Land of Confusion

If there was one thing Joe Nixon, the attorney for Republican House hopeful Dan Neil, wants you to know for sure it's that the election challenge in House District 48 is just like what is going on in Egypt. Except he also wants it clear that it is nothing like what is going on in Egypt.

If you're confused, that may be Nixon's intent. The game plan in the suit to remove Democrat Rep. Donna Howard from her seat in western Travis County has switched. He is no longer trying to find enough votes to get Neil declared the winner: Instead, he is arguing that the election is both too close and too confusing to declare a winner either way. So what he wants is a special election.

This came yesterday after after three days of analysis of individual ballots, cross-examination of voters, and partial recounts by Master of Discovery Will Hartnett, R-Dallas. This was not like poking Florida's butterfly ballots for hanging chads: And forget the sanctity of the secret ballot. Travis County residents whose votes were in any way contested were summonsed and cross-examined in surprising detail about what they did on Nov. 2 last year.

The lines of questioning some times took a turn into the surreal. To establish the eligibility of one old lady, Nixon asked about her pets. It seemed that she and her daughter had bought a house in Pflugerville to flip, and she had been spending her time between the two residences. Nixon asked about where her clothes are, how much food she has in her cabinets, and finally where her dog lives. Cue Nixon's "If the glove don't fit, you must acquit" moment: An old lady will always keep her dog close at hand, so wherever the dog sleeps must be her real home.

Nixon's strategy was simple: Imply incompetence and mismanagement of the process by the Travis County Elections Division, add in complicated, potentially contradictory rulings from the secretary of state, and then argue that there were too many ballots with question marks over them. Then he went for his big push: Aside from the lack of molotov cocktails and stones being thrown, this was just like the pro-democracy protests in Egypt. If the state didn't take this seriously, then Texas would end up collapsing like Ancient Greece.

When it was time for Howard's attorney Buck Wood to close his argument, he took a very different (and much shorter) tack. Nixon's prose got very purple because, well, he'd crawled out to the end of a branch and had been busy sawing it off behind him – legally speaking. The 1,900 suspected felons that the Neil campaign initially claimed had voted illegally? Never happened. The military voters that were disenfranchised? Again, never happened. That's why they were never mentioned in the hearing.

Whether Howard's margin of victory was one vote, 12 or 18 made no difference. Wood said that Neil should recognize what was happening from his time as a Denver Bronco. "At the end of the game," he said, "if somebody got 23 points and the other one has 24 points, the person with 23 points loses."

Now it's up to Hartnett to make the rulings on what ballots do and do not count. So whatever final numbers for Howard's win the lawyers propose (Nixon suggested three, Wood argues for six or seven) it's all abstract until he releases his final report to the nine-member House panel. Current ETA: Friday, but he is still waiting on post-hearing briefs from both parties.

Throughout the process, Hartnett has proved that he's a fairly mean poker player. Last week, Wood said he agreed with the popular vision of the master of discovery as a strict proceduralist. Hartnett's campaign website describes him as "a work horse, not a show horse [and] one of the brightest, hardest working and least partisan members of the Texas Legislature." During the second hour of Nixon's closing presentation, while the press corps was scratching their heads over Nixon's math, he retained a sphinx-like semi-smile.

There are three minor points of schadenfreude to be noted here.

One, that the Texas Republican Party – which has long railed against the Democrats' links to trial attorneys – is quite happy to take an election loss to trial.

Two, that the same party that rails so much for the sanctity of the ballot process is basing its legal challenge around electoral ambiguity.

Three, that a time when they are calling voter ID a palliative for all ills of the electoral system, they have shown how weird and complicated the nuanced life of the average voter makes the process.