Don Harrison v. Leroy Stanley

Opinion

Opinion issued May 10, 2006

In The

Court of Appeals

For The

First District of Texas

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NO. 01-05-01065-CV

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DONALD HARRISON, Appellant

V.

LEROY STANLEY, Appellee

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On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2005-45756

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OPINION DISSENTING FROM THE DENIAL

OF EN BANC CONSIDERATION

          The panel, in its opinion, errs in holding that the trial court did not abuse its discretion in rejecting the ballots of two of the voters in question in this election contest case on the grounds that the signatures on the envelopes containing their mail-in ballots did not match the signatures on their mail-in ballot applications. Moreover, the panel’s misapplication of law effectively nullifies the legal votes of the two voters, disenfranchises them from the voting process, and denies them the safeguard of the Equal Protection Clause of the Fourteenth Amendment. Accordingly, I respectfully dissent from the denial of en banc consideration of this case.

          In his sole issue, appellant, Donald Harrison, argues that the trial court abused its discretion in deciding this election contest case in favor of appellee, Leroy Stanley, because the trial court erroneously rejected three crucial votes in favor of Harrison on the grounds that (1) the signatures on the envelopes containing the mail-in ballots in question did not match the signatures on the three voters’ mail-in ballot applications and (2) the three voters received “undisclosed assistance” in completing their mail-in ballots.

          In its opinion, the panel noted that

To determine whether the trial court abused its discretion, we must review and compare each signature on the early voting ballot applications and carrier envelopes the trial court found to be non-genuine to ascertain whether the signatures are similar enough (i) to compel the conclusion that the same person signed them, or (ii) to override the trial court’s conclusion that the same person did not sign them.

Harrison v. Stanley, No. 01-05-01065-CV, slip op. at __ , (Tex. App.—Houston [1st Dist.] April 27, 2006, no pet. h.) (quoting Reese v. Duncan, 80 S.W.3d 650, 661 (Tex. App.—Dallas 2002, pet. denied)). The panel holds that “the [Early Voting] Ballot Board acted properly in comparing the signatures on the application and carrier envelope to determine whether they were signed by the same person.” Then, the panel, after its own analysis of the signatures in question, further holds that the trial court did not abuse its discretion in rejecting the ballots of the three voters, Donald Howard, Angel Marino, and Gary Gray. In reaching its holding as to Howard, the panel notes that “the trial court was entitled to believe all, part, or none” of his testimony. See Munters Corp. v. Swissco-Young Indus., Inc., 100 S.W.3d 292, 299 (Tex. App.—Houston [1st Dist.] 2002, pet. dism’d). The panel does not address Harrison’s second argument.

          In his Motion for En Banc Consideration, Harrison notes that “the panel made an error similar to that made by the trial court in focusing on something that was never an issue in the case.” He notes that “[w]hether the signatures matched was never the issue” and

No one in the case, least of all Appellant, questioned the Ballot Board’s authority, its competence, or its discretion in making that determination. The panel stated that Ballot Boards have the authority to match signatures, then stated it was not error to do so and ruled for Appellee. The only point the Appellant tried to make about the Ballot Board was that its decision could not be dispositive since its legitimate function (comparing signatures) is not the ultimate statutory standard in an election contest (i.e. finding out factually whether the signatures were from the same person—a trial court function). When the trial court (and the panel of this court) looked only at whether the Ballot Board had a basis for saying the signatures did not match, it failed to conduct the statutory inquiry of whether the signatures, matching or not, were in fact those of the voter.

          In Texas, “statutory enactments concerning elections must be strictly enforced to prevent fraud, [but] they must also be liberally construed in order to ascertain and effectuate the will of the voters.” Little v. Alto Ind. Sch. Dist., 513 S.W.2d 886, 891 (Tex. Civ. App.—Tyler 1974, writ dism’d). In fact, the sole purpose of an election contest is to determine the true outcome of an election. 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 an 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.

Tex. Elec. Code Ann. § 221.003(a) (Vernon 2003) (emphasis added). An “illegal vote” is a vote that “is not legally countable.” Tex. Elec. Code Ann. § 221.003(b) (Vernon 2003).

          Here, Harrison alleges that the Early Voting Ballot Board made a mistake in failing to count the legal votes of Howard, Marino, and Gray. There is no allegation and no evidence that any of these duly registered voters engaged in any type of voter fraud.

          The trial court simply found that the Early Voting Ballot Board decisions to reject the mail-in ballots of Howard, Marino, and Gray, “based on the finding that the signatures on the applications did not match their respective signatures on the carrier envelopes were correct and properly within their discretion in all respects.” The trial court ruled that the “result of that decision is that the rejection of those mail-in ballots is sustained and not overturned and those votes continue not to be counted in favor of the contestee, Harrison.” However, even assuming, as the trial court concluded, that the Early Voting Ballot Board did not abuse its discretion in initially rejecting the mail-in ballots of Howard, Marino, and Gray, this does not mean that their votes were “illegal” and not to be counted in the subsequent election contest.

          As noted by the panel, the law presumes that an Early Voting Ballot Board acts properly in rejecting and accepting ballots. Reese, 80 S.W.3d at 661. However, an election contest challenger may overcome this presumption with evidence that the board made a mistake. Id. To overcome the presumption in this case, Harrison presented to the trial court the testimony of Howard, Marino, and Gray. Howard testified that the signatures on both the pertinent carrier envelope and the pertinent ballot application were in fact his. Marino testified that the signature on the pertinent ballot application was in fact his and that he “printed” his name on the pertinent carrier envelope. Gray testified that he signed the pertinent carrier envelope, but that his wife signed the pertinent ballot application for him. All three further testified that they voted for Harrison.

          Thus, in regard to Howard and Marino, Harrison presented conclusive evidence that the Early Voting Ballot Board made a mistake in initially rejecting their ballots and votes for Harrison. To the extent that the panel relies on Reese in concluding otherwise, the panel’s reliance is misplaced. In Reese, the election challenger did not present the testimony of the voters whose ballots had been rejected by the ballot board. 80 S.W.3d at 661. As noted by the Reese court, “Reese could have refuted Duncan’s evidence by presenting controverting evidence showing that the signatures were genuine, but she did not.” Id. at 662 (emphasis added). Here, both Howard and Marino testified that their hand writings were in fact genuine.

          Although it is generally true that a fact finder is free to believe all, part, or none of the testimony of a witness, the Texas Supreme Court has noted that a fact finder’s “decisions regarding credibility must be reasonable.” City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005). As explained by the court, fact finders “cannot ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.” Id.           Here, the trial court was not free to disbelieve the testimony of Howard and Marino that their hand writings on the pertinent ballot applications and carrier envelopes were genuine. Accordingly, the panel’s holding that the trial court did not abuse its discretion in rejecting the ballots of Howard and Marino on the grounds that the signatures on the envelopes containing their mail-in ballots did not match the signatures on their mail-in ballot applications is in error, and this court should address Harrison’s second argument.

          Moreover, the panel’s misapplication of law in this election contest case effectively nullifies the legal votes of Howard and Marino, disenfranchises them from the voting process, and denies them the safeguard of the Equal Protection Clause of the Fourteenth Amendment. See Bush v. Gore, 531 U.S. 98, 104–05, 121 S. Ct. 525, 530 (2000) (“State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”). Accordingly, en banc consideration in this extraordinary circumstance is required. Tex. R. App. P. 41.2(c).

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Nuchia, Keyes, and Hanks. 

Justice Jennings, dissenting from the denial of en banc consideration.