Down for the Recount

A dozen votes — and now an infrequently invoked legislative proceeding that could involve all 149 of his future colleagues — stand between Dan Neil and a seat in the Texas Legislature.

After the former Denver Bronco and University of Texas lineman lost his state house race last month to incumbent state Rep. Donna Howard, D-Austin, by 15 votes out of 51,533 cast, he demanded a recount. He still lost — but this time by 12 votes. On Monday, he filed a formal petition with the secretary of state to have the Texas House settle the election’s outcome. 

So what exactly does that mean?

The Texas Constitution establishes the House as the ultimate arbiter of the dispute on the principle that a legislative body — and not the courts, for instance — should decide its own elections.

But the state election code doesn’t get too specific as to how that should happen in Texas. 

Howard filed her answer to Neil’s petition Tuesday, dismissing his claim that a tally of overseas ballots would tilt the election in his favor. Now, House Speaker Joe Straus, R-San Antonio, will select a committee to review the evidence and issue a report, which it must do “as soon as practicable,” according to state law. (If this were a senate race, Lt. Gov. David Dewhurst would do it.) After House members review the findings of the committee — and they can call their own witnesses and hold new hearings on the House floor if they wish — they will vote to seat either Neil or Howard or to hold a new election altogether. At any point during the process Neil may decide to withdraw his petition and concede the contest to Howard.

As for how many legislators should sit on that committee or what their party affiliations should be — that’s up to Straus. The House last faced this situation in 2004, when three races resulted in contested elections. Then, Speaker Tom Craddick, R-Midland, selected a nine-person committee — five Republicans and four Democrats — to wade through the evidence. The committee issued a report in only one of the three cases: Republican incumbent Talmadge Heflin, who had lost to his Democratic challenger Hubert Vo. The committee recommended that Vo be seated, but Heflin withdrew his petition before the full House could vote. Republicans Eric Opiela and Jack Stick filed petitions against state Reps. Yvonne Gonzalez Toureilles, D-Beeville, and Mark Strama, D-Austin, respectively, only to retract them before the committee completed its findings.

(At press time, a spokesman for the secretary of state could not say how many contested elections there have been before 2004.)

It’s rare for a contest to make it to the House floor. The last time that happened was in a 1981 matchup between Republican Alan Schoolcraft and incumbent Democrat Al Brown. At the time, the House committee appointed to consider the issue found in favor of Schoolcraft. But when the full House took up the dispute, lawmakers voted instead to order a new election, which Schoolcraft won.

When Straus appoints the panel that will probe the set-to between Neil and Howard, he will also pick a “master of discovery” to lead its proceedings. He or she can decide to function as a mini-judge — hearing all the evidence and then issuing his own report to the committee for their consideration — or take a more organizational role to guide members through the hearings. There’s no requirement that the master be a lawyer, but it often helps to have a lawmaker with a legal background because of the duties involved, says David Hanna, a lawyer with the Texas Legislative Council. A likely pick for the job this time is state Rep. Will Hartnett, R-Dallas, the attorney who presided over the three contests that resulted from the 2004 elections.

State Rep. Craig Eiland, D-Texas City, served as vice chairman of the committee appointed to consider those contests. While he believes it’s ultimately the Legislature’s role to decide election contests, he says the courts “will always be there” to make sure legislators properly followed established law to reach their conclusion. 

“If people decide if they want to challenge, they need to be able to rely on the precedents, not just ‘Oh, if we get a bunch of Republicans on the committee we can win,’ or ‘Oh, if we get a lot of Democrats on the committee we can win,’” he says. “It's all politics, but when it gets into members of a legislative committee who have sworn an oath, it should be not about politics, but about the facts.”