Christina

Adkins. During the recount, Pressley complained to Ms. Adkins that the Cast Vote

Records were not "images ofballots cast," and pointed to the specific provisions of the

Election Code that she believed were germane. Ms. Adkins witnessed the County's use of

23 DC BK15205 PG2209

the Cast Vote Records for the recount, disagreed with Pressley's interpretation of the

Election Code, and refused to challenge the use of the Cast Vote Records in the recount.

19. After the recount, Pressley lodged several complaints regarding the recount with

the Secretary of State. One ofPressley's complaints was that she and her poll watchers

were not allowed to be present at the printing of the ballots as Pressley believed she was

entitled to view the source, properties, retrieval and counting of the ballots. In its January

20, 2015 response letter to Pressley, the Secretary of State dismissed this complaint and

confirmed that Pressley had been present when the "ballot images (also known as 'cast

vote records')" were printed:

You state that Travis County conducted activities such as extracting data from the Hart electronic voting system, compiling ballot images onto a centralized system, printing ballot images (also known as "cast vote records"), and sorting by mail ballots before the recount was scheduled to begin . . . . [W]e agree with you that you and your representatives under Section 213.013(b) were entitled to be present at the printing of the ballot images, and when you raised this issue with the Travis County Elections Division, Travis County agreed to re-print the ballot images in the presence of you and your watchers.

20. Responding to a subsequent complaint from Pressley, the Secretary of State again

made the same point in another letter, dated January 27, 2015. That letter also noted that

an inspector from the Secretary of State's office had confirmed the printing of the ballot

Images:

You have stated that upon your arrival, you discovered that ballot images had already been printed. You alerted Travis County to the issue and reminded them that you and your watchers were entitled to be present at the printing. In response, Travis County began anew with the printing of the ballot images in the presence of you and your watchers, and only the ballot images printed in your presence were used in the recount. This information is confirmed by the

24 DC BK15205 PG2210

inspector sent by our office to attend the recount. Therefore, our office believes you and your watchers were able to witness the printing of all ballot images used in verifying the vote count in your race.

21. With the Hart eState System, the permanent record of the vote cast is known as a

Cast Vote Record or CVR. A CVR is a data field representation depicting which votes

were cast on each voting device. The Cast Vote Records are used for counting votes and

a visual representation of the CVR can be printed in the event of a recount.

22. The U.S. Election Assistance Commission is an independent, bipartisan

commission charged with developing guidance to meet the requirements of the Help

America Vote Act of2002. It is charged by statute with adopting voluntary voting system

guidelines and to serve as a national clearinghouse of information on election

administration. In its Glossary of Key Election Tenninology, the U.S. Election

Assistance Commission defines "Cast Vote Record" as "a ballot image when used to

refer to electronic ballots."

23. The Texas Secretary of State defines "Cast Vote Record" as a Ballot Image. Ten

days before Pressley filed this lawsuit, the Secretary of State expressly stated in its

January 20, 2015 letter to Pressley that "ballot images" are also known as "cast vote

records."

24. As required by the Election Code, Travis County and the City of Austin used the

Secretary of State's definitions when interpreting the Election Code in this case.

25. On January 31, 2015, Pressley filed her Original Contest of Election against

Casar, seeking to overturn the results of the runoff election for the Austin City Council

District 4 seat. Pressley's Original Contest was signed by her counsel David Rogers.

26. In paragraphs 32 through 38, the Original Contest alleged that the Hart eState

25 DC BK15205 PG2211

System did not comply with the Texas Election Code because it could print only Cast

Vote Records, which Pressley claimed were not "images ofballots cast" under the Texas

Election Code. In paragraph 13, the Original Contest alleged that Travis County

disenfranchised District 4 voters because certain voting locations were changed between

the general election and the runoff election. In paragraphs 14 and 15, the Original Contest

alleged that Travis County did not print zero tapes and results tapes on Election Day as

required by the Texas Secretary of State. In paragraphs 26 through 44, the Original

Contest alleged that procedural irregularities occurred during the recount.

27. On February 18, 2015, Pressley filed her Second Amended Contest. In paragraphs

31 through 37, the Second Amended Contest alleged that the Hart eSlate System did not

comply with the Texas Election Code because it could print only Cast Vote Records,

which Pressley claimed were not "images of ballots cast" under the Texas Election Code.

In paragraph 13, the Second Amended Contest alleged that Travis County

disenfranchised District 4 voters because certain voting locations were changed between

the general election and the runoff election. In paragraphs 11 and 14, the Second

Amended Contest alleged that Travis County did not print zero tapes and results tapes on

Election Day as required by the Texas Secretary of State. In paragraphs 26 through 44,

the Second Amended Contest alleged that procedural irregularities occurred during the

recount.

28. On February 27, 2015, Pressley filed her Third Amended Contest. In paragraphs

43 through 53, the Third Amended Contest alleged that the Hart eSlate System did not

comply with the Texas Election Code because it could print only Cast Vote Records,

which Pressley claimed were not "images of ballots cast" under the Texas Election Code.

26 DC BK15205 PG2212

In paragraphs 12 through 23, the Third Amended Contest alleged that Travis County

disenfranchised District 4 voters because certain voting locations were changed between

the general election and the runoff election. In paragraphs 35 and 37, the Third Amended

Contest alleged that Travis County did not print zero tapes and results tapes on Election

Day as required by the Texas Secretary of State. In paragraphs 41 through 66, the Third

Amended Contest alleged that procedural irregularities occurred during the recount that

materially affected the election results.

29. On March 12,2015, Pressley filed her Fourth Amended Contest. In paragraphs 43

through 53, the Fourth Amended Contest alleged that the Hart eSlate System did not

comply with the Texas Election Code because it could print only Cast Vote Records,

which Pressley claimed were not "images of ballots cast" under the Texas Election Code.

