David Rogers v. Gregorio "Greg" Casar

ACCEPTED 03-15-00505-CV 7568197 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/27/2015 5:20:33 PM JEFFREY D. KYLE CLERK No. 03-15-00505-CV IN THE THIRD COURT OF APPEALS OF TEXAS DAVID A. ROGERS Appellant v. FILED IN GREGORIO “GREG” CASAR, 3rd COURT OF APPEALS AUSTIN, TEXAS Appellee 10/27/2015 5:20:33 PM JEFFREY D. KYLE Clerk Appeal from the 201st District Court Travis County, Texas BRIEF OF APPELLANT David Rogers Texas Bar No. 24014089 Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 Telephone: (512) 923-1836 Fax: (512) 201-4082 ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT REQUESTED  No. 03-15-00505-CV IN THE THIRD COURT OF APPEALS OF TEXAS DAVID A. ROGERS, Appellant v. GREGORIO “GREG” CASAR, Appellee Appeal from the 201st District Court Travis County, Texas BRIEF OF APPELLANT David Rogers Texas Bar No. 24014089 Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 Telephone: (512) 923-1836 Fax: (512) 201-4082 ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT REQUESTED Rogers Appellant Brief p. ii  IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties, as well as the names and addresses of all counsel: PARTIES Appellants/Plaintiffs: Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney for Appellant Dr. Laura Pressley David A. Rogers Texas Bar No. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836 — Telephone 512-201-4082 — Facsimile Email: Firm@DARogersLaw.com Pro Se Appellees/Defendants: Charles 'Chuck' Herring Jr. 09534100 cherring@herring-irwin.com Jess Irwin - 10425700 jess@herring-irwin.com Lauren Ross – 24092001 laurenbross@herring-irwin.com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580 Rogers Appellant Brief p. iii Kurt Kuhn – 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002- Facsimile ATTORNEYS FOR APPELLEE, GREGORIO "GREG" CASAR Rogers Appellant Brief p. iv  TABLE OF CONTENTS Identity of Parties and Counsel…………………………………………iii Table of Contents……………………………………………………….v Index of Authorities…………………………………………………….vi Statement on Oral Argument……………………………………………1 Statement of the Case………………………………..………………….1 Statement of Facts………………………………………………………5 Issues Presented…………………………………………………………5 Summary of Argument………………………………………………….7 Argument…………………………………………………………….….8 Prayer…………………………………………………………………..18 Certificate of Service…………………………………………..………18 Certificate of Compliance…………………………………………..…19 Rogers Appellant Brief p. v  INDEX OF AUTHORITIES TEXAS SUPREME COURT Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000)…………….15 City of Tyler v. Beck, 196 S.W.3d 784, 787 (Tex. 2006) …………………………12 In Re Users System Services, Inc., USSI Computer Services, Inc., 22 S.W.3d 331, 336 (Tex. 1999) ………………………………………………………………..…12 Low v. Henry, 221 S.W.3d 609, 622 n.5 (Tex. 2007) ………………..…8, 9, 10, 17 R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S. W3d 619, (Tex. 2011) ………………………………………………..……………9 Tarrant Appraisal Dist. v. Moore, 845 S. W2d 820, 823 (Tex. 1993)…………….9 Tex. Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (1993)..10, 11, 16 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)…………..…………….…………………………………………………….11 Tex. Dep't of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004). …………...…………………………………………………9 TEXAS COURTS OF APPEALS Barnes v. Sulak, 2002 Tex. App. LEXIS 5727 (Tex.App. – Austin 2002) ……..13 Ebert v. Day, 2004 Tex. App. LEXIS 11043 (Tex.App. – Austin 2004) ……..... 12 Harris County Appraisal District, v. KMI Yorktown LP, 2010 Tex. App. LEXIS 3201 (Tex.App. – Houston [1st Dist.] 2010)… …………………………………..15 Heritage Gulf Coast Props. v. Sandalwood Apts., Inc., 416 S.W.3d 642 (Houston [14th Dist.] 2013)………………………………………………………………….9 In re Marriage of Landry, 2014 Tex. App. LEXIS 3954 (Tex.App. – Waco 2014) …………………………………………………………………………………….14 In re News Am. Publ'g, 974 S.W.2d 97, 103 (Tex.App. – San Antonio 1998) …..15 In the Interest of K.L.R., 162 S.W.3d 291, 299 (Tex.App. – Tyler 2005) ……….12 In the Interest of T.K.W., 2010 Tex. App. LEXIS 1040, *11, 2010 WL 546584 (Tex. App. San Antonio Feb. 17, 2010)………………………………….………16 Joyner v. Comm'n for Lawyer Discipline, 102 S.W.3d 344 (Tex.App. – Dallas 2003) …………………………………………………………………………….15 McCarty v. Rooney, 2000 Tex. App. LEXIS 3408 n. 1 (Tex.App. – Houston [14th Dist.] 2000) ……………………………………………………………………….14 Morin v. Boecker, 122 S.W.3d 911, 914 (Tex.App. – Corpus Christi 2003) …….14 Palmer v. Cantrell, 747 S.W.2d 39, 41 (Tex.App. – Houston [1st Dist.] 1988) ….14 Randolph v. Jackson Walker, L.L.P., 29 S.W.3d 271 (Tex. App.-Houston [14th Rogers Appellant Brief p. vi Dist.] 2000, pet. denied)……………………………………………………..……16 Shook v. Shook, 2010 Tex. App. LEXIS 3864 (Tex.App. – Houston [1st Dist.] 2010) ……………………………………………………………………………...11 Sunbeam Envtl. Servs. v. Tex. Workers' Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex.App. – Austin 2002) ………………………………………………………...15 STATUTES Texas Civil Practice and Remedies Code Chapter 10 ………………4, 6, 9, 10 TEXAS RULES OF CIVIL PROCEDURE Texas Rule of Civil Procedure 8 …………………………4, 5, 7, 8, 11, 12, 13 Texas Rule of Civil Procedure 13 ……………………………………………4, 9 Rogers Appellant Brief p. vii TO THE HONORABLE THIRD DISTRICT COURT OF APPEALS: 1. Appellant, David A. Rogers (hereinafter “Rogers”), hereby pleads that the honorable Court of Appeals reverse the sanctions order of the district court and render an decision denying Appellee’s motion for sanctions against Rogers, and in support of this appeal shows this honorable Court as follows: Statement on Oral Argument 2. As this case is not legally complex, and as the facts are straightforward, Rogers does not request oral argument. In the event the Court finds that oral argument would be helpful, Rogers requests to participate in such argument. Statement of the Case 3. Appellant is David A. Rogers (hereinafter “Rogers”). 4. Laura Pressley is a contestant of the 2014 run-off election for the District 4 City Counsel seat of Austin, Travis County, Texas. Ms. Pressley (hereinafter “Pressley”) is an appellant of said contest in this consolidated appeal, Appeal Number 03-15-00368-CV. 5. Gregorio "Greg" Casar (hereinafter (“Appellee”) won the 2014 run-off election for the District 4 City Counsel seat of Austin, Travis County, Texas. Appellee is the contestee in the Pressley’s contest of the of the 2014 run-off election. Rogers Appellant Brief p. 1 6. As noted in Pressley’s brief (p. 3), the record is long and confusing.1 On January 30, 2015 Pressley, through Rogers, filed her Original Contest of Election, Motion to Modify Discovery Deadlines, and Requests for Disclosure and Production of Documents for the Office of the Austin City Council, District 4. (070215 CR 3-40) 7. On April 16, 2015, Pressley filed Contestant’s Notice of Designation of Lead Counsel. (070215 CR 447-48). Therein, Pressley designated Mark Cohen, Esq., as lead counsel in the election contest in the trial court below, replacing Rogers as lead counsel and demoting him to co-counsel. Shortly after Cohen’s designation, Pressley was deposed by Casar’s trial counsel. Cohen defended that deposition. During that deposition, Pressley did not specifically name persons who were disenfranchised by the closure and consolidation of election precincts. (070215 CR 603-606) 8. On April 20, Pressley filed her Fifth Amended Contest. (072915 Sup.CR 339-376) Thereon, Mr. Cohen, then lead counsel, is listed in the signature block. (072915 Sup.CR 375) On April 23, 2015, Casar filed his Motion to Strike Pleadings (the Fifth Amended Contest) and for Sanctions. (070215 Sup.CR 479-                                                                                                                         1 References to the record in Rogers brief will be by the date of the record and page number therein. 2 In Casar’s Amended Motion for Sanctions, filed 5-22-2015, Casar complained of the 6th Amended Contest, which omitted some of the materials complained of in the 5th Amended Contest. (080715 CR 3-7) Similar complaints were made in the Second and Third Amended Motion for Sanctions, filed 6-12-2015. (080715 CR 8-12) (072915 CR 1934-1939) 3 Rogers includes by reference here the specific arguments made in his response to the Third Amended Motion for Sanctions. (172915 CR 1940-1947.) Rogers Appellant Brief 4 p. 2  Low v. Henry, 221 S.W.3d 609, 622 n.5 (Tex. 2007)   487) This was Casar’s first motion for sanctions. The motion specifically and clearly referenced only the Fifth Amended Contest. (070215 Sup.CR 482-483) On April 24, 2015, Mr. Cohen communicated via email with the trial court and opposing counsel negotiating and coordinating discovery. (070215 CR 4497) 9. On May 4, 2015, Pressley served her Notice Of Deposition On Oral Testimony Of A Representative Of Travis County Clerk's Office. (070215 CR 4488-4492) Thereon, Mr. Cohen is listed in the signature block. (070215 CR 4497- 4500) 10. On May 11, 2015, Mr. Cohen conducted the deposition of Dana Debeauvoir, Travis County Clerk in charge of elections. (070215 CR 1881-2013) Rogers neither attended (070215 CR 1882) nor conducted (070215 CR 2012-2013) the deposition of the Travis County Clerk. 11. On May 18, 2015, Mr. Cohen emailed opposing counsel regarding the privilege log opposing counsel provided. (070215 CR 4531) On May 19, 2015, Pressley filed her Sixth Amended Contest. (070215 CR 860-1880). Thereon, Mr. Cohen is listed in the signature block. (070215 CR 913). On May 20, 2015, Appellant filed her Motion to Compel. (070215 CR 4501-4510) Thereon, Mr. Cohen is listed in the signature block. (070215 CR 4507-4508) 12. On May 26, 2015, Pressley filed her Contestant’s Response to Contestee’s Motion to Strike Pleadings and for Sanctions (072915 Sup.CR 1525-1933). Mr. Rogers Appellant Brief p. 3 Cohen is again listed in the signature block. (072915 Sup.CR 1531) Also, on May 26, 2015, Pressley filed her Contestant’s Response to Third Party's Motion for Protective Order. (070215 CR 4606-4617) Mr. Cohen is again listed in the signature block. (070215 CR 4615) 13. Rogers asserts that the trial court, Honorable Dan Mills presiding, erred in granting sanctions against Rogers. Texas Rule of Civil Procedure 8 makes clear that the lead attorney is the party responsible for the pleadings. The motion for sanctions was based on the factual allegations asserted in the 5th and 6th Amended Contests.2 At the time the allegedly violative pleadings were filed, Cohen was the attorney-in-charge of the case responsible for the filings, not Rogers. Consequently, as a matter of law, Rogers was not responsible for those filings for purposes of imposing sanctions. 14. Rogers further asserts that the trial court, Honorable Dan Mills presiding, erred in granting sanctions against Rogers based on the allegations in the pleadings and the responses to Contestee’s motion for no evidence summary judgment because said allegations were sufficiently supported by evidence to comply with Texas Civil Practice and Remedies Code Chapter 10 and Texas Rule of Civil Procedure 13 and defeat Appellee’s no evidence motion for summary                                                                                                                         2 In Casar’s Amended Motion for Sanctions, filed 5-22-2015, Casar complained of the 6th Amended Contest, which omitted some of the materials complained of in the 5th Amended Contest. (080715 CR 3-7) Similar complaints were made in the Second and Third Amended Motion for Sanctions, filed 6-12-2015. (080715 CR 8-12) (072915 CR 1934-1939) Rogers Appellant Brief p. 4 judgment.3 Consequently, as a matter of law, Rogers was not subject to sanctions. Statement of Facts 15. Rogers adopts, incorporates, and includes by reference Pressley’s Statement of Facts set forth in Pressley’s Appeal Brief as if fully set forth herein. Rogers adds below the following facts set forth in the record. 16. On June 3, 2015, Mr. Cohen emailed Rogers, terminating Rogers’ representation of Pressley. In response to Mr. Cohen’s email, Rogers, that same day requested confirmation from Pressley. Pressley confirmed that she authorized Mr. Cohen’s email terminating Rogers as her representative. (080715 CR 13-15) 17. On June 15, 2015, Mr. Cohen filed the Notice of Accelerated Appeal on behalf of Pressley. (070215 CR 5224-25) This honorable Court recognized his position as the attorney responsible for Pressley’s case. (070215 CR 5226) Issues Presented 18. Issue 1. Was the Court without jurisdiction to order sanctions against an attorney other than the attorney in charge based solely on pleadings filed? 