Don Harrison v. Leroy Stanley

Opinion issued March 9, 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

O P I N I O N

Appellee, Leroy Stanley, filed an election contest against appellant, Donald

Harrison, after an exceedingly close final vote tally in a runoff election for a

Pasadena City Council position. The trial court refused appellant’s request to include

in the final tally three ballots in his favor that had been excluded by the Early Voting

Ballot Board. Appellant filed this expeditedissues on appeal. Appellant contends that are (1) that the Early Voting Ballot Board acted improperly in comparing the relevant signatures;and (2) that the trial

court erred in excluding the ballots at issue. For the reasons that follow, we affirm.

BACKGROUND

On May 7, 2005, an election pitting appellant against appellee was held for a

seat on the Pasadena City Council; it resulted in a tie, which necessitatinged a run-off election.

The run-off election was almost as close: 591 votes were tallied for appellant, 590 for

appellee. During the course of the ballot counting, the Early Voting Ballot Board

(“Board”) excluded three ballots from consideration because the signatures on the

carrier envelopes and mail-in ballot applications did not match, as required by the

Election Code.

Appellee filed an election contest, and, after discovery, the parties

stipulated that two of appellant’s votes were impermissibly counted because one voter

lived outside the geographic boundary of the district in question and the others voter’s

registration status had not become effective until after the run-off election. This

placed appellee ahead by one vote, 590 to 589.

After appellee rested his case, Aappellant introduced the applications for ballot

by mail and carrier envelopes of three voters—Donald Howard, Angel Marino, and

Gary Gray—who had voted for him.. The trial court heard testimony from each of the

three voters and, via their depositions, from the four Board members. The Board

memberswho had testified that they found, as to appellant’s three proffered voters, that the

signatures on the applications for ballots by mail were not made by the same person

who signed the carrier envelopes, thereby violating election law statutes. The trial

court agreed, finding that the relevant signatures did not match. agreed. The trial court further

found that “assistance,” as defined in the Texas Election Code, had been given to

each of the proffered voters, in contravention of same.

The court also found that

none of the three proffered voters had a physical disability such that they could not

write or see.

After the trial court declined to addthe mail-in ballotsto appellants vote total, filed this expedited appeal contendingthat the trial court abused its discretion in failing to count the three mail-in ballots.

DISCUSSION

The standard of review for an appeal from a judgment in an election contest is

whether the trial court abused its discretion. Tiller v. Martinez , 974 S.W.2d 769, 772

(Tex. App.—San Antonio 1998, pet. dism’d w.o.j.). To overturn an election, the

contestant must show that the outcome, as shown by the final canvass, is not the true

outcome, either because illegal votes were counted, or because an election official

prevented eligible voters from voting, failed to count legal votes, or engaged in other

fraud or illegal conduct or made a mistake. See Tex. Elec. Code Ann . § 221.003

(Vernon 2003).

The contestant has the burden to make this showing by clear and

convincing evidence. Alvarez v. Espinoza , 844 S.W.2d 238, 242 (Tex. App.—San

Antonio 1992, writ dism’d w.o.j.). The law presumes that the Ballot Board acted

properly in rejecting and accepting ballots; to overcome this presumption, a

challenger must show by clear and convincing evidence that the board erred. Id . at

244.

“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.” Reese

v. Duncan , 80 S.W.3d 650, 661 (Tex. App.—Dallas 2002) (“We do not determine the

credibility of any witness or substitute our judgment for that of the trial court.”); See > see

also Alvarez , 844 S.W.2d at 245cf. > Tiller, 974 S.W.2d at 777 (applying the standardof review in a case in which the trial court found the election judge improperlyrejected the ballots) See > Tiller, 974 S.W.2d at 777 .

Appellate review for abuse of discretion on the issue of signature discrepancynecessarily requires independent review and comparison of each signature on theapplication ballots and carrier envelope certificates to determine whether thechallenged sets of signatures are so different to compel the conclusion that differentpersons signed them. Tiller, 974 S.W.2d at 777 . However, the reviewing courtshould not determine the credibility of any witness or substitute itsjudgment for thatof the trier of fact. Id. Election Code Requirements & Ballot Board

Appellant’s first contendsargument is that the Ballot Board incorrectly rejected the three

ballots at issue because it impermissiblycreated an ultra vires requiredmen that the signatures on the ballot

envelope and mail-in application match—a requirement, he argues, not compelled by

the Election Code.

To be entitled to vote an early voting ballot by mail, the application must be

signed by the eligible voter. Tex. Elec. Code Ann . § 84.001(b) (Vernon 2003). A

witness may sign for the voter if the voter cannot sign due to a physical disability or

illiteracy. Id . § 1.011(a). A person who fails to comply with section 84.001 of the

Election Code is not entitled to receive an early voting ballot by mail. Id . § 84.001(f).

