The candidate who narrowly lost the County Criminal Court No. 3 seat in Tuesday’s primary election is demanding a release of the names of provisional ballot holders so those voters can be notified and have the opportunity to fix their ballots.
Denton County prosecutor George Mitcham, who lost to incumbent Judge David Garcia by just 39 votes based on the in-person vote totals, asked Elections Administrator Frank Phillips on Friday to release the names.
Mitcham lost by the narrowest margin in Denton County, but the tally won’t be official until the provisional and mail-in ballots are counted. Those counts were underway Friday and must be completed by Monday.
Provisional ballots are given in certain circumstances, including cases in which the voter has problems with identification. Those voters are expected to return with the proper identification for their vote to be counted.
“It’s only fundamentally fair that Denton County sees to it they are notified what they need to do to cure that vote,” Mitcham said. “Whether it has anything to do with my race on the ballot, who knows. They may not have voted all the way down the ballot or voted for me if they did.”
Phillips said he told Mitcham he would not release the names until after the ballots were counted.
“Once we get them, we have to research each one and determine the status of that voter in our system [and] whether they should have been eligible to vote,” Phillips said.
On election day, 234 mail ballots had been submitted and by Friday, 213 of them had been accepted as having met the criteria for a mail ballot.
Officials said there are about 130 provisional ballots.
Mitcham placed two poll watchers at the elections office Friday to be present while the early voting ballot board processed ballots.
Mitcham said that under the Texas administrative code, the names are public record.
He also submitted an open records request at 4:07 p.m. asking for the information, noting in the request that he expected the list by 5 p.m.
He also cited a recent race in Williamson County north of Austin where there were a small number of votes between candidates and the elections administrator provided access to the names on the provisional ballots.
“Who will it hurt?” Mitcham asked. “Right now the only thing it will hurt [if they are not released] is those 130 voters. I can’t see a legitimate reason we can’t get a head start on letting these people know and reminding them.”
Phillips said he contacted the Texas Secretary of State’s office and was told that the information was not public.
Mitcham said he is weighing his legal options.
“He said he was not happy with that answer and said he would seek a temporary restraining order. And I told him to go ahead,” Phillips said.
Garcia said late Friday that he trusts the people in charge of the election.
“That’s why they have these meetings ... these provisional ballot boards, where they go over all these things and the law is pretty clear, yes or no,” Garcia said.
He said he would assume that the voters are told when they come in, for whatever reason, that they are being given a provisional ballot and receive instructions on how to make their vote count.
Phillips said that the only provisional ballots that can be cleared by voters are by those who had problems with identification.
Phillips said that he saw only two or three provisional ballots, out of the 50 or so that had been counted, that had problems with identification.
“He just doesn’t like the answer and I am sorry I can’t help what the opinion of the secretary of state and the civil division of the district attorney say, but that is what I am doing right now,” Phillips said.
BJ LEWIS can be reached at 940-566-6875 and via Twitter at @BjlewisDRC.