Don Harrison v. Leroy Stanley

Opinion issued May 10, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-01065-CV

DONALD HARRISON, Appellant

V.

LEROY STANLEY, Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2005-45756

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.