19. Issue 2. Did the trial court abuse its discretion by imposing sanctions without regard to Texas Rule of Civil Procedure 8? Did the court err in granting sanctions against Rogers based on the factual allegations asserted in the 5th and                                                                                                                         3 Rogers includes by reference here the specific arguments made in his response to the Third Amended Motion for Sanctions. (172915 CR 1940-1947.) Rogers Appellant Brief p. 5 6th Amended Contests, when those Amended Contests were filed after Pressley replaced Rogers as attorney-in-charge by designating Cohen as lead counsel? 20. Issue 3. Did the Court abuse its discretion in setting the amount of the sanctions without finding a direct nexus between the improper conduct and the sanction imposed, and without finding bad faith on Rogers’ part? 21. Issue 4. Was the right to seek sanctions foreclosed and barred by the language of the only final judgment during the court’s plenary power, or by the Rule 11 agreement that all issues between the parties were resolved for purposes of imposing sanctions? 22. Issue 5. Did the trial court commit reversible error by granting appellee’s motion for no evidence summary judgment? Sub Issue 1. Did the trial court commit reversible error by preventing appellant from obtaining discoverable documents? Sub Issue 2. Did the trial court err by imposing sanctions after it erred by granting a no-evidence motion for summary judgment without reading the summary judgment evidence? Sub Issue 3. Did the trial court commit reversible error by imposing sanctions after it erred granting appellee’s motion for no evidence summary judgment when appellant produced more than a scintilla of evidence? 23. Issue 6. Did the trial court err by awarding sanctions against Rogers under Rogers Appellant Brief p. 6 Chapter 10 of the Civil Practices and Remedies Code? Summary of Argument 24. Rogers filed the original election contest. Beginning with the April 16, 2015 Notice of Designation of Lead Counsel, Mark Cohen was the attorney-in- charge, responsible for all subsequent filings in the case. TEX. R. CIV. PRO. 8. Rule 8 states: RULE 8. ATTORNEY-IN-CHARGE On the occasion of a party's first appearance through counsel, the attorney whose signature first appears on the initial pleadings for any party shall be the attorney-in- charge, unless another attorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney-in-charge shall be responsible for the suit as to such party. All communications from the court or other counsel with respect to a suit shall be sent to the attorney-in-charge. (Emphasis added.) 24. Casar therefore lacked standing to move for sanctions against Rogers based on post April 16, 2015 pleadings because Rogers was no longer the attorney-in- charge of Pressley’s election contest. Casar lacked standing to seek sanctions from Rogers. Standing is essential to a court’s jurisdiction. The trial court therefore lacked jurisdiction to award sanctions against Rogers. The trial court could not sanction Rogers on that basis. 25. Though this jurisdictional challenge was not raised below, a court’s Rogers Appellant Brief p. 7 jurisdiction may be challenged for the first time on appeal. 26. Based on the documents presented to the trial court, there was no basis for awarding attorney’s fees against Rogers related to filing the Fifth or Sixth Amended Contest or Contestant’s Response to Contestee’s Motion for Summary Judgment, all filed after Cohen was designated as lead counsel. 27. Rogers adopts Pressleys’ Brief, excepting Pressley’s arguments on pages 57- 58 regarding the third Low4 factor. Pressley’s claims, both before and after the date Cohen became lead counsel were sufficiently supported by fact and law and adequate investigation was made under the existing circumstances. The multiple amendments are proof that Pressley’s counsel were responsive to the obligation to promptly amend pleadings as new facts were uncovered. 28. Rogers requests this honorable Appeals Court reverse and render, denying Casar’s motion for sanctions against Rogers. Argument Issues 4-6 29. Rogers adopts, incorporates, and includes by reference the facts, record citations, case law citations, and arguments set forth in Pressley’s Appellant’s Brief in Appeal No. 03-15-00368-CV as to Issues 4-6 of Rogers Brief of Appellant in                                                                                                                         4  Low v. Henry, 221 S.W.3d 609, 622 n.5 (Tex. 2007)   Rogers Appellant Brief p. 8 Appeal No. 03-15-00505 except for, and particularly excluding, Pressley’s arguments on pages 57-58 regarding the third Low5 factor. 30. All claims of Pressley asserted by Rogers during the course of this election contest were sufficiently supported by fact and law, in compliance with Texas Rule of Civil Procedure 13, to meet the pleading requirements, and defeat Appellee’s no-evidence summary judgment, and, therefore, preclude the imposition of sanctions against Rogers pursuant to Texas Civil Practice and Remedies Code Chapter 10.6 31. Furthermore, “The mere fact that a trial court granted summary judgment or a jury rejected a plaintiff’s claim doesn’t justify sanctions under CPRC 10.01.” Heritage Gulf Coast Props. v. Sandalwood Apts., Inc., 416 S.W.3d 642, 663 (Houston [14th Dist.] 2013). This is directly contrary to the theory advanced by Casar: “In the present case, the Court granted Mr. Casar's no-evidence summary judgment motion. Thus, the Court has already held that Ms. Pressley failed to present evidence raising a genuine issue of material fact. This ruling shows that Ms. Pressley failed to meet the § 10.001(3) evidentiary-support requirement.” (072915 CR 2025) Casar baldly claims that every successful no-evidence                                                                                                                         5 Low v. Henry, 221 S.W.3d 609, 622 n.5 (Tex. 2007) 6 Rogers also refers this honorable Court to the arguments in Pressley’s Sixth Amended Contest (070215 CR 904 to 909) for the proposition that agency interpretation cannot supercede the literal text of the statute as the will of the Legislature citing R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S. W3d 619, 625 (Tex. 2011); Tarrant Appraisal Dist. v. Moore, 845 S. W2d 820, 823 (Tex. 1993)); Texas Dep't of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004). Rogers Appellant Brief p. 9 summary-judgment gives rise to a CPRC 10.001(3) action for sanctions. This is plainly not the law. 32. Pressley’s argument regarding the third Low factor is addressed in Rogers’ appellant’s brief below. Issue 1: Lack of Jurisdiction 33. Rogers asserts the trial court lacked jurisdiction to award sanctions against him because Casar lacked standing obtain sanctions against Rogers. Standing and Jurisdiction 34. The Texas Supreme Court, in Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 444-46 (1993), explained the relationship between standing and subject matter jurisdiction: Subject matter jurisdiction is essential to the authority of a court to decide a case. Standing is implicit in the concept of subject-matter jurisdiction. . . . Under the Texas Constitution, standing is implicit in the open courts provision, which contemplates access to the courts only for those litigants suffering an injury. . . . Because standing is a constitutional prerequisite to maintaining a suit under both federal and Texas law, we look to the more extensive jurisprudential experience of the federal courts on this subject for any guidance it may yield. Under federal law, a lack of standing deprives a court of subject matter jurisdiction because standing is an element of such jurisdiction. Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties. Because we conclude that standing is a component of subject matter Rogers Appellant Brief p. 10  jurisdiction, it cannot be waived and may be raised for the first time on appeal. . . . Because standing is a component of subject matter jurisdiction, we consider TAB's standing under the same standard by which we review subject matter jurisdiction generally. That standard requires the pleader to allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. The general test for standing in Texas requires that there "(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought." Texas Rule of Civil Procedure 8 35. Questions of law are reviewed by the appellate court de novo.7 In Shook v. Shook, 2010 Tex. App. LEXIS 3864 (Tex.App. – Houston [1st Dist.] 2010), the court, considering the application of Texas Rule of Civil Procedure 8, held: The dispositive issue in this appeal deals with the application of the rules of civil procedure to undisputed facts, which is a question of law we review de novo. See Moore v. Wood, 809 S.W.2d 621, 623 (Tex. App.--Houston [1st Dist.] 1991, no writ) (holding rules of statutory construction also apply to rules of procedure). 36. Rogers asserts that Casar did not have a right to relief against him for sanctions. Texas Rule of Civil Procedure 8 states, in pertinent part: RULE 8. ATTORNEY-IN-CHARGE On the occasion of a party's first appearance through counsel, the attorney whose signature first appears on the initial pleadings for any party shall be the attorney-in- charge, unless another attorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney- in-charge shall be responsible for the suit as to such party. (Emphasis added)                                                                                                                         7 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) Rogers Appellant Brief p. 11 Lead Counsel Designation 37. On January 30, 2015, Pressley filed her Original Contest of Election signed by Rogers. (070215 CR 3-40) Pursuant to Rule 8, Rogers, upon filing of the original petition, was the attorney-in-charge of Pressley’s case in state court. On April 16, 2015, Pressley filed Contestant’s Notice of Designation of Lead Counsel signed by Mark Cohen. (070215 CR 477-78). Therein, Pressley designated Mark Cohen, as lead counsel in the election contest in the trial court below, replacing Rogers as lead counsel and demoting him to co-counsel. See City of Tyler v. Beck, 196 S.W.3d 784, 787 (Tex. 2006) (“ Rule 8 of the Texas Rules of Civil Procedure provides that "[a]ll communications . . . with respect to a suit shall be sent to the attorney-in-charge," and that any change of that designation must be made by written notice to the court and the other parties. TEX. R. CIV. P. 8”); In Re Users System Services, Inc., USSI Computer Services, Inc., 22 S.W.3d 331, 336 (Tex. 1999) (“Rule 8 of the Texas Rules of Civil Procedure makes a party's ‘attorney-in- charge’ ‘responsible for the suit as to such party’. . . “); In the Interest of K.L.R., 162 S.W.3d 291, 299 (Tex.App. – Tyler 2005)(“ . . . [T]he attorney whose signature first appears on the initial pleadings for any party shall be the attorney-in- charge, unless another attorney is specifically designated therein.”); Ebert v. Day, 2004 Tex. App. LEXIS 11043 (Tex.App. – Austin 2004)(citing TEX. R. CIV. P. 8). Rogers Appellant Brief p. 12 38. In this case, a designation in writing was filed by Pressley making Mr. Cohen the lead counsel, and, therefore, attorney-in-charge. Tex. R. Civ. P. 8. Mr. Cohen’s name and bar card number appear in every subsequent pleading and other document filed after April 16, 2015 with the trial court in this case. Although Mr. Cohen did not sign all the documents filed in this case, his appearance in the signature block shows that he continued to function as the attorney-in-charge of the case. Barnes v. Sulak, 2002 Tex. App. LEXIS 5727 (Tex.App. – Austin 2002) (“The designation of an attorney-in-charge serves primarily to alert the court and other parties who is responsible for the conduct of the lawsuit for that party . . . . [T]he county attorney, was listed in the signature block, giving the motion the imprimatur of the designated attorney-in-charge.”) 39. Once he was designated, Mr. Cohen exercised his authority as lead counsel. On April 20, Mr. Cohen filed Contestants' Fifth Amended Original Contest Of Election, Motion to Modify Discovery Deadlines, and Requests For Disclosure for the Office of the Austin City Council, District 4. 