A voter is required to sign the certificate on the carrier envelope after it is sealed. Id .

§ 86.005(c). After the early voting clerk delivers the early voting ballots by mail to

the Ballot Board, the Board may accept a ballot, among other requirements, if neither

the voter’s signature on the application nor the signature on the carrier envelope is

“determined to have been executed by a person other than the voter, unless signed by

a witness.” Id . § 87.041(b)(2). If the Ballot Board rejects a ballot, it shall enter

‘rejected’ on the carrier envelope. Id . § 87.041(d).

As support, appellant points us toward the text of sSection 87.041(b)(2) of the Election Code provides:

(b) A ballot may be accepted only if:

. . .

(2) neither the voter’s signature on the ballot application nor the

signature on the carrier envelope certificate is determined to have been

executed by a person other than the voter, unless signed by a witness.

I d . § 87.041(b)(2). Clearly, what the Ballot Board is required to do is ensure that the

same voter signed both the ballot application and carrier envelope. In order to ensure

such,To help interpret thisrequirement appellant then cites to section 87.041(e) provides:

(e) In making the determination under Subsection (b)(2), the board may

also compare the signatures with the signature on the voter'’s registration

application to confirm that the signatures match but may not use the

registration application signature to determine that the signatures do not

match.

Id . at § 87.041(e).

Appellant parses the statutory language to require only that both signatures be

that of the voter, not that the signatures are required to match. Moreover, or so his

argument goes, if, as according to sub-section (e), the Ballot Board may not use “the

registration application signature to determine that the signatures do not match,” why

should “the mail–in application and ballot [carrier] envelope signatures be use [ sic ]

to invalidate each other?” Appellants argument is not unpersuasive; there is noexplicit requirement that the signatures match, and sub-section (e) does seem, at firstblush, to support his statutory interpretation.However, while we agree that the statute is inartfully worded, appellantsargument proves too much. We do not see how the Ballot Board members couldmake the determination that the signatures on the carrier envelope and ballotapplication do not match if they are precluded from using each as a point ofcomparison against the other. Appellant has no answer for this.

Furthermore, However, appellant’s argument does not square with election law

jurisprudence of our state. other courts of appeals have found tha Several courts of appeals have held that the Election Code

does give the Ballot Board the authority to compare the signatures on the carrier

envelope and ballot application to determine if they are sufficiently similar so as to

compel the conclusion that they were made by the same person. In Reese , the court

held:

The contestant must overcome the presumption that the early voting

ballot board or signature-verification committee acted properly in

rejecting or accepting ballots. The contestant must show that the board

erred. In determining whether there is a signature discrepancy involving

an early voting ballot, the trial court may hear testimony from the voter

or other witnesses on the similarity of the signatures and may compare

the signatures to refute the signature verification committee’s decision.

Having reviewed and compared each pair of challenged signatures

in the trial court’s finding of fact number twenty-three, we conclude

none of the pairs of signatures are similar enough to compel the

conclusion that the voter signed the ballot application or carrier

envelope or both, or to override the trial court’s finding that either the

ballot application or the carrier envelope or both were not signed by the

voter.

80 S.W.3d at 661–62 (internal citations omitted); see also Alvarez , 844 S.W.2d at 245

(“The law places the burden on those who vote early by mail to sign both the

application and the envelope with signatures that match. The Early Voting Ballot

Board must act on the basis of the signatures before it.”). We agree with our sister courts pragmatic interpretation of this sectionof the Election Code and Therefore, the Ballot Board

acted in accordance with both statutory and case law in rejecting the ballots. We hold

that the Ballot Board acted properly in comparing the signatures on the application

and carrier envelope to determine whether they were signed by the same person.Accordingly, we overrule appellants first point of error.

The Trial Court’s Rejection of the Ballots

Appellant’s other argument nextasserts that the trial court erred in rejecting the

mail-in ballot applications of Donald Howard, Angel Marino, and Gary Gray. We

analyze each ballot separately.

The Howard Ballot

Appellant argues that because Howard testified thatboth the signatures on both the

carrier envelope and ballot application were his, the trial court erred in rejecting his

ballot. While we may agree with appellant that the two signatures appearSpecifically, appellant argues here that the trial court erred because it relied

on the Ballot Board’s decision that the relevant signatures did not match—and repeats

his argument that the correct standard is whether the signatures were made by the

same person. However, because we held above that it was not error for the Ballot

Board, nor, by extension of that same reasoning, the trial court, to compare the

signatures, what is left of appellant’s argument consists of asking us to substitute our

judgment for that of the trial court. We decline to do that.

