Officials with the Democratic Party of Texas have filed a complaint against the Harris County voter registrar over the counting of provisional ballots that they believe could sway the final outcome of several close judicial races.
U.S. District Judge Gray Miller of the Southern District of Texas is scheduled to hear the complaint Wednesday against Paul Bettencourt, the Republican voter registrar of Harris County.
Democrats allege that Bettencourt illegally delayed the verification of 7,000 provisional ballots. Party officials filed a lawsuit against Bettencourt and a motion for a restraining order on Nov. 10.
"Plaintiffs have been concerned the Defendant has not been complying with election laws and is unlawfully refusing to register thousands of voters," the complaint states.
The provisional ballots were cast by voters whose names were not properly listed on voter rolls but who signed affidavits that they had properly registered. There are also a few hundred mail in ballots sent by overseas voters that could be counted.
The Houston Chronicle reported that the mailed ballots generally favor Republican candidates while the provisional ballots are expected to favor Democratic candidates, according to several political experts.
At the time of the filing of the suit, 6,950 provisional ballots and approximately 1,000 mail-in ballots remain uncounted in the Harris County 2008 General Election.
Bettencourt's voter registration staff has been checking those provisional ballots against records and reported on each one to a ballot board, whose members are appointed by political parties.
Technically, the board decides which votes will be added to the totals before the election results are made official by Commissioners Court, which is scheduled to accept the results Monday, the Chronicle reported.
But, the Democratic officials said in the lawsuit, Bettencourt is providing incorrect information to the board, delaying the counting, refusing to let in observers and has illegally denied voter registrations.
"The Defendant has only processed 2,439 provisional ballots as of this writing," the motion for injunction states. "As a result, 4,511 provisional ballots can not be considered by the Early Vote Ballot Board because they are being held up by the Defendant."
"Because of the Defendant's failure to comply with law, Provisional Ballots are in danger of not being counted before a state statutory deadline Ã¯Â¿Â½ seven days from Election Day.
"Furthermore, many of the ballots are in danger of not being counted because the voter registration information reported by Defendant Bettencourt to the Ballot Board is incorrect."
The plaintiffs claim the failure to comply with the deadline could affect who prevails in certain races.
"For example, Plaintiff Goodwille Pierre is the 2008 Democratic Nominee for the 333rd State District Court. The unofficial results reported to date reveal Plaintiff Pierre is the loser by 595 votes," the motions states. "It is foreseeable that failing to count the provisional ballots could prevent an accurate election result."
The Chronicle mentions another civil court race in which Republican Judge Elizabeth Ray trailed Democratic challenger Josefina Muniz Rendon by fewer than 200 votes.
The complaint alleges that Bettencourt is "selectively reviewing" the affidavits attached to the Provisional Ballots.
"It has been observed, in the short time Poll Watchers were permitted, that the Defendant's staff was rejecting Provisional Ballots cast by voters who report a commercial address, in violation of law," the motion states.
Plaintiffs seek to enjoin and order that the Bettencourt process voter registration information for the provisional ballots in time for the Ballot Board to complete its work by the state statutory deadline Wednesday.
Chad W. Dunn of Brazil & Dunn in Houston is attorney in charge for the plaintiffs.
Case No. 4:08-cv-03332