072915 CR 339-376) On April 24, 2015, Mr. Cohen negotiated the terms of discovery in this accelerated proceeding. (070215 CR 4497-4500). On May 4, 2015, Mr. Cohen issued a deposition notice to the primary witness, the Travis County Clerk. (070215 CR 4488-4490) On May 11, 2015, Mr. Cohen deposed the Travis County Clerk. (070215 CR 4543 - 4576). Rogers Appellant Brief p. 13 40. On May 19, 2015, Mr. Cohen filed Pressley’s Sixth Amended Contest (070215 CR 860 – 915). During the May 26, 2015 hearing on summary judgment, the trial court recognized Mr. Cohen as lead counsel in the case. (RR Vol. 3, page 4, lines 11-12) Moreover, when the trial court asked who was speaking on behalf of Pressley, Mr. Cohen said, “I will”.8 (RR Vol. 3, page 14, lines 14-17) Mr. Cohen terminated Rogers’ representation of Pressley, which she confirmed. (080715 CR 13-15) 41. Courts around the state have consistently recognized the responsibilities of the attorney-in-charge based on being so designated. See Morin v. Boecker, 122 S.W.3d 911, 914 (Tex.App. – Corpus Christi 2003) (“Rule 8 designates an ‘attorney-in-charge’ so that the ‘attorney-in-charge . . . [can] be [held] responsible for the suit as to such party.’”); Palmer v. Cantrell, 747 S.W.2d 39, 41 (Tex.App. – Houston [1st Dist.] 1988) (“Where a single adverse party is represented by two attorneys who are not associated in a firm, we believe that it is sufficient to serve the attorney who is designated as lead counsel because he has ‘control in the management of the cause. . . .’"); McCarty v. Rooney, 2000 Tex. App. LEXIS 3408 n. 1 (Tex.App. – Houston [14th Dist.] 2000)(quoting Rule 8); In re Marriage of                                                                                                                         8 Rogers asserts that Pressley’s argument regarding the trial court reviewing the summary judgment evidence (RR Vol. 3, p. 20, line 22 through p. 21, line 22) may have also been the case with other non-dispositive and non-discovery related filings in the case. Despite the April 16 Notice of Designation of Lead Counsel, the trial court did not appear to recognize Mr. Cohen as lead counsel. (RR Vol. 3, p. 14, line 14 – 16)(“But what I want to ask Mr. Cohen that I don't know -- Mr. Rogers is here. I don't know who is going to speak for Dr. Pressley.”) Nevertheless, Mr. Cohen announced his position at this hearing, infra. Rogers Appellant Brief p. 14 Landry, 2014 Tex. App. LEXIS 3954 (Tex.App. – Waco 2014)(quoting Rule 8); Joyner v. Comm'n for Lawyer Discipline, 102 S.W.3d 344, 347 (Tex.App. – Dallas 2003)(“. . . [A]ttorney whose signature first appears on initial pleadings for any party "shall be the attorney-in-charge, unless another attorney is specifically designated therein," "said attorney-in-charge shall be responsible for the suit as to such party,"); In re News Am. Publ'g, 974 S.W.2d 97, 103 (Tex.App. – San Antonio 1998)(citing Rule 8); Sunbeam Envtl. Servs. v. Tex. Workers' Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex.App. – Austin 2002)(citing Rule 8); Shook, id. 42. Casar sought sanctions based on Pressley’s Fifth and Sixth Amended Original Contests. (072915 Sup.CR 1934-1938) Mr. Cohen was the attorney-in- charge of the filing of Pressley’s Fifth and Sixth Amended Original Contests. Casar lacked standing to seek or receive sanctions from Rogers for filing Pressley’s Fifth or Sixth Amended Original Contest when Mr. Cohen was, by virtue of the prior pleadings on file in the case, responsible for the filing of both the Fifth and Sixth Amended Contests. 43. “Standing is a component of subject-matter jurisdiction that cannot be waived.” Harris County Appraisal District, v. KMI Yorktown LP, 2010 Tex. App. LEXIS 3201 (Tex.App. – Houston [1st Dist.] 2010)(quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000)). “If a party has no standing, a trial court has no subject-matter jurisdiction to hear the case.” Id. Casar did not have Rogers Appellant Brief p. 15 standing to recover sanctions against Rogers, and, thus, the trial court lacked jurisdiction, to award sanctions against Rogers. 44. Pursuant to Texas Rule of Civil Procedure 8, based on Pressley’s April 16, 2015 designation of Mr. Cohen as lead counsel, Rogers was not the attorney responsible as a matter of law. Sanctions against Rogers were not authorized. Issue #2: Abuse of Discretion in Awarding of Sanctions 45. Rogers asserts the abused its discretion in awarding sanctions against him because Casar lacked standing to seek sanctions against Rogers. “A trial court's award of sanctions is reviewed under an abuse of discretion standard. To determine if there is an abuse of discretion, we must look to see if the court acted without reference to any guiding rules and principles." In the Interest of T.K.W., 2010 Tex. App. LEXIS 1040, *11, 2010 WL 546584 (Tex. App. San Antonio Feb. 17, 2010) (internal citations omitted.) “A trial court abuses its discretion in imposing sanctions if it bases its order on an incorrect view of the law or an erroneous assessment of the evidence.” Randolph v. Jackson Walker, L.L.P., 29 S.W.3d 271, 276 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). 46. As the Texas Supreme Court wrote in Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (1993): “The general test for standing in Texas requires that there ‘(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.’” Rogers Appellant Brief p. 16 47. There was no real controversy between the parties that could be resolved by the motion for sanctions, because Casar’s controversy was against the party responsible for the Fifth and Sixth Amended Petitions, which, as a matter of TRCP 8, was Cohen, not Rogers. A judicial declaration about the conduct of Rogers would not resolve the controversy between Casar and Cohen. Casar therefore had no standing to seek sanctions against Rogers for the filing of the Fifth and Sixth Amended Contests. The ruling by the trial court, therefore, exceeded its jurisdiction and was an abuse of discretion. Issue #3: Abuse of Discretion in the Amount of Sanctions 48. “To determine if the sanctions were appropriate or just, the appellate court must ensure there is a direct nexus between the improper conduct and the sanction imposed. Generally, courts presume that pleadings and other papers are filed in good faith. The party seeking sanctions bears the burden of overcoming this presumption of good faith.” Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). (internal citations omitted.) 49. In this case, the court did not find a nexus between improper conduct by Rogers and a sanction of $50,000. Additionally, though the Court expressly found that Pressley acted in bad faith9 (080715 CR 47), it made no such finding with                                                                                                                         9 The trial court found bad faith by Pressley in “false allegations of criminal activity against Travis County Director of Elections Michael Winn,” though, in fact, no such allegations were made or appear anywhere in the record of this case. See Pressley Appellate Brief at p. 50-51, Rogers Appellant Brief p. 17 regard to Rogers. The Court must find, therefore, that Casar did not overcome the presumption of good faith as to Rogers. Therefore, any sanction at all is unjust. 50. Rogers prays that this Court reverse and render, denying Casar’s request for sanctions in its entirety. Prayer 51. Rogers respectfully requests that the Court reverse the sanctions order of the District Court in all things and render a judgment denying the sanctions awarded by the District Court against him. RESPECTFULLY SUBMITTED, /s/ David Rogers DAVID ROGERS Law Office of David Rogers State Bar No. 24014089 1201 Spyglass Drive, Suite 100 Austin, TX 78746 (512) 923-1836 (512) 201-4082 (fax) Firm@DARogersLaw.com CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was served upon Counsel of record for Appellants via the Court’s online filing system on this 21th day of October, 2015. Kurt Kuhn State Bar No. 24002433 KUHN HOBBS PLLC 3307 Northland Drive, # 310                                                                                                                                                                                                                                                                                                                                                                                               paragraph 7. Rogers Appellant Brief p. 18 Austin, Texas 78731 (512) 476-6000 Telephone (512) 476-6002 Facsimile Kurt@KuhnHobbs.com Charles 'Chuck' Herring Jr. State Bar No. 09534100 Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 (512) 320-0665 Telephone (512) 519-7580 Facsimile cherring@herring-irwin.com ATTORNEYS FOR APPELLEE GREGORIO “GREG” CASAR Mark A. Cohen / SBN: 04508400 805 West 10th Street, Suite 100 Austin, Texas 78701 (512) 474-4424 Telephone (512) 472-5444 Facsimile mark@cohenlegalservices.com ATTORNEY FOR APPELLANT DR. LAURA PRESSLEY /s/ David Rogers DAVID ROGERS Pro Se CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this document contains 4182 words. __/s/__David Rogers___________ David Rogers SBN 24014089 Rogers Appellant Brief p. 19  Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 (512) 923-1836 (512) 201-4082 [Facsimile] Rogers Appellant Brief p. 20  1/30/2015 3:47:32 PM Velva L. Price District Clerk Travis County D-1-GN-15-000374 D-1-GN-15-00037 4 No. _ _ _ __ LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § v. § § GREGORIO "GREG" CASAR § Contestee § OF TRAVIS COUNTY, TEXAS § 201ST § --- th JUDICIAL DISTRICT CONTESTANTS' ORIGINAL CONTEST OF ELECTION, MOTION TO MODIFY DISCOVERY DEADLINES, AND REQUESTS FOR DISCLOSURE AND PRODUCTION OF DOCUMENTS FOR THE OFFICE OF THE AUSTIN CITY COUNCIL, DISTRICT 4 NOW COMES, Laura Pressley, Contestant, and files this Original Petition for Election Contest for the Office the Austin City Council, District 4 (Petition) against Gregorio "Greg" Casar, Contestee. The election was held on December 16, 2014 and canvassed on December 30, 2014. In support of this election contest, Dr. Pressley will respectfully show as follows: I. Discovery 1. The contestant intends that discovery be conducted under level three, a custom discovery plan for election contest devised with the approval of the court. 2. Pursuant to Texas Rule of Civil Procedure 194, and the motion set forth below, the plaintiff requests that the defendants, within fifteen days of the service of this document, disclose the information and material described in Rule 194.2. II. Summary 3. This contest is based on deprivation of voting rights of voters in two high population polling locations which were improperly closed, irregularity in votes counted or not counted, and a failure to comply with the Texas Election Code requirement for storing, retrieval and printing of images of Pressley v. Casar OP Contest p.l 3 ballots cast in electronic voting machines. Travis County uses electronic voting machines from Hart Intercivic to conduct elections within the county. 1 The result of these multiple irregularities is that the result cannot be known, and the Court must order a new election. Dr. Pressley requests that such an election be timely set, and conducted in compliance with the Texas Election Code and the Secretary of State's regulations governing elections. III. Parties 4. Contestant, Laura Pressley is a resident of Austin City Council District 4, Travis County, Texas. She is a candidate in the Austin City Council District 4 Run Off Election on December 16, 2014. 5. Contestee, Gregorio "Greg" Casar is a resident of Austin City Council District 4, Travis County, Texas. He was a candidate in the Austin City Council District 4 Run Off Election on December 16, 2014. Casar may be served with process at his principal place ofbusiness, 301 W. 2nd Street, Austin, Texas, 78701. 6. The election results were canvassed on December 30, 2014 and Mr. Casar was declared the victor. 7. A manual recount of all early voting, election day, and provisional cast vote records, and 1 Voters in different parts of the state utilize a number of different voting systems, all of which must first be certified by the Secretary of State. Tex. Elec. Code§ 122.001, .031. ... Once a system is The eSlate, a paperless DRE manufactured by Hart Intercivic, is one of a handful ofDREs the Secretary has certified. [6] See Voting Texas Secretary of State, http://www.sos.state.tx.us/elections/laws/votingsystems.shtml. Voters arriving at the polls in counties using the eSlate are given a unique access code. The voter enters the code into the eSlate, which then displays the ballot. Voters tum a dial to highlight their ballot choice and then press "enter" to make a selection. After a voter completes his selections, the eSlate displays a ballot summary page. If the voter's choices are correctly displayed, the voter presses the "cast ballot" button, and the vote is recorded. See Voter Instructions, Travis County, http://vlww. co. travis. tx. us/county_clerk/election/eS late/pdfs/English_Flyer_ 0 50923. pdf. Travis County purchased the eSlate system in 2001 and has used it since 2003. Andrade v. NAACP ofAustin, 345 S.