In paragraphs 12 through 23, the Fourth Amended Contest alleged that Travis County

disenfranchised thousands of District 4 voters because certain voting locations were

changed between the general election and the runoff election. In paragraphs 35 and 37,

the Fourth Amended Contest alleged that Travis County did not print zero tapes and

results tapes on Election Day as required by the Texas Secretary of State. In paragraphs

41 through 66, the Fourth Amended Contest alleged that procedural irregularities

occurred during the recount that materially affected the election results.

30. On April 16, 2015, the deposition of Pressley took place. At her deposition,

Pressley admitted that she could not identify a single voter who was disenfranchised by

the change in voting locations for the runoff election. Pressley did testify she had spoken

with people who claimed they had difficulty in voting, but she was not able to obtain

even one affidavit from one voter who claimed to have been disenfranchised. Pressley

27 DC BK15205 PG2213

also admitted that she did not know what a Cast Vote Record was and that the U.S.

Election Assistance Commission, the Texas Secretary of State, Travis County, and the

City of Austin all reject her definition of"ballot image." Pressley also testified that she

did not know if zero tapes had been printed, where they may have been printed, or when.

31. On April 20, 2015, Pressley filed her Fifth Amended Contest. In paragraphs 49

through 59, the Fifth Amended Contest alleged that the Hart eSlate System did not

comply with the Texas Election Code because it could print only Cast Vote Records,

which Pressley claimed were not "images of ballots cast" under the Texas Election Code.

In paragraphs 12 through 29, the Fifth Amended Contest alleged that Travis County

disenfranchised thousands of District 4 voters because certain voting locations were

changed between the general election and the runoff election. In paragraphs 41 and 43,

the Fifth Amended Contest alleged that Travis County did not print zero tapes and results

tapes on Election Day as required by the Texas Secretary of State. In paragraphs 47

through 74, the Fifth Amended Contest alleged that procedural irregularities occurred

during the recount that materially affected the election results.

32. Pressley filed her final and Sixth Amended Contest on May 19, 2015. In

paragraphs 3, 13, 82, 84, and 97 through 138, the Sixth Amended Contest alleged that the

Hart eSlate System did not comply with the Texas Election Code because it could print

only Cast Vote Records, which Pressley claimed were not "images ofballots cast" under

the Texas Election Code. In paragraphs 3, 4, 8, 42 through 52, and 64, the Fifth Amended

Contest alleged that Travis County did not print zero tapes and results tapes on Election

Day as required by the Texas Secretary of State. In paragraphs 82 through 101, the Fifth

Amended Contest alleged that procedural irregularities occurred during the recount that

28 DC BK15205 PG2214

materially affected the election results. In paragraphs 93 and 94, Pressley alleged that

Travis County Director of Elections Michael Winn committed a criminal violation by not

allowing Pressley and her poll watchers to view the source, properties, and copying of the

CVR files during the recount. Pressley dropped from her Sixth Amended Contest her

allegations that Travis County disenfranchised thousands of District 4 voters because

certain voting locations were changed between the general election and the runoff

33. Travis County produced documents in this case on April22 and 23, 2015. County

Clerk Dana DeBeauvoir was deposed on May 11, 2015. The due date for the Motion for

Summary Judgment response was May 19,2015. On May 22,2015, County Clerk Dana

DeBeauvoir made changes to her deposition testimony.

34. On May 26, 2015, after briefing and a hearing, this Court granted Casar's no-

evidence summary judgment motion, which establishes that Pressley failed to raise any

genuine issue of material fact in response to Casar's motion.

35. Rogers had prior experience working on election contest cases. According to

Rogers, most successful election contests involved a margin of victory of less than 50

votes.

36. Before filing the Contests, Rogers had never heard of an election contest case in

which a contestant had overcome a margin of victory of 1,291 votes.

37. Before filing the Contests, Rogers was aware of the Texas Supreme Court

decision in Andrade v. NAACP, 345 S.W.3d 1 (Tex. 2011), in which the Texas Supreme

Court rejected an equal-protection challenge to the Hart eSlate System and held that

"[t[he Secretary [of State] made a reasonable, nondiscriminatory choice to certify the

29 DC BK15205 PG2215

eSlate, a decision justified by the State's important regulatory interests."

38. The Cast Vote Record is a "ballot image" as that term is used in the Texas

Election Code.

39. The U.S. Election Assistance Commission and Texas Secretary of State have

consistently stated that for electronic voting, the Cast Vote Record is the Ballot Image.

The Secretary of State stated this to Pressley explicitly in its January 20, 2015 letter to

her.

40. The City of Austin and Travis County define a Cast Vote Record as a Ballot

41. Texas Election Code § 52.075 gives the Secretary of State authority to prescribe

the form and content ofballots for electronic voting machines.

42. Texas Election Code§ 129.002 of the Election Code gives the Secretary of State

the authority to implement Direct Recording Electronic voting systems that utilize Cast

Vote Records.

43. Pressley and Rogers did not cite the 1990 Federal Election Commission

Performance and Test Standards until the Sixth Amended Contest, and these standards do

not distinguish a Ballot Image from a Cast Vote Record. The 2002 Federal Election

Commission Report entitled "Voting Systems Standards Volume I- Performance

Standards" defines Ballot Image as "an electronic record of all votes cast by the voter."

44. Pressley and Rogers did not cite the 2007 Source Code Review of the Hart

Intercivic Voting System until the Sixth Amended Contest, and this report does not

distinguish a Ballot Image from a Cast Vote Record.

45. The allegation that the consolidation or changing of voting locations for the runoff

30 DC BK15205 PG2216

election disenfranchised District 4 voters is not warranted by existing law or by a

nonfrivolous argument for the extension, modification, or reversal of existing law or the

establishment ofnew law. See Gonzalez v Villarreal, 251 S.W.3d 763,777-778 (Tex.

