Motion for Inspection of Ballots in Texas

Purpose of Inspection of Ballots in Election Contest

“In an election contest, the contestant has the burden of proving that voting irregularities were present and that they materially affected the elections results.” (See Slusher v. Streater (1995) 896 S.W.2d 239, 241; Guerra v. Garza (1993) 865 S.W.2d 573, 576; Green v. Reyes (1992) 836 S.W.2d 203, 208; Medrano v. Gleinser (1989) 769 S.W.2d 687, 688.)

“The contestant must prove that illegal votes were cast in the election being contested and that a different and correct result would have been reached by not counting the illegal votes.” (See id.)

“The Election Code provides the procedure by which a trial court can ascertain the true outcome of the contested election.” (See id.)

Rules for Contesting Ballot Count

“The election code provides that the trial court may void the election results if the number of illegal votes is equal to or greater than the number of votes necessary to change the outcome of an election.” (See De La Paz v. Gutierrez, No. 13-18-00377-CV, at *13 (Tex. App. Oct. 25, 2018); Tex. Elec. Code § 221.009.)

“A tribunal hearing an election contest may cause secured ballot boxes, voting machines, or other equipment used in the election to be unsecured to determine the correct vote count or any other fact that the tribunal considers pertinent to a fair and just disposition of the contest.” (See Tex. Elec. Code § 221.008.)

“If an examination of ballots is needed in an election contest and the ballots are lost, destroyed, or otherwise beyond the reach of the tribunal, the voters who cast the ballots may testify as to how they voted.” (See Tex. Elec. Code § 221.010.)

Standard of Review in an Election Contest

“[I]n an election contest, the trial court is vested with wide discretion in determining all matters necessary or proper to determine the contest's outcome, including whether the ends of justice require the opening of the ballot boxes and a recount of the ballots.” (See Slusher v. Streater (1995) 896 S.W.2d 239, 242; Guerra v. Garza (1993) 865 S.W.2d 573, 578; Villarreal v. Hedrick (1979) 579 S.W.2d 41, 45-46; Little v. Alto Indep. Sch. Dist. (1974) 513 S.W.2d 886, 892.)

“We will not overturn the trial court's decision to do so unless a clear abuse of discretion on a material issue is shown.” (See id.)

Legal Precedents and Case Law on Election Contests

It is well settled that “[e]lection contestants must allege and prove particularized material irregularities in the conduct of the election and show either 1) that a different and correct result should have been reached by counting or not counting certain specified votes affected by the irregularities, or 2) that the irregularities rendered impossible a determination of the majority of the voters' true will.” (See Guerra v. Garza (1993) 865 S.W.2d 573, 576; Goodman v. Wise (1981) 620 S.W.2d 857, 859; Wright v. Board of Trustees of Tatum Independent School Dist. (1975) 520 S.W.2d 787, 793.)

It is also well settled that “the scope of inquiry permitted in a hearing on an election contest mandates that the tribunal "shall attempt to ascertain whether the outcome of the contested election, as shown by the final canvass, is not the true outcome” (See Reyes v. Zuniga (1990) 794 S.W.2d 842, 845.)