\V.3d 1, 4, 5-6 (Tex. 2011) (footnotes omitted.) Pressley v. Casar OP Contest p.2 4 mailed-in ballots was performed on January 6 2015. 2 The results of the election were unchanged and Mr. Casar remained the victor for the Run Off election and was sworn into office on January 6, 2014. He has been notified of the filing of this action by a delivery of a copy of this Petition in accordance with TEX. ELEC. CODE§ 21.003(b). IV. Jurisdiction and Venue 8. Jurisdiction and venue in this case are proper and mandatory in Travis County because the office being sought is for a district entirely within the boundaries of Travis County under the Texas Elections Code, Section 232.006. V. Facts 9. City of Austin District 4, comprised of 18 voting precincts, is located entirely in Travis County. Early Voting 10. Early Voting for the Run Off Election for District 4 of the Austin City Council was held on December 1 through December 12, 2014. 3 During Early Voting from December 1 through December Iih, the Travis County Clerk's Office released daily Reports for voters that voted via Ballot By Mail, and Early Voting. 11. During Early Voting, many election irregularities occurred. According to Travis Count Election Division director Michael Winn, no Zero Tapes4 were printed for machines used in Early 2 Though the County Clerk termed the action a "manual recount," because the event as it occurred did not satisfy statutory criteria, Pressley does not concede that what occurred was actually a statutory manual recount as defined by the Texas Election Code. 3 In a typical election, election officials create ballots using Ballot Origination Software System ("BOSS"). The ballot definitions are fed by the Judge's Booth Controller ("JBC") to the eSlates attached to it. 4 A "zero tape" is run on the Judge's Booth Controller ("JBC") to ensure no votes reside in the system. When voters arrive they are given a JBC-generated PIN number that they enter on the Pressley v. Casar OP Contest p.3 5 Voting to verify that prior to the first votes being cast, no votes were pre-registered on the machines. 5 This failure is in violation of Texas Secretary of State requirements. See Texas Secretary of State (last visited 1-29-2014). Election Day 12. Election Day was December 16, 2014. Many election irregularities occurred. 13. Voters seeking to vote at high-volume locations were improperly denied the right to cast their vote. Disenfranchisement of District 4 voters occurred as a result of the closing of the two highest volume District 4 voting locations on the Run Off Election Day, December 16, 2014. The Highland Mall voting location at 6601 Airport Blvd was open during the General Election on November 4, 2014 and saw some of the highest volume of voters in District 4. This location was closed for the December Run Off election and was moved to the far less convenient Travis County Tax Office (5501 Airport Blvd). The Pressley campaign received multiple reports of voters being upset and confused because the voting location had been moved. The second highest voting precinct and polling location in District 4 for the November General Election, was Precinct 222 at Cooke Elementary (1511 Cripple Creek). That Precinct is comprised of more than 25% senior voters who are 60 years and older. It was closed on Election Day for the December Run Off. It was combined with the fourth lowest voter turnout location in District 4, Precinct 268, Grant AME Worship Center at 1701 Kramer Lane. The Pressley campaign received reports that voters eSlate. They then vote and the votes are stored on the eSlate, Mobile Ballot Boxes (MBB), and JBC. 5 Travis County received a waiver of the state requirement for such tapes for the general election only in a letter dated September 30, 2014, based on the burden of the extremely long statewide ballot. See attached September 30, 2014 letter from Texas Secretary of State. The run-off election ballot includes only City Council and Mayoral candidates. The run-off was restricted to two candidates in the races requiring a run-off, unlike the first round, in which as many as twelve candidates participated in some races. Pressley v. Casar OP Contest p.4 6 showed up to Cooke Elementary for the December Run Off on Election Day and were upset and confused and did not subsequently show up to vote at the Kramer location. This is voter disenfranchisement of the two most critical, highest volume voting locations in District 4. For example, there are 2,971 registered voters in Precinct 222 and only 545 voted in the December 6 election. This action by the Travis County Clerk had a disproportionate effect on minorities, working people, and elderly voters of District 4, which is one of the Hispanic-opportunity districts in the City of Austin. As a result, some voters registered at those locations were improperly denied the right to cast their vote. 14. No zero tapes were printed at the countywide locations when the polls opened. The Secretary of State ("SOS") has procedures requiring these activities. See Texas Secretary of State Advisory 2012-03, 6(g)(vi), httg:/ (last visited 1-29-2014). 15. On Election Day, no results tapes were printed at the countywide locations when closing the polls. The SOS procedures require the printing of closing results tapes, also. Texas Secretary of State Advisory 2012-03, 6(k)(iii) (last visited 1-29-2014). 16. On Election Day, Pressley campaign official poll watchers were denied access to signing results tapes at two polling locations, Gus Garcia and Randall's at Research Blvd. This violates Secreatry of State regulations requiring that poll watchers be allowed to sign such tapes. "The presiding election judge, an election clerk, and not more than two watchers, if one or more watchers are present, shall sign the results tape(s)." Texas Secretary of State Advisory 2012-03, 6(k)(i) (last visited 1-29-20 14). 6 Polling location charts for November and December are attached. Pressley v. Casar OP Contest p.5 7 17. On Election Day, Pressley campaign official poll watchers not allowed access at Dobie Middle School, where the most important ballots (for the Graham, Gus Garcia, and Virginia Brown precincts) were placed in transit to central counting. Those boxes were the largest and strongest Pressley boxes. 18. On Election Day, poll watchers were improperly denied access to Central Counting activities with Mobile Ballot Boxes ("MBB"), Tally activities, and the like. 7 The Canvass 19. On Tuesday, December 30, 2014, the Mayor of Austin and the Austin City Council 7 Hart's eSlate System Hart's electronic (DRE) voting system is known as eSlate. The eSlate system is comprised of several distinct components. The Ballot Origination Software System ("BOSS") is used by election officials to define and create individualized electronic ballots. Data is entered once into BOSS and then flows through all components of the eSlate system. The Mobile Ballot Box ("MBB") is a reusable, portable flash memory card. It is used to store and transfer election information. When inserted into the Judge's Booth Controller, the MBB supplies election information and ballot styles, it stores an electronic representation of how votes were cast. Once voting has concluded the MBB is removed and its contents are tallied by the Tally software. The Judge's Booth Controller ("JBC") is the "brain" that manages the system, enabling poll workers to know which voting booths are in use at any time. The JBC issues access codes for the voters' use. It can control up to 12 daisy-chained eSlate units. eSlate refers to the system generally and to the device that voters use to cast ballots, unless using paper ballots, in which case Ballot Now is used. The eSlate may be equipped with a disabled access unit ("DAU") for use by disabled voters. The eSlate units are physically connected to the JBC, which stores cast-vote records. Tally is a software application that reads, stores, and tabulates the cast-vote records from the MBB (the portable flash card that transferred the cast-vote records from the JBC). Tally tabulates all early voting, absentee, and election day results, and produces various reports. Rally is a software application that is capable of reading, storing, and transferring cast-vote data from polling places or collection centers with respect to early returns. The System for Election Records and Verification Operations ("SERVO") software is an election records archiving and asset management system. SERVO is designed to recover data from equipment in the case of a lost or damaged MBB. SERVO also is designed for various recount purposes. Ballot Now is a digital-scan paper ballot system that manages the printing, scanning, and resolution of mailed-in paper ballots. It also records the electronic cast vote records to an MBB to be read and tabulated with Tally. Pressley v. Casar OP Contest p.6 8 conducted an initial official canvass and certification for the Election Day results for all races on the ballot, including City of Austin District 4. The canvassed and certified totals for District 4 were Laura Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast. 20. Comparison of the canvassed results with the Early Voting voter reports showed inconsistencies in the results. Travis County reported that 2,651 total voters voted in Early Voting in District 4. Reviewing the voter ID's, 437 entries existed for those submitting Ballot by Mail (BBM). There were at least 28 duplicate entries for BBM. At least 28 mail-in votes appear to have been counted twice. See Appendix A. 21. Once duplicate BBM's were removed, 2,622 voter names remained that voted in Early Voting according to the Early Voting lists from Travis County that were distributed prior to Election Day, December 16, 2014. Based on Travis County's Canvassed and Recount results for those that voted for Greg Casar, or Laura Pressley or Under Voted, the total number ofballots cast for Early Voting is 2,701. Therefore, there are 79 more ballots than voters for Early Voting. These 79 extra ballots are distributed among 15 of the 18 precincts of the District 4 Race. (One precinct, with one eligible voter, showed no votes.) See Appendix B. 22. An initial review the 2,622 Early Voting voter names and addresses with returned mail, about 14 of the voters had moved or no longer resided in District 4 and were not eligible to vote in the District 4 Run Off Election. Therefore, at least 14 ineligible voters cast votes in this contest. Statistical Improbabilities 23. A analysis of the voting results show a pattern of mathematical anomalies which is highly unlikely to occur naturally. For the nine (9) precincts in District 4 with more than 200 voters, the highest volume of voters, the ratio of votes that the Contestant received compared to Contestee is the same ratio in theN ovember General Election (with a total of 8 candidates) as it was in the Pressley v. Casar OP Contest p.7 9 December Run Off Election (with 2 candidates), 35.1% vs 35.0% respectively. In addition, the average of the percentages of the unweighted precincts that the Contestant received compared to Contestee, in the November General Election and the December Run Off, are also equal at equal 35.1% and 35.1 %, respectively. No other race in the City is within a lOx such a close non- variation, and only two races are within 1OOx such a variation. See Appendix C. 24. Such a result strongly suggests hardware problems, software problems, procedural issues or mishandling of machines which may have caused errors in tabulation or reporting. 25. A similar issue was observed for Early Voting (which typically experiences 1;2 the total voting for an election). For the precincts with more than 100 voters, the highest volume of early voters, the ratio of votes that the Contestant received compared to Contestee is the same ratio in the Early Voting in the November General Election (with a total of8 candidates) as it was in the Early Voting in the December Run Off Election (with 2 candidates), 36.7% vs 36.7% respectively. Again, no other race in the City is within a 1Ox such a close non-variation, and only two races are within lOOx such a variation. See Appendix D. 26. Such a result strongly suggests hardware problems, software problems, procedural issues or mishandling of machines which may have caused errors in tabulation or reporting. 27. Contestant is concerned there may have been some hardware issues, software malfunctions or mishandling that may have caused errors in the tabulation of the results. Additionally, some number of ineligible voters appear to have cast votes. The Recount 28. Given the highly improbable statistical anomalies, the duplicate Ballot by Mail entries, and that there are more ballots than number of voters for Early Voting (overvotes), Contestant requested a manual recount of the District 4 Election with the goal of reconciling the Pressley v. Casar OP Contest p.8 10 discrepancies. 