App.-Corpus Christi 2008, pet. dism'd w.o.j.).

46. There is no evidentiary support for the allegation that the consolidation or

changing of voting locations for the runoff election disenfranchised District 4 voters.

47. The Texas Secretary of State repeatedly rejected Pressley's complaints regarding

alleged irregularities at the recount, including both at the recount itself and in multiple

subsequent letters responding to Pressley's complaints.

48. The allegation that irregularities allegedly occurred during the recount materially

affected the outcome of the runoff election is not warranted by existing law or by a

nonfrivolous argument for the extension, modification, or reversal of existing law or the

establishment of new law.

49. There is no evidentiary support for the allegation that irregularities that allegedly

occurred during the recount materially affected the outcome of the runoff election. See

Gonzalez v Villarreal, 251 S.W.3d 763, 777-778 (Tex. App.-Corpus Christi 2008, pet.

dism'd w.o.j.).

50. The allegations that Travis County Director of Elections Michael Winn

committed a criminal violation are not warranted by existing law or by a non-frivolous

argument for the extension, modification or reversal of existing law.

51. There is no evidentiary support for the allegation that Travis County Director of

Elections Michael Winn committed a Class A misdemeanor criminal violation by not

allowing Pressley and her poll watchers to view the source, properties, and copying of the

31 DC BK15205 PG2217

CVR files at the recount. The Election Code provides that at a recount, the candidate and

her representatives are entitled to be present "during the printing of the images [ofballots

cast]." Pressley and her poll watchers were present while the Travis County recount team

printed all of the CVRs for the recount. The Secretary of State confirmed this in its

January 27, 2015 letter to Pressley, stating "Travis County began anew with the printing

of the ballot images in the presence of you and your watchers, and only the ballot images

printed in your presence were used in the recount. This information is confirmed by the

inspector sent by our office to attend the recount. Therefore, our office believes you and

your watchers were able to witness the printing of all ballot images used in verifying the

vote count in your race."

52. Pressley and Rogers failed to exercise due diligence in investigating the

evidentiary support for each of the allegations in the Contests before filing them.

53. Pressley testified that she does not know what a "Cast Vote Record" is.

54. Pressley acknowledged that the U.S. Election Assistance Commission, the Texas

Secretary of State, Travis County, and the City of Austin all reject her definition of

"ballot image."

55. Over 100 counties in Texas use the Hart eSlate System. County Clerk DeBeauvoir

testified that, before this lawsuit, she had never heard anyone ever allege that CVRs are

not ballot images for purposes of electronic voting. She also serves on the Standards

Board for the U.S. Election Assistance Commission.

56. County Clerk DeBeauvoir fully complied with the Texas Election Code and

Secretary of State procedures in conducting the general and runoff elections.

57. Pressley failed to exercise her right to comment on or object to any of the voting

32 DC BK15205 PG2218

location changes at the Austin City Council meeting.

58. Consolidating voting locations between a general election and a runoff election is

a routine and entirely legal and proper practice. Such changes occur for a variety of

legitimate reasons, including to achieve cost and staffing efficiencies due to the lower

voter turnout and fewer number of candidates generally associated with runoffs. In this

election, a total of304 candidates were on the ballot countywide at the November 4, 2014

general election. By contrast, in the runoff election in District 4, only four races were on

the ballot: this Council race, the Mayor's race, and 2 school district races-a total of

eight candidates.

59. Because Travis County uses countywide voting centers, any voter in Travis

County could vote at any one ofthe 136 voting locations across the county for the runoff

election. In District 4 alone, there were 9 voting centers within the district, as well as 7

centers located within a five-minute drive of the district and 17 centers located within a

ten-minute drive of the district.

60. Pressley testified if a voter had to drive as little as 20 seconds to a new voting

location, that voter was disenfranchised.

61. Rogers did not identify a single witness who could or would testify that changes

in voting locations had disenfranchised District 4 voters.

62. When Pressley was deposed on Aprill6, 2015, she could not identify a single

voter who was disenfranchised as a result of the changes in voting locations. Four days

later, on April20, 2015, she filed her Fifth Amended Contest, which alleged in Paragraph

29 that 1,108 voters, at least, were disenfranchised as a result of the change in voting

location.

33 DC BK15205 PG2219

63. There is no evidentiary support for the allegation that the Austin City Council

changed the voting locations for the runoff to disenfranchise any District 4 voters.

64. There is no evidentiary support for the allegation that the changes in the voting

locations for the runoff resulted in the disenfranchisement of any District 4 voters.

65. There is no evidentiary support that any voter was actually prevented from voting

at the new locations.

66. Paragraph 42 of Pressley's Sixth Amended Contest states that "[r]eview of

Discovery documents provided by Travis County [shows that] no Zero Tapes (showing

the number of votes present on the Hart Voting equipment for each candidate when the

polls open) were printed during Early Voting and no Zero Tapes were printed on Election

Day of the Runoff." Similar allegations are contained in ,-r,-r 3, 8, 43, & 64 of the Sixth

Amended Contest and in prior Contests.

67. Zero Tapes were produced to Pressley and Rogers by Travis County during their

document production on April22 and 23, 2015. Pressley's Sixth Amended Contest was

filed on May 19, 2015.

68. Travis County printed zero tapes both before the runoff election and on the day of

the runoff election. There is no evidentiary support for the allegation that zero tapes were

not printed on the day of the runoff election.

69. Pressley and Rogers attached as Exhibit C to the Sixth Contest a zero tape that

was printed on December 16, 2014, the day of the runoff election.

70. Results tapes were printed the day of the runoff election. There is no evidentiary

support for the allegation that results tapes were not printed as required by the Texas

Secretary of State.

