David Rogers v. Gregorio "Greg" Casar

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

IN THE THIRD COURT OF APPEALS OF TEXAS

DAVID A. ROGERS,

Appellant

v.

GREGORIO “GREG” CASAR,

Appellee

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

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

4

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

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)

(last visited 1-29-2014).

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

election.

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

by Mail ballots.

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.

Respectfully submitted,

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

Respectfully Submitted,

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

4

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

PLANET DEPOS

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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

PLANET DEPOS

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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

PLANET DEPOS

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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:

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.

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

information and material described in Rule 194.2.

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,

2014.

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

victor.

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

Texas Elections Code, Section 232.006.

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.

Statistical Improbabilities

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-

2014).

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

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