29. On January 4, 2015, the Mayor of Austin and City Clerk approved Contestant's amended petition requesting a manual recount of actual stored balloting System. Contestant's amended petition included a request to reconcile the ballots cast with the number of voters documented on the sign in sheets and combination forms for District 4 for the countywide polling locations and Precincts to ensure accurate reporting of results. The number of voters recorded and the number of votes recorded did not match. 30. On January 5, 2015, prior to the Recount, Pursuant to TEX. ELEC. CODE§ 213.016, "PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES," Dr. Pressley communicated over the phone with the Director of Travis County Elections Division. Pressley informed the Director that she desired to be present during the printing of images of ballots cast. "Each candidate is entitled to be present and to have representatives present in the same number as prescribed by Section 213.013(b) for a recount during the printing of the images." An email was sent to The Travis County Clerk and copied to the Texas Secretary of State's Office, to the same effect. 31. On January 6, 2015, a manual recount was conducted and additional irregularities ensued with regard to and during the recount. No Ballot images 32. On Tuesday, January 6, 2015, at 11 :OOam when the recount was to begin, the Travis County Clerk and the Recount Committee relayed to Contestant and her official recount watcher, Karen Renick, the images of ballots cast were not available, would not be printed, and would not Pressley v. Casar OP Contest p.9 11 be used for the recount. 8 Dr. Pressley expressly stated, in her "Petition Requesting a Recount," and "Amended Petition Requesting a Recount" that "[w]e are requesting a manual recount of the results using the actual, stored, ballot images." Pressley also expressly requested "a manual (by- hand) count." "[T]he election code expressly provides for the 'printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount.' See id. § 213.016." Andrade v. NAACP ofAustin, 287 S.W.3d 240, 258 (Tex. App. Austin 2009), rev'd on other grounds by Andrade v. NAACP o.fAustin, 345 S.W.3d 1 (Tex. 2011). Failure to print images of ballots violates this provision of the election code. Printing errors 33. Prior to the start of the Recount, Travis County selected the data files to print and pre- print an aggregated data file of Cast Vote Records (CVR's). The pre-printed CVR's contained a subset of the data that a District 4 ballot contains. Upon starting the recount on January 6, 2014 around 11 :OOam, Contestant relayed to the Travis County Clerk and the Recount Committee, that the lack of providing printed images ofballots cast were a violation of TEX. ELEC. CODE§ 213.016. 34. Cast Vote Records are not "images ofballots cast." Ballots are defined in Texas Election Code Chapter 52, Subchapter C. 9 Section 52.075 of the Subchapter also allows the Secretary of 8 See attached Affidavit of Karen Renick 9 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's Pressley v. Casar OP Contest p.JO 12 State to "prescribe the form and content of a ballot" for electronic voting machines. 35. At the same meeting, Dr. Pressley stated that the pre-printing of recount records and starting the recount process was also a violation of213.016 and 213.009(c), respectively. A member of the recount committee responded to one of the recount watchers: "They started all this on Sunday [January 4, 2015]." 36. Pressley warned the County Clerk that the irregularities, of not printing the images of ballots cast, were in violation of the approved amended Petition for Recount and the CODE and was grounds for an Incident Report. Printing the CVR data files were in essence, reprinting the previous results obtained on Election night. A CVR is essentially nothing more than a tally sheet- it does not "count" the images of ballots- it merely reprints the tally. It was not recounting the source data of the images of the ballots cast, and as such it is not a meaningful check on the original count. 10 Using the CVR instead of ballot image also appears to violate Texas Election name." (e) A square shall be printed to the left of each line provided for write-in voting under Section 52.066(c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.) 10 Secretary of State is somewhat unclear on this issue. While "images of ballots cast" could be considered as a subset of the category "cast vote records," the CVRs in this case are not, in fact, images. In logical terms, the expression would be that just because all A are B does not mean all B are A. (Dogs are animals, but not all animals are dogs.) In its 2014 Electronic Voting System Procedures bulletin, posted online at the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8 - Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEC § 214.071): 1. The candidate requesting a recount may request that the recount be done electronically or manually. 2.For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 3.For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue. Pressley v. Casar OP Contest p.ll 13 Code 214.049 (e): "If electronic voting system ballots are to be recounted manually, the original ballot, rather than the duplicate of the original ballot, shall be counted." 37. Contestant requested to conditionally proceed with the Recount and re-print the available CVR data files. 38. Pursuant to TEX. ELEC. CODE§ 213.007, the machines, materials, programs, and records may be available to the Recount Committee. Pursuant to TEX. ELEC. CODE§ 213.013(h), each person entitled to be present at a recount is entitled to observe recount activities. Contestant was not allowed to view the full recount process and how the recount data was selected from the electronic voting machines. The CVR data files were identified, isolated and pre-selected prior to the beginning of the Recount. Contestant requested to view the source and properties of the CRV files, such as dates of the CRV files and origination, and was denied by the Recount Committee Member, the Travis County Director of Elections. Precinct Returns 39. Pursuant to TEX. ELEC. CODE§ 214.002, counting procedures for a recount shall be certified in the same manner as the original count. Pursuant to TEX. ELEC. CODE§ 4. The Recount Coordinator shall notify the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. 5. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. 6.If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. 7 .A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records. Pressley v. Casar OP Contest p.l2 14 65.014(b )(1), the procedures for preparing the original precinct returns must state the total number of voters who voted at the polling location as indicated by the poll list. Poll lists were not apparently reviewed by the Recount Committee during the recount. Dr. Pressley requested the poll lists to be reviewed and the number voters per precinct be reconciled with those documented on the polling location combination sign-in forms. Pressley requested those numbers be reconciled with the recount results, because of Early Voting voter lists discrepancies identified in the Recount Petition. The request was denied by the Travis County Clerk, the Chair of the Recount Committee, and the Director of Travis County Elections. The request was also specifically made prior to the recount in the Amended Petition for Recount. 40. Pursuant to TEX. ELEC. CODE§ 213.012, the committee chair prepared a report of the vote count. The chair wrote "The numbers of voters matched the number of ballots cast," and signed the report. During the Recount, the numbers of voters on voter lists were not reconciled with the ballots recounted by the chair. 41. On January 6, 2015, the recount was conducted and completed. After the recount, the totals were unchanged as compared to the original canvassed results. The totals were Laura Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast. 42. Reconciliation of voter signatures on rolls at polling locations and total ballots cast has not been completed. An election contest is the only available remedy to explore the discrepancy between the the number of ballots counted and the number voter names and signatures in the precincts. 43. Various records will need to be obtained from Travis County election officials to ensure that all the information is obtained and available to be analyzed to ensure that all votes that should have been counted were counted and, in the alternative, that all illegal votes which should not have Pressley v. Casar OP Contest p.l3 15 been counted are correctly removed from the vote totals. 44. The sum total of those voting irregularities exceeds the number of votes by which the election was decided. 45. Because no images ofballots cast can be retrieved, printed and count, Travis County cannot unequivocally determine the outcome of the election, and the election is void. As a matter of law, the Court must therefore order a new election. TEX. ELEC. CODE§ 232.041. VI. Petition Timely Filed 46. This Election Contest is brought in accordance with the provisions of TEX. ELEC. CODE § 232.008, which requires the Original Petition to be filed with the District Court not later than the 30th day after the date the official result of the contested election is determined. 47. On Tuesday, December 30th, the Mayor and City Council of Austin conducted an official canvass and certification of the Run Off results for all races on the December 16, 2014 ballot, including District 4. However a recount was conducted on January 6, 2015 and those results did not change. The deadline for submission of a petition in an election contest is January 29, 2015. Therefore, this petition is timely filed. VII. CONDITIONS PRECEDENT 48. All conditions precedent have been performed or have occurred. VIII. MOTION TO MODIFY STANDARD DISCOVERY PROCEDURES 49. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign an order shortening the time allowed for Contestee to comply with the discovery requests set forth below to no more than fifteen days. 50. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign an order shortening the time allowed for Contestee and third-party witnesses, voters, the City of Pressley v. Casar OP Contest p.l4 16 Austin and Travis County, to comply with the discovery requests set forth below in paragraph to no more than ten days, and that the period of notice required for Deposition on Written Questions be reduced to ten days. 51. Contestants further requests that the Court sign an order requiring that Contestee's response to the request for disclosure, and all other responses and answers in this case be hand- delivered, faxed or emailed. 52. The foregoing modifications to standard discovery procedures are necessary because of the accelerated procedures that apply to this primary election contest. For example, the trial would be over before the disclosures and documents were due if the standard discovery deadlines remain applicable. The foregoing reasons constitute good cause for the requested relief. REQUESTS FOR PRODUCTION 53. Contestant requests that the Travis County produce promptly for inspection and copying, all voter sign-in sheets of the City of Austin election, December 16, 2014, including early voting sign-in sheets. 54. Contestant requests that Travis County produce promptly for inspection and copying, all voter registration records, including but not limited to voter registration cards, that were validly accepted in the City of Austin, Texas, District 4, as of the date of the election, December 16, 2014. 55. Contestant requests that Travis County produce promptly for inspection and copying, all voter registration lists that were validly accepted in the City of Austin, Texas, District 4, as of the date of the election, December 16,2014. 56. Contestant requests that Travis County produce promptly for inspection and copying, all related absentee and/or mail-in votes of the election, December 16, 2014. Pressley v. Casar OP Contest p.l5 17 57. Contestant requests that Travis County produce promptly for inspection and copying, all related images of ballots cast of the election, December 16, 2014, including early voting. 58. Contestant requests that Travis County produce promptly for inspection and copying, all serial numbers of all MBBs per precinct used in December 16,2014 election. 59. Contestant requests that Travis County produce promptly for inspection and copying, all Names of personnel who programmed, serviced, or delivered the electronic voting machines for all 2013 and 2014 elections. 