34 DC BK15205 PG2220

71. Pressley took a personal and participatory role in this lawsuit. Pressley testified

she personally authored portions of the Contests and their appendices. She estimated that

she spent hours and hours working on the lawsuit and that she had worked until 3 :00 a.m.

drafting the Contests. Pressley was present at the deposition of County Clerk

DeBeauvoir, as well as the two-day document production by the County Clerk's office.

72. Pressley testified at least three people assisted her in drafting discovery and with

various other aspects of this election contest.

73. Pressley testified Contestee Casar has done nothing wrong in the conduct of the

74. Pressley testified she has assets and income sufficient to be able to pay a

monetary sanction. Specifl.cally, Pressley has: (1) approximately $30,000 to $40,000 that

she has raised for the cost of pursuing this Contest and the appeal; (2) at least $170,000 in

her business account for Pure Rain LLC, which is a Limited Liability Company of which

she is the only owner; (3) real estate in Wyoming with a net value ofbetween $10,000

and $25,000; (4) profit from a home that she and her husband recently sold for

approximately $530,000; (5) annual sales of$50,000 to $60,000 per year from Pure Rain

LLC; (6) annual income of approximately $130,000 to $160,000 from her husband's job

as an engineer at Applied Materials; (7) a personal checking account valued at

approximately $1 ,000; (8) her husband's personal account which is valued at

approximately $5,000; and (9) savings of approximately $51,500 in legal fees which were

owed to her attorney David Rogers. Additionally, Pressley has income earning capacity

of over $100,000 per year based on her previous jobs.

75. Rogers has assets and income sufficient to be able to pay a monetary sanction.

35 DC BK15205 PG2221

Specifically, Rogers is a practicing attorney who charges approximately $350/hour.

Additionally, Rogers testified he has the financial ability to be able to forgo legal fees of

approximately $51,500 from Pressley.

Findings of Fact Supporting Attorneys Fees

76. During this litigation, Casar retained Charles Herring, Jr. and Lauren Ross of

Herring & Irwin LLP and Jessica Palvino of McGinnis Lochridge & Kilgore LLP.

77. The services rendered by Charles Herring, Jr., Lauren Ross, and Jessica Palvino in

defending Casar in this litigation were reasonable and necessary for these types of

services in Travis County.

78. The fees charged by Herring & Irwin LLP and McGinnis Lochridge & Kilgore

LLP in defending Casar in this litigation were $ 150,000.00.

79. The fees and rates charged by Charles Herring, Jr., Lauren Ross, and Jessica

Palvino in defending Casar in this litigation were reasonable and customary for these

types of services in Travis County.

CONCLUSIONS OF LAW

80. Irregularities that allegedly occurred during the recount did not materially affect

the outcome of the runoff election. See Gonzalez v Villarreal, 251 S.W.3d 763, 777-778

(Tex. App.-Corpus Christi 2008, pet. dism'd w.o.j.) (headnotes 10 and 11).

81. At the time the Original, Second Amended, Third Amended, Fourth Amended,

Fifth Amended, and Sixth Amended Contests were filed, Rogers certified that to his best

knowledge, information, and belief, formed after reasonable inquiry, that the allegation

that irregularities that occurred during the recount materially affected the outcome of the

runoff election was warranted by existing law or by a non-frivolous argument tor the

36 DC BK15205 PG2222

extension, modification, or reversal of existing law or the establishment of new law.

82. There is no evidentiary support for the allegation that irregularities that allegedly

occurred during the recount materially affected the outcome of the runoff election. See

Gonzalez v Villarreal, 251 S.W.3d 763,777-778 (Tex. App.-Corpus Christi 2008, pet.

83. Rogers failed to conduct a reasonable inquiry into whether each allegation (that

irregularities that allegedly occurred during the recount materially affected the outcome

of the runoff election) was warranted by existing law or by a nonfrivolous argument for

the extension, modification, or reversal of existing law or the establishment of new law.

84. Rogers knew or should have known this allegation (that irregularities that

allegedly occurred during the recount materially affected the outcome of the runoff

election) was not warranted by existing law or by a non-frivolous argument for the

extension, modification, or reversal of existing law or the establishment of new law.

85. A reasonable inquiry would have revealed irregularities that allegedly occurred

during the recount did not materially affect the outcome of the runoff election.

86. The allegations that irregularities that allegedly occurred during the recount

materially affected the outcome of the runoff election were not supported by existing law

and there was not a non-frivolous argument for the extension, modification, or reversal of

existing law or the establishment of new law.

87. By failing to conduct a reasonable inquiry into whether the legal contentions in

the Contests were warranted by existing law or by a non-frivolous argument for the

extension, modification or reversal of existing law, Rogers violated Section 10.001 (2) of

the Civil Practices and Remedies Code.

37 DC BK15205 PG2223

88. By asserting legal contentions in the Contests that were not warranted by existing

law or by a non-frivolous argument for the extension, modification or reversal of existing

law, Rogers violated Section 10.001(2) ofthe Civil Practices and Remedies Code.

89. This Court has authority to impose a sanction on David Rogers because of this

violation of Section 10.001 (2). This authority arises from Texas Civil Practice and

Remedies Code Section 10.004, which states that "a court that determines that a person

has signed a pleading or motion in violation of Section 10.001 may impose a sanction on

the person, a party represented by the person, or both."

90. At the time that the Original, Second Amended, Third Amended, Fourth

Amended, Fifth Amended, and Sixth Amended Contests were filed, Rogers and Pressley

certified that, to the best of their knowledge, information, and belief, formed after

reasonable inquiry, each allegation or other factual contention in the Contests had

evidentiary support, including the allegation that irregularities that allegedly occurred

during the recount materially affected the outcome of the runoff election.

91. At the time that the Original, Second Amended, Third Amended, Fourth

Amended, Fifth Amended, and Sixth Amended Contests were filed, Rogers and Pressley

failed to conduct a reasonable inquiry into whether their allegation (that irregularities that

allegedly occurred during the recount materially affected the outcome of the runoff

election) had evidentiary support.

