It was “unknown unknowns” vs. “shoulda, woulda, coulda” as the evidentiary hearing in the House District 48 race wrapped up Monday, Feb. 7. Now Master of Discovery Rep. Will Hartnett, R-Dallas, must judge whether Rep. Donna Howard, D-Austin, should keep her seat or whether challenger Dan Neil should be granted a special election. His initial findings are expected to be released to the House on Friday.

In his closing statement, Neil’s attorney Joe Nixon invoked ancient Greece, modern-day Egypt, and Benjamin Franklin, and argued that the four days of laborious examination of ballots and the voters who cast them was not about his client. Rather, Nixon said, it was about protecting the democratic process. It was clear that, no matter his calculations, Nixon could not eliminate enough votes for Howard to give Neil the win. After every possible deduction, he argued that her Election Day victory of 16 votes, which shrank to 12 in the December 2010 recount, currently stands at three votes. However, because of what he claimed were unresolved questions about a handful of ballots from residents who may now have left the district, Nixon said, “You cannot discern a victory.” To be fair to democracy, Nixon said, he’s requesting a special election.

Howard’s attorney Buck Wood fired back that Nixon’s argument was long on rhetoric but short on legal precedent. Wood summed up the line of attack as “I want to pick which votes I want thrown out, and I want to pick which votes I want to be allowed to count.” The high scrutiny of individual ballots may have cut Howard’s victory margin to six or seven, he said later, but it was still a clear victory.

History is against Neil: Since 1979, when the House last revised the rules, every challenge except one has either been thrown out by lawmakers or withdrawn by the contestant. However, Neil’s call for a special election does have a precedent. In 1981, San Antonio Democrat Al Brown challenged his loss to Republican Alan Schoolcraft and hired Wood as his attorney. “It didn’t do me a lot of good,” Wood said. “I got my client a new election, and a very close election turned into a rout.”

This article appears in February 11 • 2011.

A note to readers: Bold and uncensored, The Austin Chronicle has been Austin’s independent news source for over 40 years, expressing the community’s political and environmental concerns and supporting its active cultural scene. Now more than ever, we need your support to continue supplying Austin with independent, free press. If real news is important to you, please consider making a donation of $5, $10 or whatever you can afford, to help keep our journalism on stands.

SUPPORT US

The Chronicle's first Culture Desk editor, Richard has reported on Austin's growing film production and appreciation scene for over a decade. A graduate of the universities of York, Stirling, and UT-Austin, a Rotten Tomatoes certified critic, and eight-time Best of Austin winner, he's currently at work on two books and a play.