60. Contestant requests that Travis County produce promptly for inspection and copying, all names of any personnel, employed by the county or by any private contractor, who were employed in any capacity conducting or preparing for the conduct of the December 16,2014 election. 61. Contestant requests that Travis County produce promptly for inspection and copying, all physical addresses where records of all election data is located, paper or electronic. Physical address here shall be construed to include not only street addresses and room numbers, but physical locations on hard drives of electronic data. 62. Contestant requests that Travis County produce promptly for inspection and copying, all media upon which election data is located, including but not limited to floppy disks, hard disk's, CD-rom's, USB memory sticks, pcmcia flash memory cards and similar devices. 63. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16, 2014 election, all precinct voting machine results tapes, all central tabulation results, all incident reports and phone logs, all audit logs, including system logs and event logs from precinct voting machines and election management computers and any other computer used in the election, all File Allocation Tables for all computers used Pressley v. Casar OP Contest p.l6 18 in the election including precinct voting machines and election management computers, all records for voting machines serviced or replaced during the voting period, all cardkey access logs, or, if cardkeys are not used, written access logs for the rooms housing election management computers, and for rooms housing the voting machines and ballots. 64. Contestant requests that Travis County produce promptly for inspection and copying, all e-mail traffic sent to or from any electronic voting system owner, employee or contractor by any county employee or elected official for the past year, documents showing failures of voting machines, including but not limited to troubleshooter reports documenting malfunctions and repairs, chain of custody logs containing voting machine assignments to each polling place and the list of seal numbers affixed and checked in, access records for any laptops used during the 2014 City Council elections period, from November 1, 2010 to December 31,2014. 65. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election, Copies of return mail/vacancy/forwarded addresses lists for District 4 registered voters from 2012-2014. Include VID, address, name, date information was received. 66. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16, 2014 election, all written procedures for purging voters from Travis County Voter lists with respect to but not limited to deceased voters, felons, voters who have change of address, vacant addresses, etc. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election electronic copies of purged voter lists from 2010-2014, including Voter Identification ("VID"), address, name, Date of Birth, and date purged. 67. Contestant requests that Travis County produce promptly for inspection and copying, for Pressley v. Casar OP Contest p.l7 19 the December 16, 20 14 election the District 4 December Run Off Ballot by Mail ballots for all precincts and the ability to make scanned/electronic copies of selected ballots. Contestant specifically requests that she or her representatives be presented with the originals of these documents, in addition to any photocopies Travis County may wish to provide. 68. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election documents identifying the names, VID and addresses of District 4 voters that cast provisional ballots and those that were accepted and/or rejected for the December Run Off election. Contestant further requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election the "images ofballots" of the rejected ballots. 69. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election those documents containing voters names, VID, and addresses in District 4 that requested Ballot by Mail and those that returned Ballots by Mail for the December Run Off. 70. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16, 20 14 election any rejected requests for Ballot by Mail. 71. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16, 20 14 election, documents identifYing all election workers for all countywide polling locations, substations, and Central Counting for Early Voting, Election Day voting, Mobile voting (including but not limited to Election Judges, alternate judges, technicians, poll watches, etc.) for the December Run Off. 72. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16, 2014 election Tally sheets, dates, workers and returns reported for the polling locations and/or precincts that were audited for the number of voters and the number of ballots Pressley v. Casar OP Contest p.l8 20 cast for the December and November elections. 73. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16, 2014 election any lists or spreadsheets used by poll workers, technicians, and similar persons for documenting issues at each of the polling locations for the December Run Off (including but not limited to computer errors, mismatch in voter numbers, fleeing voters, other irregularities, etc.). 74. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16, 2014 election any manuals used for training Elections Division workers including but not limited to security, maintenance, operation, segregation, archival, backup, of all Hart Voting system equipment. 75. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16, 2014 election all spreadsheets, Logs and checklists used to document performance and adherence of Election Division workers to training manuals and procedures including, but not limited to, security, maintenance, operation, segregation, archival, backup of all Hart Voting system equipment for the November and December elections. 76. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16, 2014 election and internal and public reports from Elections Division Management regarding strengths and weaknesses in the current voting systems employed by Travis County and how they can be improved with newer models, technology, processes, and the like. 77. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election and the November 4, 2014 election, including early voting, all Zero Tapes for voting equipment (including Equipment ID) used that were printed more than 2 Pressley v. Casar OP Contest p.l9 21 hours prior for Early Voting, Mobile Voting, Election Day voting, and processing of Ballot by Mail ballots. 78. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election and the November 4, 2014 election, including early voting, all Zero Tapes for voting equipment (including Equipment ID) used that were printed directly prior to opening the polls for Early Voting, Mobile Voting, Election Day voting, and processing of Ballot by Mail ballots. 79. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election and the November 4, 2014 election, including early voting, all Results/Tally Tapes for voting equipment (including Equipment ID) used that were printed after closing the polls for Early Voting, Mobile Voting, Election Day voting, and processing of Ballot by Mail ballots. 80. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16, 2014 election, including early voting, all troubleshooting or incident reports for all Hart Voting System equipment for Early Voting, Mobile Voting, Election Day voting. Please include in production electronic copies of all certification records for all voting equipment and software. 81. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election and the November 4, 2014 election, including early voting, lists of the Mobile Ballot Boxes used, their ID's, and what polling location they were used at (including but not limited to each countywide polling location for Early Voting, Election Day voting, mobile polling location, and Ballot by Mail processing). 82. Contestant requests that Travis County produce promptly for inspection and copying, all Pressley v. Casar OP Contest p.20 22 documents showing communications from the City of Austin, the Secretary of State, and the Travis County Elections Division, Hart InterCivic, vendors, etc. regarding the District 4 December Run off Elections including but not limited to emails, memos, correspondence, texts, IM's, video conferencing, Power Points, dated from 1-1-2015 through the current date. 83. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election and the November 4, 2014 election, including early voting, all correspondence from the Secretary of State regarding administrative waivers for the November and December elections in Travis County. 84. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election and the November 4, 2014 election, including early voting, any documents identifying those associated with the District 4 Recount (including but not limited to committee members, managers, workers, technicians, etc.) and their titles, roles, and date and hours worked from the dates 1/2- 1/6. 85. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election and the November 4, 2014 election, including early voting, any documents showing contacts with Hart InterCivic and Travis County relating to the preventive maintenance, operation, and duties of the Travis County to ensure no voids in warranty occur for all components of the Hart Voting Systems (including but not limited to hardware and software for computers, eSlate, MBB, JBC, Tally, Rally, SERVO, etc.). 86. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election and the November 4, 2014 election, including early voting, all Hart InterCivic operating instruction manuals for the major Hart Voting System components: Tally, SERVO, eSlate, JBC, Rally, MBB, etc. Pressley v. Casar OP Contest p.21 23 87. Contestant requests that Travis County produce promptly for inspection and copying, for the December 16,2014 election and the November 4, 2014 election, including early voting, any documents showing respective and relevant identification numbers and/or serial numbers for all the Hart equipment (Tally, SERVO, eSlate, JBC, Rally, MBB, etc.) used in the November and December election for Early Voting, Election Day voting, Mobile Voting, and processing Ballot by Mail ballots. IX. ELECTION CONTEST-SPECIAL LAWS AND RULES APPLY 88. In order that Contestee not be left unaware of the special shorted rules that apply in this case, Contestants set forth the following excerpt from the Texas Election Code: Sec. 231.004. DISQUALIFICATION OF DISTRICT JUDGE. (a) The judge of a judicial district that includes any territory covered by a contested election that is less than statewide is disqualified to preside in the contest. (b) If a contest is filed in which a judge is disqualified under Subsection (a), the district clerk shall promptly call the filing to the attention of the judge. The judge shall promptly request the presiding judge of the administrative judicial region to assign a special judge to preside in the contest. (c) A judge who resides in the territory covered by a contested election is not eligible for assignment as a special judge for the contest. Sec. 233.007. FILING PERIOD FOR ANSWER. (a) A contestee must file an answer to the contestant's petition not later than: (1) 10 a.m. of the 1Oth day after the date of service of citation on the contestee or 10 a.m. of the fifth day after the date the official result of the contested election is determined, whichever is later, if the contested election is less than statewide; or (2) 10 a.m. of the 20th day after the date of service of citation, if the contested election is statewide. (b) The citation must command the contestee to answer by the specified deadline. Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. X. REQUEST FOR RELIEF 89. The contestants seeks relief under the Texas Elections Code, Chapter 232, and ask that the Court declare that the election results cannot be determined under Election Code Section Pressley v. Casar OP Contest p.22 24 232.041 ask that the Court order a new election. 