92. At the time that the Original, Second Amended, Third Amended, Fourth

Amended, Fifth Amended, and Sixth Amended Contests were filed, Rogers and Pressley

knew or should have known their allegation that irregularities that allegedly occurred

during the recount materially affected the outcome of the runoff election did not have

38 DC BK15205 PG2224

evidentiary support.

93. The allegation that irregularities that allegedly occurred during the recount

materially affected the outcome of the runoff election has no evidentiary support.

94. By failing to make a reasonable inquiry into whether factual claims in the

Contests had evidentiary support, Pressley and Rogers violated Section 10.001(3) ofthe

Civil Practices and Remedies Code.

95. By asserting factual claims in the Contests that Pressley and Rogers knew were

without evidentiary support, Pressley and Rogers violated Section 10.001(3) ofthe Civil

Practices and Remedies Code.

96. This Court has authority to impose a sanction on David Rogers and on Laura

Pressley because of this violation of Section 10.001 (3 ). This authority arises from Texas

Civil Practice and Remedies Code Section 10.004, which states that "a court that

determines that a person has signed a pleading or motion in violation of Section 10.001

may impose a sanction on the person, a party represented by the person, or both."

97. Travis County Director of Elections Michael Winn did not commit a criminal

violation by not allowing Pressley and her poll watchers to view the source, properties,

and copying of the CVR files during the recount.

98. At the time the Sixth Amended Contest was filed, Rogers certified that to the best

of his knowledge, information, and belief, formed after reasonable inquiry, that the

allegation that Mr. Winn committed a criminal violation by not allowing Pressley and her

poll watchers to view the source, property, and copying of the CVR files was warranted

by existing law or by a non-frivolous argument for the extension, modification, or

reversal of existing law or the establishment of new law.

39 DC BK15205 PG2225

99. Rogers failed to conduct a reasonable inquiry into whether this allegation (that

Michael Winn committed a criminal violation) was warranted by existing law or by a

non-frivolous argument for the extension, modification, or reversal of existing law or the

100. Rogers knew that this allegation (that Michael Winn committed a criminal

violation) was not warranted by existing law or by a non-frivolous argument for the

extension, modification, or reversal of existing law or the establishment of new law.

101. A reasonable inquiry would have revealed that Mr. Winn did not violate Texas

Election Code§ 33.061 by not allowing Pressley and her poll watchers to view the source

and properties of the CVR files during the recount; that, under Election Code§ 213.016,

Pressley and her poll watchers were allowed to be and were present for the printing of the

CVRs; and that nothing in the Election Code authorized Pressley or her poll watchers to

view the source and properties of the CVR files, such as dates of the CVR files and

origination.

102. The allegations that Mr. Winn committed criminal violations were not supported

by existing law and there was not a non-frivolous argument for the extension,

modification, or reversal of existing law or the establishment of new law.

103. By failing to conduct a reasonable inquiry into whether the legal contentions in

the Contests were warranted by existing law or by a non-frivolous argument for the

extension, modification or reversal of existing law, Rogers violated Section 10.001(2) of

104. By asserting legal contentions in the Contests that were not warranted by existing

law or by a non-frivolous argument for the extension, modification or reversal of existing

40 DC BK15205 PG2226

law, Rogers violated Section 10.001(2) ofthe Civil Practices and Remedies Code.

105. This Court has authority to impose a sanction on David Rogers because of this

violation of Section 10.001 (2). This authority arises from Texas Civil Practice and

Remedies Code Section 10.004, which states that "a court that determines that a person

has signed a pleading or motion in violation of Section 10.001 may impose a sanction on

106. At the time the Sixth Amended Contest was filed, Rogers and Pressley certified

that, to the best of their knowledge, information, and belief: formed after reasonable

inquiry, each allegation or other factual contention in the Contests had evidentiary

support, including the allegation that Mr. Winn committed a criminal violation by not

allowing Pressley and her poll watchers to view the source, property, and copying of the

CVR files.

107. At the time that the Sixth Amended Contest was filed, Rogers and Pressley failed

to conduct a reasonable inquiry into whether their allegation (that Mr. Winn committed a

criminal violation by not allowing Pressley and her poll watchers to view the source,

property, and copying of the CVR files) had evidentiary support.

108. At the time that the Sixth Amended Contest was filed, Rogers and Pressley knew

that their allegation (that Mr. Winn committed a criminal violation by not allowing

Pressley and her poll watchers to view the source, property, and copying of the CVR

files) did not have evidentiary support.

109. The allegation that Mr. Winn committed a criminal violation by not allowing

Pressley and her poll watchers to view the source, property, and copying of the CVR files

has no evidentiary support.

41 DC BK15205 PG2227

110. By failing to make a reasonable inquiry into whether factual claims in the

Contests had evidentiary support, Pressley and Rogers violated Section 10.001(3) ofthe

111. By asserting factual claims in the Contests that Pressley and Rogers knew were

without evidentiary support, Pressley and Rogers violated Section 10.001(3) ofthe Civil

112. This Court has authority to impose a sanction on David Rogers and on Laura

Pressley because of this violation of Section 10.001 (3 ). This authority arises from Texas

Civil Practice and Remedies Code Section 10.004, which states that "a court that

determines that a person has signed a pleading or motion in violation of Section 10.001

may impose a sanction on the person, a party represented by the person, or both."

113. No credible evidence exists to prove that any Travis County voters were

disenfranchised by the consolidation of voting locations between the general election,

held on November 4, 2014 and the runoff election held on December 16, 2014.

