Election challenge petition filed

Incumbent State Rep. Chuck Hopson's opponent has filed an "election challenge petition" with the Texas Secretary of State's office alleging numerous election irregularities in the Nov. 4 race for the District 11 seat in the House of Representatives.

Brian K. Walker, a Republican who lost to Hopson by 121 votes, filed the challenge on Dec. 15 stating Hopson should be declared ineligible to be seated when the House reconvenes in January. Walker also requests a special election be held or an entirely new election be held only in Cherokee County to fill the seat.

District 11 includes Cherokee, Houston, Panola and Rusk counties. Walker, an attorney, has a Tatum address in Panola County and Hopson, a pharmacist, resides in Jacksonville in Cherokee County.

Filed by attorneys Donna Garcia Davidson and Roger B. Borgelt of the Austin law firm of Potts & Reilly LLP, the petition alleges several irregularities in the original count and subsequent recount of votes. On Friday, Borgelt said the petition, written in the style of a lawsuit, "will be heard by the House of Representatives" and not by a judge. He deferred other questions to Davidson, who was not in her office and did not return the News Herald's phone calls.

The petition contends the number of rejected absentee and provisional ballots from Houston, Rusk and Panola counties totals more than the 121-vote margin of victory.

"Rejected ballots from Cherokee County have still not been provided to (Walker)," according to the document. "Additionally, more than 150 voters district-wide appear to reside outside the county in which they voted."

District 11 has 97 voting precincts, but the majority of the alleged problems were in Hopson's home county, which includes 31 of those precincts. The petition specifically identifies several alleged irregularities with Cherokee's Box 36, noted as "Hopson's home precinct."

Walker's petition contends:

— More than 900 electronic ballots cast in Cherokee County were not properly sealed nor kept in a locked box until Dec. 2 (the date of the recount), in violation of Texas Election Code 66.058, which could have resulted in illegal votes being counted;

— Box 36 was the only precinct in Cherokee County that relied solely on paper ballots because of an alleged malfunction of the voting machine;

— The election judge for Box 36 was not appointed in accordance with Texas Election Code 32.007, which provides for emergency appointments and did not meet the eligibility requirements as provided in Texas Election Code 32.002;

— The election judge for Box 36 claimed a voting machine malfunction but did not report it, as required by Texas Election Code 125.006;

— On Election Day, the election judge for Precinct 36 did not exclude bystanders, per Texas Election Code 61.001;

— Box 36 was the last box in the district to arrive at the courthouse for counting on election night, arriving almost three hours after the polls closed even though the precinct is within 20 minutes' drive time of the courthouse;

— The election judge arrived at the courthouse at 9:45 p.m., leaving a significant period of time unaccounted for although election records should be delivered "immediately after the precinct returns are completed," per Texas Election Code 66.053;

— The election judge allegedly gave two different accounts of the evening's events to explain why she did not arrive "in a timely fashion, and admittedly made stops between the voting location and the Cherokee County Courthouse;"

— Prior to 9:45 p.m. on election night, when Box 36 arrived at the courthouse, Walker was leading the race;

— When Box 36 arrived at the courthouse, witnesses allege it had no padlock to secure its ballots and there were other boxes from the county which were also not padlocked, as required;

— The seals on Box 36 and others were broken after Election Day, allegedly to remove provisional ballots; and

— Software and equipment tests were not conducted prior to the electronic ballot recount in Cherokee County, a violation of Texas Election Code 214.046.

The petition also alleges that during the Cherokee recount, the totals provided to witnesses present on Dec. 2 declared Walker had 6,883 votes, Hopson had 8,963 votes and Libertarian candidate Paul Bryan garnered 262 votes. However, the official canvass later signed by the governor stated the totals were Walker with 7,012 votes, Hopson with 9,008 and Bryan with 256 — a difference of 168 votes — "which calls into question more than enough votes to affect the outcome of the election."

Further, Walker contends Cherokee election officials gave an "inconsistent" explanation regarding the tabulation of recount votes and there was never a complete reconciliation of the ballots to determine whether the number of votes matched the number of votes cast.

The ballot registers provided by Cherokee County — which Walker states are still unavailable for all of the boxes — reveal several precinct judges received paper ballots that cannot be accounted for, per the petition.

For example, "Precinct 25 accounts for only 153 (paper) ballots, yet states 430 ballots were delivered." In Precinct 26, 499 ballots were accounted for but 500 ballots were delivered. In Precinct 38, 200 ballots are accounted for though 700 ballots were received. In all, actions such as these in 12 precincts are challenged.

In addition, 10 precincts did not record the beginning or ending serial numbers of the ballots received, according to the petition.