90. The contestant requests a new election using paper ballots based on the limitations that Travis County employes a hardware and software configuration of the Hart Voting Systems, that cannot produce an image of a ballot cast, in violation of state law. 91. Therefore, based on the foregoing, the contestant requests that the contestee be cited to appear and answer, and that the Court grant the relief sought by the plaintiff and award it attorney fees, prejudgment and postjudgment interest, costs of suit, and all other relief, in law and in equity, to which it may be entitled. Respectfully submitted, David Rogers LAW OFFICE OF DAVID ROGERS By: /s/ David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836- Telephone 512-201-4082- Facsimile Email: Firm@DARogersLaw.com Attorney for Contestant Dr. Laura Pressley Pressley v. Casar OP Contest p.23 25  4/16/2015 9:15:02 AM Velva L. Price District Clerk Travis County D-1-GN-1S-00037 4 No. D-1-GN-15-000374 LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § § GREGORIO "GREG" CASAR § Contestee § OF TRAVIS COUNTY, TEXAS § § 20lst JUDICIAL DISTRICT CONTESTANT'S NOTICE OF DESIGNATION OF LEAD COUNSEL TO THE HONARABLE JUDGE OF SAID COURT: Now comes Laura Pressley, herein and hereby notifies the Court and the Parties that she has desigmited Mark Cohen as her Lead counsel to represent her in this case. David Rogers will remain in the case as her Co- CounseL Respectfully Submitted, Mar SBN:04508400 805 w. 10th, #100 Austin, Texas 78701 (512) 474-4424 Phone (512) 472-5444 Facsimile mark@cohenegalservices. com ATTORNEY FOR CONTESTANT CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing has been served by efile and/or facsimile to the following persons on this 16th day of April, 2015. Charles 'Chuck' Herring Jr. 09534100 chet:ring@hening-irwin. com Jess Irwin- 10425700 j ess@herring-irwin. com Lauren Ross- 24092001 laurenbross@herring-irwin.com Hening & Irwin, L.L.P. 1411 West A venue, Ste 100 Austin, TX 78701 477 Phone: 512-320-0665 Fax: (512) 519-7580 Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002- Facsimile ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR MarkC hen / 478  1 1 CAUSE NO. D-1-GN-15-000374 2 LAORJ\ PRESSLEY, IN TEE DISTRICT COURT Cc-ntestant, 3 TRl\,VIS COcTNTY, TEXAS 4 Contestee. 201ST JUDICIAL DISTRICT 6 7 8 ***************************************** 9 ORAL AND VIDEOTAPED i:JEPOSITION OF 10 LAURA" PRESSLEY 11 April 16, 2015 12 ************** ************************** 13 14 15 ORAL AND VIDEOT}\l?ED DEPOSITION OF LA:Jill\ PRESSLEY, 16 produced as a witness at the instance of the Contestee, 17 and duly sworn, was taken in the above-styled and 18 numbered cause on the l6ti' of Apri , 2015, from 19 9:39 a.m. to 3:52p.m., before Heidi t"!orrison, CSR, RPR, 20 Certified Shorthand Reporter in and for the State of 21 Texas, reported by computerized stenot.ype machine at the 22 offices of Travis County Clerk's Office, Conference Room 23 222, 1000 Guadalupe, Austin, Texas 78701, pursuant to 24 the Texas Rules of Civil Proced-Lln.o and the sions 25 stated on the record or attached hereto. 578  VIDEOTAPED DEPOSITION OF LAURA PRESSLEY CONDUCTED ON THURSDAY, APRIL 16, 2015 105 1 Q roughly. 11 : 4 7 :50 2 A We had many volunteers. We had many paid 3 staff. I don't have the exact number. Maybe ten. 4 Q But it's so any one of the ten could have 5 gone down to speak at council and say we don't 11:48:06 6 think you should close Highland Mall" or "We object to 7 it" or "We think you should do something different." 8 Any one of your ten on your campaign staff could have 9 done that? 10 A We could have. 11:48:18 11 Q And no one did it, as far as you know? 12 A No. 13 Q Now, you say in your pleading that somebody 14 complained about the closing of the location? 15 A Yes. 11:48:31 16 Q Who complained? 17 A Well, we had people complain about -- 18 Q I want names. 19 A Oh, you want names. So I don't have the names 20 ln front of me. I have not don't have my records in 11:48:46 21 front of me for the names. 22 Q Does your lawyer have a list of the names? 23 A No. He does not have a list of names right 24 now. 25 Q I said he and pointed at him. You have two 11:48:57 PLANET DEPOS 888.433.3767 I WWW.PLANETDEPOS.COM 603  VIDEOTAPED DEPOSITION OF LAURA PRESSLEY CONDUCTED ON THURSDAY, APRIL 16, 2015 114 1 MR. COHEN: If you asked 11:56:11 2 MR. HERRING: I've asked the question-- 3 MR. COHEN: I know. 4 MR. HERRING: You haven't read them. 5 MR. COHEN: And I haven't read them yet. 11:56:14 6 I don't mean to be tricky. 7 MR. HERRING: Let's ask the-- the other 8 guy. 9 MR. ROGERS: If I can get it, I'll get it 10 to you. 11 :56 : 21 11 Q (By Mr. Herring) Okay. Anybody else? 12 A At this time, no. 13 Q Now, of those people you referred to, can you 14 tell me how many of them, if you understand it, were 15 prevented from voting? 11: 56: 3 6 16 A I do not know right now. 17 Q You --- can you tell me the name of anyone who 18 was prevented from voting by the change in a voter 19 location? 20 A We gave a list of potential voters that did 11:56:47 21 not vote in the runoff. And so those are -- that's a 22 a partial list. We've provided that. 23 Q I think my question's a lot narrower than what 24 you just answered. My question is: Do you have a list 25 of people -- not the broad -- the broad list of people 11:57:10 PLANET DEPOS 888.433.3767 I WWW.PLANETDEPOS.COM 604  VIDEOTAPED DEPOSITION OF LAURA PRESSLEY CONDUCTED ON THURSDAY, APRIL 16, 2015 115 1 who might not have voted, not the list of people who 11:57:14 2 told somebody, "Well, I'm upset or confused by this 3 change of one of these voting locations," but people who 4 actually were prevented from voting because of the 5 change in one of those three? 11:57:28 6 A So right now, at this time, I don't have a 7 list. 8 MR. COHEN: How much more do you think 9 you have? 10 MR. HERRING: A good bit. 11:57:39 11 MR. COHEN: Good bit? Okay. So 12 !'1R. HERRING: What time? 13 MR. COHEN: It's 12:00. I can't go too 14 much longer. 15 MR. HERRING: Let's take a break. You 11:57:46 16 want a lunch break? 17 MR. COHEN: 1'\lould we? 18 MR. HERRING: Up to you. 19 MR. COHEN: Yeah. 20 MR. HERRING: I'll go straight through, 11:57:48 21 but we'll take a break if you want to. 22 MR. COHEN: Well, that's why I asked you. 23 If it's going to be an hour, I can stand it. If it's 24 going to be 25 MR. HERRING: It's going to be more than 11:57:54 PLANET DEPOS 888.433.3767 I WWW.PLANETDEPOS.COM 605  VIDEOTAPED DEPOSITION OF LAURA PRESSLEY CONDUCTED ON THURSDAY, APRIL 16, 2015 134 1 election. You know you knew about it before the runoff? 13:42:17 2 A Yes, yes, yes. 3 Q And how did you become aware of it? 4 A I don't recall. 5 Q Did you discuss it with Mike Winn? 13:42:30 6 A I don't recall. I remember getting i t through 7 e-mail from one of our supporters. And I don't remember 8 the date I got it through e-mail. 9 Q Do you know whether zero tapes were ever 10 printed? 13:42:49 11 A When? 12 Q For-- let's say for the runoff election. 13 A I don't know if they were ever printed. We've 14 not we've asked for that in discovery, so we're 15 looking forward to that data. 13:43:01 16 Q Get that back so I don't lose it. 17 So you don't know if they were printed, 18 or if they were printed, where they were printed or 19 when? 20 A I don't know. That's right. 13:43:12 21 Q And then, similarly, you have an allegation 22 that no results 23 A Yes. 24 Q -- tapes were printed at the countywide 25 locations when closing the polls? 13:43:24 PLANET DEPOS 888.433.3767 I WWW.PLANETDEPOS.COM 606  4/20/2015 11 :25:47 PM Velva L. Price District Clerk Travis County D-1-GN-15-000374 No. D-I-GN-15-000374 LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § § GREGORIO "GREG" CASAR § Contestee § OF TRAVIS COUNTY, TEXAS § § 201 st JUDICIAL DISTRICT CONTESTANTS' FIFTH AMENDED ORIGINAL CONTEST OF ELECTION, MOTION TO MODIFY DISCOVERY DEADLINES, AND REQUESTS FOR DISCLOSURE FOR THE OFFICE OF THE AUSTIN CITY COUNCIL, DISTRICT 4 TO THE HONORABLE JUDGE OF SAID COURT NOW COMES, Laura Pressley, Contestant, and files this Fifth Amended Original Petition for Election Contest for the Office the Austin City Council, District 4 (Petition) against Gregorio "Greg" Casar, Contestee.! This Amended Pleading is in response to the court's order sustaining special exceptions to which the Contestant disagrees. It is filed assuming the Court's Order providing the April 20, 2015 Deadline to replead assumed Contestant would have reviewed documents ordered to be produced by the Travis County Clerk's Office. This has not happened yet so some of the information the Court assumed in its order Contestant would have available in time to completely meet the order on special exception is still not available at this time. Contestant anticipates filing another amended pleading with more specific allegations as soon as it has had sufficient time to do so. The election was held on December 16, 2014 and canvassed 1 This Fifth Amended Petition is filed in Response to Contestee Gregorio "Greg" Casar's Answer and Special Exceptions to Contestant's Original Contest of Election, and the Court's order of April 13,2015 regarding those Special Exceptions. Pressley v. Casar Fifth Amended OP Contest p.l 339  on December 30, 2014. In support of this election contest, Dr. Pressley will respectfully show as follows: I. DISCOVERY 1. The contestant intends that discovery be conducted under level three, a custom discovery plan for election contest devised with the approval of the court. II. REQUEST FOR DISCLOSURE 2. Pursuant to Texas Rule of Civil Procedure 194, and the motion set forth below, the plaintiff requests that the defendants, within thirty days of the service of the Original Petition, disclose the information and material described in Rule 194.2. III. SUMMARY 3. This contest is based on the facts that illegal votes were counted, election officers prevented eligible voters from voting, election officers failed to count legal votes, and election officers made mistakes that resulted in an election outcome which is not the true outcome. Thus, deprivation of voting rights of voters in several high population polling locations which were improperly closed, irregularity in votes counted or not counted, and a failure to comply with the Texas Election Code requirement for storing, retrieval and printing of "images of ballots cast" in electronic voting machines occurred and negatively affected the outcome for Pressley. Particularly, the improper closure, consolidation and moving of the voting locations alone appears to have reduced the vote considerably more than the margin reported in the canvass of the election. 2 4. Additionally, Travis County uses electronic voting machines from Hart Intercivic to conduct 2This is sufficient to "materially affect[] the election results." Gonzalez v. Villarreal, 251 S.W.3d 763,773,777-78 (Tex. App.-Corpus Christi 2008, pet. dism'd w.o.j.) (quoting Tiller v. Martinez, 974 S.W.2d 769,772 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.) (emphasis added); accord Reese v. Duncan, 80 S.W.3d 650,655-56 (Tex. App.-Dallas 2002, pet. denied). Pressley v. Casar Fifth Amended OP Contest p.2 340 elections within the county.3 Pressley requests that the court compel Travis County election officers to print the "images of ballots cast" as required under the Texas Election Code. 4 (TEX. ELEC. CODE §213.016). Without these statutorily-required "images of ballots cast" it is impossible for the Court to determine the actual election outcome, as the only actual ballots - the mail-in ballots - are exactly and perfectly tied between the two candidates. The Travis County Clerk has asserted that the system Travis County uses cannot print "images of ballots cast." Images of ballots cast" is not the same as "cast vote records." The Court, consequently, must reject any "cast vote records" produced and tallied by such machines. The result of these multiple irregularities is that the result cannot be known, and the Court must order a new election. Dr. Pressley requests that such an election be timely set, and conducted in compliance with the Texas Election Code and the Secretary of State's regulations governing elections. 5. "The purpose of the election code is to ensure that the true will of the voters is 'fairly expressed' and that the evidence of that expression is 'properly preserved.' Prado [v. Johnson, 625 S.W.2d 368 3 Voters in different parts of the state utilize a number of different voting systems, all of which must first be certified by the Secretary of State. Tex. Elec. Code § 122.001, .031. ... Once a system is certified, local political subdivisions may adopt it for use in elections. Id. § 123.001. ... The eSlate, a paperless DRE manufactured by Hart Intercivic, is one of a handful ofDREs the Secretary has certified. See Voting Systems, Texas Secretary of State, http://www.sos.state.tx.us/elections/laws/votingsystems.shtml. Voters arriving at the polls in counties using the eSlate are given a unique access code. The voter enters the code into the eSlate, which then displays the ballot. Voters tum a dial to highlight their ballot choice and then press "enter" to make a selection. After a voter completes his selections, the eSlate displays a ballot summary page. If the voter's choices are correctly displayed, the voter presses the "cast ballot" button, and the vote is purportedly recorded. See Voter Instructions, Travis County, http://www.co.travis.tx.us/county_clerk! election!eSlate/pdfs/English_Flyer_ 050923. pdf. Travis County purchased the eSlate system in 2001 and has used it since 2003. Andrade v. NAACP of Austin, 345 S.W.3d 1,4,5-6 (Tex. 2011) (footnotes omitted.) 