114. At the time that the Original, Second Amended, Third Amended, Fourth

Amended, and Fifth Amended Contests were filed, Rogers certified that to his best

knowledge, information, and belief, formed after reasonable inquiry, that the allegation

that Travis County illegally disenfranchised District 4 voters by consolidating voting

locations was warranted by existing law or by a non-frivolous argument for the extension,

modification, or reversal of existing law or the establishment of new law.

115. At the time that the Original, Second Amended, Third Amended, Fourth

Amended, and Fifth Amended Contests were filed, Rogers failed to conduct a reasonable

inquiry in whether this allegation (that Travis County illegally disenfranchised District 4

42 DC BK15205 PG2228

voters by consolidating voting locations) was supported by existing law or a non-

frivolous argument for extension, modification, or reversal of existing law or the

116. At the time that the Original, Second Amended, Third Amended, Fourth

Amended, and Fifth Amended Contests were filed, Rogers knew or should have known

that this allegation (that Travis County illegally disenfranchised District 4 voters by

consolidating voting locations) was unsupported by existing law or a non-frivolous

argument for extension, modification, or reversal of existing law or the establishment of

new law.

11 7. A reasonable inquiry would have revealed that existing law did not support the

allegation that voters had been illegally disenfranchised by the consolidation of voting

locations, and that there was not a non-frivolous argument for the extension,

modification, or reversal of existing law or the establishment of new law.

118. By failing to conduct a reasonable inquiry into whether the legal contentions in

the Contests were warranted by existing law or by a non-frivolous argument for the

extension, modification or reversal of existing law, Rogers violated Section 10.001 (2) of

119. By asserting legal contentions in the Contests that were not warranted by existing

law or by a non-frivolous argument for the extension, modification or reversal of existing

law, Rogers violated Section 10.001(2) ofthe Civil Practices and Remedies Code.

120. At the time that the Original, Second Amended, Third Amended, Fourth

Amended, and Fifth Amended Contests were filed, Rogers and Pressley certified that, to

the best of their knowledge, information, and belief, formed after reasonable inquiry,

43 DC BK15205 PG2229

each allegation or other factual contention in the Contest had evidentiary support,

including the allegations that Travis County illegally disenfranchised District 4 voters by

consolidating voting locations.

121. At the time that the Original, Second Amended, Third Amended, and Fourth

Amended Contests were filed, Rogers and Pressley failed to conduct a reasonable inquiry

into whether these factual allegations (that Travis County illegally disenfranchised

District 4 voters by consolidating voting locations) had evidentiary support.

122. At the time that the Original, Second Amended, Third Amended, and Fourth

Amended Contests were filed, Rogers and Pressley knew that these factual allegations

(that Travis County illegally disenfranchised District 4 voters by consolidating voting

locations) had no evidentiary support.

123. At the time that the Fifth Amended Contest was filed, Rogers and Pressley knew

that these allegations (that Travis County illegally disenfranchised District 4 voters by

consolidating voting locations) did not have evidentiary support. Pressley testified four

days prior to filing the Fifth Amended Contest that she could not identify a single voter

who was disenfranchised due to the change in voting locations. Pressley testified that

regardless of the fact that she could not obtain one affidavit from one voter attesting to

disenfranchisement of voters, she made her claims based on statistical analysis of prior

voting patterns and conversations she had with persons she could not identify.

124. The allegation that Travis County illegally disenfranchised thousands of District 4

voters by consolidating voting locations has no evidentiary support.

125. By failing to make a reasonable inquiry into whether factual claims in the

Contests had evidentiary support, Pressley and Rogers violated Section 10.001(3) ofthe

44 DC BK15205 PG2230

126. By asserting factual claims in the Contests that Pressley and Rogers knew were

without evidentiary support, Pressley and Rogers violated Section 10.001(3) ofthe Civil

127. This Court has authority to impose a sanction on David Rogers and Laura

Pressley because of this violation of Section 10.001 (3). This authority arises from Texas

Civil Practice and Remedies Code Section 10.004, which states that "a court that

determines that a person has signed a pleading or motion in violation of Section 10.001

may impose a sanction on the person, a party represented by the person, or both."

128. Travis County printed zero tapes and results tapes for the runoff election as

required by the Texas Secretary of State. Some of the zero tapes were printed prior to the

date ofthe run-off election held on December 16,2014.

129. At the time that the Original, Second Amended, Third Amended, Fourth

Amended, and Fifth Amended Contests were filed, Rogers and Pressley certified that, to

the best of their knowledge, information, and belief, formed after reasonable inquiry,

each allegation or other factual contention in the Contest had evidentiary support,

including the allegations that Travis County failed to print zero tapes and results tapes in

accordance with the Texas Secretary of State's requirements.

130. At the time that the Sixth Amended Contest was filed, Rogers and Pressley

certified that, to the best of their knowledge, information, and belief, formed after

reasonable inquiry, each allegation or other factual contention in the Contest had

evidentiary support, including the allegations that "discovery documents provided by

Travis County [shows that] no Zero Tapes (showing the number of votes present on the

45 DC BK15205 PG2231

Hart Voting equipment for each candidate when the polls open) were printed during

Early Voting and no Zero Tapes were printed on Election Day of the Runoff."

131. At the time that the Original, Second Amended, Third Amended, Fourth

Amended, and Fifth Amended Contests were filed, Rogers and Pressley knew that these

allegations (that Travis County failed to print zero tapes and results tapes in accordance

with the Texas Secretary of State's requirements) lacked evidentiary support.

132. At the time that the Original, Second Amended, Third Amended, Fourth

Amended, and Fifth Amended Contests were filed, Rogers and Pressley failed to conduct

a reasonable inquiry into whether these allegations (that Travis County failed to print

zero tapes and results tapes in accordance with the Texas Secretary of State's

requirements) had evidentiary support.