First, it is clear from our review of the signatures that they are not sufficiently

similar to compel the conclusion that the voter signed both the carrier envelope and

the ballot application. One signature evinces the hand of one who does not have great

control over the writing instrument, while the other looks to be the signature of a

person with normal motor control. Moreover, the trial court was entitled to believe

all, part, or none of the testimony that it heard from Howard. See Munters Corp. v.

Swissco-Young Indus., Inc. , 100 S.W.3d 292, 299 (Tex. 2002) (holding that trial court

entitled to believe all, part, or none of evidence adduced). Therefore, we hold that the

trial court did not abuse its discretion in rejecting Howard’s ballot. Tiller , 974

S.W.2d at 777 .

sufficiently similar to passa normal level of scrutiny, the issue of voter assistance is dispositive insofar asHowards ballot is concerned. Howard testified that he wassitting in his garage whenappellant visited him. Howard testified that appellant showed [me] how to [fill outthe ballot application]. Specifically, appellant showed Howard where to sign it andhow to fill it out and so on. Section 64.0321 of the Election Code reads:

For purposes of this subchapter and Sections 85.035 and 86.010,assisting a voter includes the following conduct by a person other thanthe voter that occurs while the person is in the presence of the voter'sballot or carrier envelope:

(1) reading the ballot to the voter;(2) directing the voter to read the ballot;(3) marking the voter's ballot; or(4) directing the voter to mark the ballot.

Tex. Elec. Code Ann. 64.0321 (Vernon 2005). Appellants argument is simply thatthe conduct described above by Howard falls short of the statutory definition ofassistance. Appellant, for what it is worth, is right when he says that Howard did nottestify that appellant explicitly read him the ballot. However, implicit in the actsof showing one how to fill out a ballot application and showing one where to signit and how to fill it out and so on6 is some form of communication that falls withinthe statutory definition of reading the ballot to the voter. Id. Therefore, we holdthat because appellant was not eligible for voter assistance under section 64.031 oftheElection Code7 and received such, the trial court correctly excluded Howards ballotas illegal. The Marino Ballot

Angel Marino admitted that his two signatures did not match. However, he

testified that he printed his name on the carrier envelope—because he thought this

was the proper protocol—but penned his usual signature on the ballot application.

We can fault neither the Ballot Board nor the trial court for concluding that the

signatures do not match—they clearly do not (appellant admits as much), and they

certainly do not compel the conclusion that they are sufficiently similar such that they

were made by the same person. independentBecause, by extension of that same reasoning,,,Therefore, because our review of the signatures

mirrors that of the Ballot Board’s and the trial court’s, what is left of we hold that the trial court did

not abuse its discretion in rejecting Marino’s ballot. Id .

The Gray Ballot

Gray’s ballot differs in the material sense in that, according to his testimony,

his wife signed his ballot application and he signed the carrier envelope. Appellant

argues that when certain sections of the Election Code are read together they support

a spousal exception to the statutory requirement that the signatures be made by the

same person.

Section 84.003 of the Election Code provides:

(a) An early voting ballot application signed for the applicant by a

witness other than the early voting clerk or a deputy must indicate the

witness's relationship to the applicant or, if unrelated, indicate that fact.

(b) A person who acts as a witness for an applicant for an early voting

ballot application commits an offense if the person knowingly fails to

comply with Section 1.011.

A person who in the presence of the

applicant otherwise assists an applicant in completing an early voting

ballot application commits an offense if the person knowingly fails to

comply with Section 1.011(d) in the same manner as a witness.

(c) An offense under this section is a Class A misdemeanor.

(d) Subsection (b) does not apply if the person is related to the applicant

within the second degree by affinity or the third degree by

consanguinity, as determined under Subchapter B, Chapter 573,

Government Code, or is registered to vote at the same address as the

applicant.

Tex. Elec. Code Ann. § 84.003 (Vernon Supp. 2005) (emphasis added). Appellant

asserts, correctly, that when one person signs a voter’s ballot application in such a

manner that it does not conform with section 1.011, section 84.003(d) creates

statutory immunity for a person related to the voter within the prescribed degrees of

consanguinity or affinity. See id . at § 84.003(d). However, this does not, as appellant

would have it, “support the argument that husbands and wives, residing together, can

sign ballot applications for each other.”

Section 84.003(d) of the statute only prevents a misdemeanor prosecution of

a relative who knowingly fails to comply with the Election Code. It does not speak

to the requirement delineated in section 84.003(a) that a person signing a ballot

application must indicate that person’s relationship to the voter. The trial court did not

abuse its discretion in excluding Gray’s ballot.

We conclude that the trial court acted properly in excluding the ballots

proffered by appellant and overrule appellant’s second point of error.

CONCLUSION

The decision of the trial court is affirmed in all respects.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.