The Definition of Voter Eligibility

Could Dan Neil challenge the HD48 result?

Travis County Clerk Dana DeBeauvoir on GOP claims:
Travis County Clerk Dana DeBeauvoir on GOP claims: "It's not a fair statement and it's not correct." (Photo by John Anderson)

Last week, Rep. Donna Howard, D-Austin, held her seat in a recount by 12 votes over challenger Dan Neil. However, there's muttering that Neil could challenge that seemingly final result. Is it possible that the GOP can boost their 99 seat majority to a 100 seat super-majority?

Theoretically, yes: Realistically, no.

Q: OK, so what's that all about?

A: This is about absentee ballots. Here's how this works: There are two types of postal ballot. Firstly, there's early voting by mail, and to get one of those ballots, you have to be either:

  • 65 years of age or older
  • Out of the county during the entire election
  • Sick or disabled
  • Confined in jail, but eligible to vote.

Then there are federal post card applications. To get one of those, you have to be:

  • Member of the armed services or a merchant marine on active duty or an eligible spouse or dependent.
  • A US citizen living outside of the US temporarily
  • A US citizen living outside of the US indefinitely

Now here's where this gets complex. We spoke to the Travis County Elections Division, and they explained that "temporarily" is for people outside of the country for a short period, like students studying overseas or working with the Peace Corps. "Indefinitely" is meant for ex-pats, or anyone unsure if/when they will be returning.

Q: So what's the difference?

A: If you tick the "temporarily" box, then you get to vote in all the races. However, if you tick "indefinitely" you're only eligible to vote in Federal races. Since you're not really resident in the state, you don't get to vote in the state house races.

Q: That seems pretty straight forward: What's the issue?

A: Let's leave that to Neil's campaign to explain. As the recount was coming to a close on Dec. 2, they put out this statement:

From day one of this process, my stated goal has been to ensure every vote is counted. Today we have learned that dozens of overseas ballots, many of which were likely cast by military personnel, were not fully counted by the election clerk, including numerous ballots where overseas voters voted straight Republican.

It appears that election officials made a mistake in sending improperly marked ballots to overseas voters – ballots that gave those voters the option to vote straight ticket, and that included various federal, state and local races. The Travis County Clerk's office then filled out new ballots on behalf of overseas voters when the ballots were received, eliminating all races except those that were federal in nature.

A mistake made by election officials should not disqualify clear voter intent. The fact is that overseas voters who voted straight Republican clearly intended to vote for Republican candidates up and down their ballot, including the race for state representative in District 48. Those races were on the ballot they filled out. We will continue to fight for every vote that should be counted.

Q: So is this about denying military voters their right to vote?

A: No. Capital N. Capital O. We called Travis County Clerk Dana DeBeauvoir and she said, "It's not a fair statement and it's not correct." It seems that the Neil campaign got confused about those "indefinitely" voters, who are a different group to the military voters anyway. DeBeauvoir said, "When we left the recount, it was all straightened out."

Q: What does the county say happened?

A: The Travis County Elections Division told us that when voters mark the "indefinitely" box on their application, the county sends ballots where the non-federal races are marked ineligible. However, some voters went in and filled in some other boxes as well, or voted straight ticket. What the Neil camp seemed to be proposing is ignoring the law and letting their "clear voter intent" take precedence.

Q: So there's a Republican saying that eligibility doesn't matter, it's voter intent that counts?

A: The irony is not lost.

Q: So what happens next?

A: Probably nothing. However, both sides have retained attorneys and Neil could theoretically appeal to the Legislature.

Q: Wait, what? How does that work?

A: We spoke to Buck Wood, Howard's attorney, and he explained that the appeal, if filed and accepted, would go to a committee within the House. They would then have to examine the ballots and what was included. They would make their ruling, and it would go before the full House for ratification.

Q: But isn't the House run by 99 Republicans? Wouldn't they just hand it straight over to Neil?

A: Again, the magic eight ball says no. "The most they can do is to allow him a new election," said Wood, and since a special election would be even more likely to go Howard's way, that would actually favor the Democratic incumbent. What the committee would more likely rule on would simply be whether the ballots were correctly counted. Since those voters living outside of the US indefinitely were never eligible to vote in the House race anyway, adding them in to the totals would be illegal. Even if Neil were successful in that, Wood said, since that would also add straight ticket Democratic voters into the mix, "Donna Howard would win by 20 votes."

Q. So is the race all over then?

A: Almost. The Secretary of State's office still has to canvass the recount result and we're still waiting on them to confirm when that will happen. DeBeauvoir told us, "They have not said, and we would love to know."

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Elections, Election 2010, Dan Neil, Donna Howard, Travis County, Travis County Elections Division, House District 48, HD48, Buck Wood

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