133. At the time that the Sixth Amended Contest was filed, Rogers and Pressley knew

that these allegations (that Travis County failed to print zero tapes and results tapes in

accordance with the Texas Secretary of State's requirements and that discovery

documents provided by Travis County showed that no Zero Tapes were printed during

Early Voting and no Zero Tapes were printed on Election Day of the Runoff) lacked

evidentiary support. Zero Tapes were produced by Travis County during their document

production on April22 and 23, 2015. Pressley's Sixth Amended Contest was filed on

May 19,2015. Pressley and Rogers attached as Exhibit C to the Sixth Contest a zero tape

that was printed on December 16, 2014, the day of the runoff election. County Clerk

Dana DeBeauvoir testified in her deposition on May 11, 2015 that zero tapes and results

134. The allegations that Travis County failed to print zero tapes and results tapes in

46 DC BK15205 PG2232

accordance with the Texas Secretary of State's requirements have no evidentiary support.

Some of the zero tapes were not printed on December 16, 2014, the date of the runoff

135. The allegations that discovery documents provided by Travis County showed that

no Zero Tapes were printed during Early Voting and no Zero Tapes were printed on

Election Day of the Runoffhas no evidentiary support.

136. By failing to make a reasonable inquiry into whether factual claims in the

Contests had evidentiary support, Pressley and Rogers violated Section 10.001(3) of the

137. By asserting factual claims in the Contests that Pressley and Rogers knew were

without evidentiary support, Pressley and Rogers violated Section 10.001(3) of the Civil

138. This Court has authority to impose a sanction on David Rogers and Laura

Pressley because ofthis violation ofSection 10.001(3). This authority arises from Texas

Civil Practice and Remedies Code Section 10.004, which states that "a court that

determines that a person has signed a pleading or motion in violation of Section 10.001

may impose a sanction on the person, a party represented by the person, or both."

139. The factors articulated by the Texas Supreme Court in Low v. Henry, 221 S.W.3d

609 (Tex. 2007), support an award of sanctions in this case.

140. The first Low factor, the good faith or bad faith of the offender, weighs in favor of

awarding sanctions. Pressley's conduct during the case, including making false

allegations of criminal activity against the Travis County Director of Elections Michael

Winn, indicate that she was not acting in good faith.

47 DC BK15205 PG2233

141. The second Low factor, the degree of willfulness, vindictiveness, negligence, or

frivolousness involved in the offense, weighs heavily in favor of sanctions. Pressley lost

the election by a margin of 1,291 votes, a margin far greater than Rogers had ever seen

and greater than has been overcome in the history of reported Texas jurisprudence. The

Hart eSlate system, which Pressley alleges violated the Texas Election Code, was

certified by the Texas Secretary of State and variations of the system have been used in

other counties in Texas. There are two court decisions rejecting attacks on the Hart eSlate

system. In the Andrade v. NAACP case, 345 S.W.3d 1 (Tex. 2011), the Texas Supreme

Court found that "[t]he Secretary made a reasonable, nondiscriminatory choice to certify

the eSlate, a decision justified by the State's important regulatory interests." In Texas

Democratic Party v. Williams, No. A-07-CA-115-SS (W.O. Tex. Aug. 16, 2007), the

Western District of Texas noted that the Secretary of State "made a reasonable, politically

neutral, and non-discriminatory choice to certify the eSlate voting machines for use in

elections, and nothing in the Constitution forbids this choice." Rogers was either aware of

or failed to adequately investigate the legal and factual bases for Pressley's allegations.

142. The third Low factor, the knowledge, experience, and expertise of the offender,

also weighs in favor of awarding sanctions. Rogers is an experienced attorney who has

handled election contests previously and holds himself out as being knowledgeable

regarding election contests. Pressley has a PhD in Chemistry, is actively involved in her

community, and has appeared before Austin City Council at least thirty times. She was

personally involved in drafting portions of the Contests and discovery.

143. The fourth Low factor, any prior history of sanctionable conduct on the part of the

offender, is not applicable in this case.

48 DC BK15205 PG2234

144. The fifth Low factor, the reasonableness and necessity of the out-of-pocket

expenses incurred by the offended person as a result of the misconduct, weighs in favor

of awarding sanctions. Contestee Casar seeks the reasonable and necessary attorney's

fees incurred in defending this election contest, and his attorneys are charging a reduced

hourly rate. Casar has not yet paid any of his attorney fees.

145. The sixth Low factor, the nature and extent of prejudice, apart from out-of-pocket

expenses, suffered by the offended person as a result of the misconduct, also weighs in

favor of awarding sanctions. Contestee Casar is now a Council Member for the City of

Austin, and has been required to divide his time between his duties as a Council Member

and responding to Pressley's Election Contests. His city council annual salary is

approximately $70,000.00.

146. The seventh Low factor, the relative culpability of client and counsel, also weighs

in favor of awarding sanctions. Pressley took a personal and participatory role in this

lawsuit. She testified she drafted portions of the Contests, drafted discovery questions to

Travis County for Rogers to decide how to use, and was, according to Rogers, the most

hands-on client he's ever had.

14 7. The eighth Low factor, the risk of chilling the specific type of litigation involved,

also weighs in favor of awarding sanctions. There should not be a chilling effect from

awarding sanctions in this case, as the purpose of sanctions in this case would be to

encourage compliance with Chapter 10.

148. The ninth Low factor, the impact of the sanction on the offender, including the

offender's ability to pay a monetary sanction, also weighs in favor of awarding sanctions.

Pressley has assets and income potential due to her high level of education sufficient to

49 DC BK15205 PG2235

justify the award of sanctions. Rogers has the ability to earn income sufficient to justify

the award of sanctions.

149. The tenth Low factor, the impact of the sanction on the offended party, including

the offended person's need for compensation, also weighs in favor of awarding sanctions.

Pressley testified she knew of nothing Contestee Casar did wrong in the conduct of the

election. Because of Pressley's election contest, Contestee Casar has incurred more than

$150,000 in attorney's fees and has been unable to fully devote himself to his role as City

Councilmember. His annual income as a council member is far less than Ms. Pressley's.

