PETITION INITIATING ELECTION CONTEST

CAUSE NO.                                         

PETITION INITIATING ELECTION CONTEST

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now, the Petitioner DEMONDRE MONTGOMERY pro se, and files this Petition to challenge and/or contest the Precinct 3 Constable primary election, and alleges following:

Background

1. The Petitioner DEMONDRE MONTGOMERY of address [ENTER ADDRESS] is a contester in the Precinct 3 Constable election.
   1. The Respondent HENRY CURRY of address [ENTER ADDRESS] is also a contester in the aforesaid race. 
   1. The Petitioner asserts that there are many discrepancies and irregularities that have impeded the integrity of the race, and that therefore, the race must be considered void and placed on the democratic run off ballot

Factual Background

• The Petitioner and the Respondent are contesters in the Democratic party, in the primaries for the Precinct 3 Constable election.
  • The said primaries took place on or about March 1, 2022.
  • The Petitioner got an assurance from the election administrator that he would be getting with the ballot board to ensure that everything was done correctly regarding voters coming in to verify their identity. The administrator also stated that he would ensure that all provisional ballots have the required affidavit attached and that voters are actually registered to vote and/or eligible to vote in each particular precinct.
  • Intending to ensure accuracy in the elections, the Petitioner requested whether a recount of the early votes by mail and the provisional ballots could be done. Petitioner avers that this would limit the scope of the recount to the necessary areas of concern.
  • In response, the Petitioner was informed that he would have to put down a deposit for a total recount due to the fact that if there is a miscalculation in the Petitioner’s favor, then those particular votes would not change the outcome unless a recount of the entire race was conducted.
  • However, the administrator seems to hesitate to allow for the inspection of provisional ballots where the race was decided.
  • After the election, when unofficial votes were posted, the Petitioner closed a 600 vote gap with Election Day votes. Accordingly, the Petitioner led by 30 votes. Further, during the reconciliation process, more mail in ballots were counted and added to the unofficial count, which put both Petitioner and Respondent at a “TIE”.
  • The elections department then added 39 provisional ballots to the final vote, which action put the opposing candidate ahead by one vote. The Petitioner avers that if the provisional ballots were not properly cured and votes counted, the foregoing should not have happened.
  • Unfortunately, the administrator has presented inconsistent and unclear statements on the aforesaid concerns.
  • It is worth noting that the race for the Justice of the Peace (“JP Race”) shows the total votes for EVMail as 1525. Further, the JP race has showed higher voter turnout on the ballot than for the Constable race for the same district.  This may be explained by the concept of “under-votes” where voters typically stop voting in races further down the ballot due to voter fatigue.
  • However, the Constable race shows the total votes for EVMail as 1551. Further, it is notable that in this race, and only this race, the Constable has 26 more EV Mail ballots cast in its race than the JP race for the same district which is higher on the ballot. Accordingly, as a result of this discrepancy and/or error, the Petitioner is behind with 61 Votes. Besides, the JP race has less mail ballots than Constable by 26 votes. Therefore, if the vote discrepancy of 26 EVMail ballots is removed, the Petitioner is behind by 35 votes, which is within the margin of error for provisional ballots at 39.
  • Further, there was no notice regarding the provisional ballot count and the cure process, as required by law. The provisional ballots were also not shown after order by the judge. I was also never given the required deposit amounts for a recount after asking several times.
  • Interestingly, the elections administrator stated his office messed up regarding counting the ballots and that there is a margin of error in the results although by law he is unable to do an automatic recount.
  • Petitioner therefore files this Petition to contest the said primaries on the aforesaid grounds.

Venue

3.1         Venue is mandatory in Dallas County under Tex. Civ. Prac. & Rem. Code § 15.002(a)(1) because Dallas County, Texas is the county in which all of the events or omissions giving rise to this action occurred.

Applicable Law

• Public inspection of provisional voting records is governed by Title 6 of the Texas Election Code.

Argument

• An election contest is a special statutory proceeding that provides a remedy for elections tainted by fraud, illegality or irregularity. Blum v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999).
  • It is the Contestants’ burden to show by clear and convincing evidence that the outcome was not the true outcome because illegal votes were counted or an election officer prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud, illegal conduct, or mistake. McCurry v. Lewis, 259 S.W.3d 369, 373 (Tex.App.-Amarillo 2008, no pet.); Tex. Elec. Code § 221.003(a). The outcome of the election is materially affected when a different and correct result would have been reached in the absence of irregularities in the conduct of the election rendered it impossible to determine the majority of the voters’ will. McMurry at 373. Accordingly, “[v]oting irregularities materially affected the election results.” Tiller v. Martinez, 974 S.W.2d 769, 772; Gonzalez v. Villarreal, 251 S.W.3d 763, 773 (Tex. App. 2008).
  • According to Section 65.0581, “provisional voting records are not available for public inspection until the first business day after the date the early voting ballot board completes the verification and counting of provisional ballots and delivers the provisional ballots and other provisional voting records to the general custodian of election records.”
  • As stated above, the said primaries contained irregularities and discrepancies, which affected the integrity of the elections. First, the administrator failed to allow for the inspection of provisional ballots where the race was decided. There were also conflicting results. On one hand, the final vote shows that the Respondent is ahead by one vote. On the other hand, the Constable race shows the total votes for EVMail as 1551. It is notable that in this race, and only this race, the Constable has 26 more EV Mail ballots cast in its race than the JP race (1525) for the same district which is higher on the ballot. Accordingly, as a result of this discrepancy and/or error, the Petitioner is behind with 61 Votes. The foregoing happened despite the fact that the JP race has less mail ballots than Constable by 26 votes. Petitioner therefore avers that if the vote discrepancy of 26 EVMail ballots is removed, the Petitioner is behind by 35 votes, which is within the margin of error for provisional ballots at 39.
  • Further, there was no notice regarding the provisional ballot count and the cure process, as required by law. The provisional ballots were also not shown after order by the judge. I was also never given the required deposit amounts for a recount after asking several times. The elections administrator also stated his office messed up regarding counting the ballots and that there is a margin of error in the results although by law he is unable to do an automatic recount.
  • The Petitioner asserts that the erroneous votes are prejudicial; to the Petitioner would impede him from being the rightful democratic nominee for the Precinct 3 Constable race.

Prayer

6.1 Now therefore, based on the foregoing, and due to the many discrepancies and irregularities that effected the Precinct 3 Constable race out of the hundreds of Democratic offices on the ballot for this year’s primary, the Petitioner asks that this race be considered null and void and be placed on the democratic runoff ballot to ensure the integrity of election results and a fair outcome that reflects the true will of the voters.

Respectfully submitted,

Dated: ____________

CERTIFICATE OF SERVICE

Pursuant to Rule 21 of the Texas Rules of Civil Procedure, I certify that a true and correct copy of foregoing document was served in compliance with Rule 21a of the Texas Rules of Civil Procedure to the following in the manner indicated below:

[ENTER RESPONDENT’S ADDRESS]

DATED: _____________