150. The eleventh Low factor, the relative magnitude of sanction necessary to achieve

the goal or goals of the sanction, also weighs in favor of awarding sanctions. The goals in

awarding sanctions, according to the Texas Supreme Court in Remington Arms v.

Caldwell are compensation, punishment, and deterrence. 850 S.W.2d 167 (Tex. 1993).

The Texas Civil Practices and Remedies Code Section 10.004 states that the sanction

must be limited to what is sufficient to deter repetition of the conduct or comparable

conduct by others similarly situated. The same challenge to the Hart eSlate voting system

that was brought by Pressley in this Election Contest could have been brought against any

elected official in Austin, Travis County, or the hundreds of other counties in Texas that

use the eSlate voting machine. It is important to deter these types of challenges to the

Hart eSlate voting system, which has been fully approved and certified by the Texas

151. The twelfth Low factor, burdens on the court system attributable to the

misconduct, including consumption of judicial time and incurrence of juror fees and other

court costs, have to date minimal impact in favor of awarding sanctions.

50 DC BK15205 PG2236

152. The thirteenth Low factor, the degree to which the offended person's own

behavior caused the expenses for which recovery is sought, also weighs in favor of

awarding sanctions. Pressley admits that Casar did nothing wrong in the conduct of the

153. Rogers and Pressley failed to show due diligence in violation of Section 10.002 of

154. All Conclusions of Law shall also be deemed to be Findings of Fact. To the extent

any Conclusion of Law is a Finding of Fact or is a mixed question oflaw and fact, the

same is found as a fact.

IT SO ORDERED. tL SIGNED this the 2} day of

51 Filed in The District Court DC BK15212 PG776 of Travis County, Texas

JUL 2 3 2015 q At ( .0 I 0'0.:.:Y AM. NO. D-1-GN-15-000374 Velva L. Price, District Clerk

LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § V. § TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR § Contestee § 201 ST JUDICIAL DISTRICT

Amended Final Judgment

On May 26, 2015, the Court entered a final summary judgment order granting

Contestee Casar's No-Evidence Motion for Summary Judgment. On June 12,2015,

Contestee Casar timely filed his Third Amended Motion for Sanctions to amend the May

26,2015 Order to include an award of sanctions. On June 24,2015, the Court entered an

Amended Summary Judgment Order that amended and replaced the May 26,2015 Order.

The Court now enters this Amended Final Judgment and FINDS and ORDERS as

follows:

1. Contestee Casar's Third Amended Motion for Sanctions is GRANTED.

2. Pursuant to Texas Civil Practice and Remedies Code § 10.005, the Court

entered an order on July 23, 2015 that describes the conduct the Court has

determined violated Texas Civil Practice and Remedies Code§ 10.001,

and explains the basis for the sanctions imposed. The Court incorporates

by reference that Order herein.

3. Contestee Casar's No-Evidence Motion for Summary Judgment is

GRANTED.

4. The Court incorporates by reference the June 24, 2015 Order granting

Casar's No-Evidence Motion for Summary Judgment.

1111111111111111111111111111111111111111111111111111111 004133775

52 DC BK15212 PG777

5. Under Texas Election Code§ 221.012(a), the Court DECLARES that the

true outcome of the December 16, 2014 runoff election is that Contestee

Gregorio "Greg" Casar was elected as the Austin City Council District 4

member.

6. Pursuant to Texas Civil Practice and Remedies Code § 10.004( c)(3 ),

Contestee Casar shall recover from Contestant Laura Pressley individually

monetary sanctions in the amount of$ 40,000.00, together with

postjudgment interest from the date of this Amended Final Judgment until

paid at the rate of five percent (5.0%) per annum.

7. Pursuant to Texas Civil Practice and Remedies Code§ 10.004(c)(3),

Contestee Casar shall recover from Contestant's counsel David Rogers

individually monetary sanctions in the amount of$ 50,000.00, together

with postjudgment interest from the date of this Amended Final Judgment

until paid at the rate of five percent (5.0%) per annum.

8. Pursuant to Texas Civil Practice and Remedies Code§§ 10.002 and

10.004, Contestee Casar shall recover from Contestant Laura Pressley and

Contestant's counsel David Rogers jointly and severally his out-of-pocket

expenses in the amount of$7,794.44, together with postjudgment interest

from the date of this Amended Final Judgment until paid at the rate of five

percent (5.0%) per annum.

9. If either Contestant Laura Pressley or Contestant's counsel David Rogers

unsuccessfully appeals this Amended Final Judgment, pursuant to Texas

Civil Practice and Remedies Code§ 10.004(c)(3), Contestee Casar shall

53 DC BK15212 PG778

also recover from Contestant Laura Pressley, if unsuccessful on appeal,

and Contestant's counsel David Rogers, if unsuccessful on appeal,

additional monetary sanctions in the amount of$ 25,000.00, if appealed to

the Court of Appeals; $10,000.00, if a petition for review is filed in the

Supreme Court ofTexas; $15,000.00, if full briefing is requested by the

Supreme Court of Texas; and $15,000.00, if oral argument is granted at

the Supreme Court of Texas. These additional monetary sanctions shall be

imposed jointly and severally on Contestant Laura Pressley and

Contestant's counsel David Rogers, if both are unsuccessful on appeal.

10. Court costs are awarded in favor of Contestee Casar and against

Contestant Laura Pressley, together with post-judgment interest from the

date of this Amended Final Judgment until paid at the rate of five percent

(5.0%) per annum.

11. This order finally disposes of all claims and all parties and is appealable.

12. All relief not expressly granted in this Amended Final Judgment is denied.

IT SO ORDERED. o SIGNED this the . 3 rl( 2:._ day of J _, u Jf I