4 See attached Appendix 10, September 30, 2014 letter from Texas Secretary of State. In this letter, Keith Ingram, Director of Elections for the Texas Secretary of State's office, specifically states "in the [Hart Voting System], ballot images remain on the voting machines themselves for recounts, contests, and other post-election reviews until archived by the county for the following election." p.2, second to last paragraph, last sentence. Pressley v. Casar Fifth Amended OP Contest p.3 341 (Tex. Civ. App.--San Antonio 1981, writ dism'd w.o.j.»], 625 S.W.2d at 369-70." Gonzalez v. Villarreal, 251 S.W.3d 763, 778 (Tex. App.-Corpus Christi 20l3). The failures and mistakes illustrated in this Contest show that the will of voters was thwarted, the evidence of that expression was not properly preserved and thus, the true outcome cannot be determined. 5 6. While some actual ballots were preserved - the mail-in ballots, in which the candidates are perfectly tied - the vast majority of ballots and the evidence of the voters' intent were not preserved. According to the Travis County Clerk, there are no "images of ballots cast" that the court can review. Therefore, if "images of ballots cast" cannot be produced, we request the court to order a new election. IV. PARTIES 7. Contestant Laura Pressley is a resident of Austin City Council District 4, Travis County, Texas. She was a candidate in the Austin City Council District 4 Run Off Election on December 16, 2014. 8. Contestee Gregorio "Greg" Casar is a resident of Austin City Council District 4, Travis County, Texas. He was a candidate in the Austin City Council District 4 Run Off Election on December 16,2014. Casar has been served and has answered in this cause. 9. The election results were canvassed on December 30, 2014 and Mr. Casar was declared the victor. 10. A "manual recount" of all early voting, election day, provisional, and mailed-in ballots was attempted on January 6, 2015. 6 The mail-in ballots were exactly tied between the candidates, at 240 5 The requirement to preserve "images of ballots cast" in the statute is fundamental to preserving the evidence of the will of the voters. By failing to preserve that evidence, the County has destroyed evidence of the expression of the will of the voters and forced the court to call a new election. 6 Though the County Clerk termed the action a "manual recount," because the event as it occurred Pressley v. Casar Fifth Amended OP Contest p.4 342 each, for a total of 480 votes. 7 The attempted recount was a nullity and a real recount was made impossible in that the attempted recount violated state law and was incorrectly performed using of the "cast vote records" in lieu of "images of ballots cast" combined with the actual mail in ballots. Based on the counting of "cast vote records" and mail in ballots, as could be predicted, the invalid recount did not change the reported results of the election and the original declaration of Mr. Casar as the victor for the run off election did not change. Casar was sworn into office on January 6, 2014. He has been notified of the filing of this action by a delivery of a copy of this Petition in accordance with TEX. ELEC. CODE § 21.003(b). V. JURISDICTION AND VENUE 11. Jurisdiction and venue in this case are proper and mandatory in Travis County because the office being sought is for a district entirely within the boundaries of Travis County under the Texas Elections Code, Section 232.006. VI. FACTS Travis County Election Officials Prevented Eligible Voters from Voting 12. City of Austin District 4, comprised of 18 voting precincts, is located entirely in Travis County. Early Voting and Election Day was December 1-12, and 16, 2014, respectively. Voters seeking to vote at high-volume locations were improperly denied the right to cast their vote. Disenfranchisement of District 4 voters occurred as a result of the closing of the highest volume District 4 voting locations in the Run Off during Early Voting and Election Day, December 16, did not satisfy statutory criteria, Pressley does not concede that what occurred was actually a statutory manual recount as defined by the Texas Election Code. 7 These were the only actual ballots counted during the "manual recount." The mail-in ballots were more than 10% of the total ballots cast in the election. The allegation of the county is that, despite the perfect tie in mail-in ballots, Casar beat Pressley by a 2-to-1 margin in the remaining ballots. This is a variation in election results that is highly improbable and unrecorded to Contestant's knowledge. Pressley v. Casar Fifth Amended OP Contest p.5 343 2014. 13. The Highland Mall voting location at 6601 Airport Blvd was open during the General Election for Early Voting and Election Day on October 20-31, and November 4, 2014, respectively and saw some of the highest volume of voters in District 4. This location was the designated voting location for Precinct 142 and was an important and convenient voting location for Precinct 156 and others nearby. It was closed for the December Run Off election for Early Voting and Election Day. It was moved to the far less convenient Travis County Tax Office at 5501 Airport Blvd (See Appendix 1). The Pressley campaign received multiple reports of voters being upset and confused because the voting location had been moved. 14. Specifically, reports were received by Contestant on Election Day, December 16th , from voters while Contestant was phone banking. District 4 voter, Thomas Crawford showed up at Cooke Elementary to vote, and reported no signs were posted to indicate where the polling location had been moved. Similar reports were received by Brad Parsons, a campaign volunteer, who was phone banking on Election Day. Campaign supporter, Matthew Palmer reported that Highland Mall was closed and it was a problem for voters. Based on information and belief, Contestant asserts that said confusion was a result of failure to post, or premature removal of, a notice at Cooke Elementary, Precinct 222, of the relocation of the polling place. 15. Upon reviewing voter rolls for Pct 156 and 142, published by Travis County, Appendix 2 shows names, addresses and precincts of 365 voters of Pcts 156 and 142 that we allege were disenfranchised. These 365 voters were identified based on their voting histories which include but are not limited to voting in General Elections, City of Austin Council Elections, and Primary Elections. The extensive voting histories of these 365 voters show they are the most consistent voters in Precincts 142 and 156 and surprisingly did not vote in the City Council Run off election Pressley v. Casar Fifth Amended OP Contest p.6 344 in 2014. In addition, the Pressley campaign verified additional voters, multiple times, as very strong Pressley supporters (by block walking/phone banking/yard signs posted), who were waiting to vote on Election Day. These voters total 73. Therefore, Contestant alleges a total of 438 voters in Precincts 142 and 156 were disenfranchised. 16. To enhance the accuracy of this list, additional information (detailed voter information of precincts, ballot styles, voting histories, and voting locations for those voting in the General and Run off elections), has been requested through discovery from Travis County. Upon receipt and review of discovery responses from Travis County, Contestant may identify additional voters and improve the accuracy of this list. Also, for trial, Contestant is in the process of collecting affidavits regarding disenfranchisement specifics from these voters. 17. The second highest voting precinct and polling location in District 4 for the November General Election was Precinct 222 at Cooke Elementary located at 1511 Cripple Creek. That Precinct is comprised of more than 25% senior voters who are 60 years and older. It was closed during Election Day for the December Run Off (See Appendix 1). It was combined with the fourth lowest voter turnout location in District 4, Precinct 268, Grant AME Worship Center at 1701 Kramer Lane. 18. The Pressley campaign received reports from Rob Hale, a resident and voter in Pct 222. As usual, he and other Pct 222 voters showed up to Cooke Elementary for the December Run Off on Election Day and were confused as to why Cooke Elementary was closed for voting for Pct 222. He helped senior voters look up an alternative location in which to vote on Kramer Lane. When he arrived at the Kramer location, he waited for the senior voters and they did not arrive. In addition, he had a relative that showed up at Cooke Elementary to vote, and the relative reported no signs were posted to indicate where the polling location had been moved. Pressley v. Casar Fifth Amended OP Contest p.7 345 19. Upon reviewing Pct 222 voter rolls published by Travis County, Appendix 3 shows names, addresses and precincts of 248 voters that we allege were disenfranchised. These 248 voters have voting histories which include but are not limited to voting in General Elections, City of Austin Council Elections, and Primary Elections. The extensive voting histories of these 248 voters show they are the most consistent voters in Precinct 222 and they surprisingly did not vote in the City Council Run off election in 2014. In addition, the Pressley campaign verified additional voters, multiple times, as very strong Pressley supporters (by block walking/phone banking/yard signs posted), which were waiting to vote on Election Day. These voters total 71. Therefore, Contestant alleges a total of319 voters in Precinct 222 alone were disenfranchised. 20. To enhance the accuracy of this list, additional information (such as detailed voter information such as precincts, ballot styles, voting histories, and voting locations for those voting in the General and Run off elections), has been requested through Discovery from Travis County. Upon receipt and review of Discovery responses from Travis County, Contestant may identify additional voters and improve the accuracy of this list. Also, for trial, Contestant is in the process of collecting affidavits regarding disenfranchisement specifics from these voters. 21. Another voting location open during the General Election but closed for the District 4 Run off was Precinct 133, which was open for the General Election at Blanton Elementary located at 5408 Westminster. It was combined with the non-District 4 Precinct 130, at Memorial UMC. 22. The Pressley campaign received reports from Pct 133, Election Judge, Arthur Turner, a resident and voter in Pct 133. During Election Day, voters from Pct 133, showed up at Blanton Elementary to vote in the Run Off and were confused and upset as to why Blanton Elementary was closed for voting for Pct 133. Mr. Turner had multiple calls from upset voters who did not know where to vote. Pressley v. Casar Fifth Amended OP Contest p.8 346 23. Upon reviewing Pct 133 voter rolls published by Travis County, Appendix 4 shows names, addresses and precincts of 116 voters Contestant alleges were disenfranchised. These 116 voters have voting histories which include but are not limited to voting in General Elections, City of Austin Council Elections, and Primary Elections. The extensive voting histories of these 116 voters show they are the most consistent voters in Precinct 133 and they surprisingly did not vote in the City Council Run off election in 2014. 24. To enhance the accuracy of this list, additional information (such as detailed voter information such as precincts, ballot styles, voting histories, and voting locations for those voting in the General and Run off elections), has been requested through discovery from Travis County. Upon receipt and review of discovery responses from Travis County, Contestant may identify additional voters and improve the accuracy of this list. Also, for trial, Contestant is in the process of collecting affidavits regarding disenfranchisement specifics from these voters. 25. Three additional polling locations were closed for the Run off election for District 4 (Pcts 209, 258, and 260). Upon reviewing the voter rolls for these precincts published by Travis County, Appendix 5 shows names, addresses and precincts of 235 voters that we allege were disenfranchised. These 235 voters have voting histories which include but are not limited to voting in General Elections, City of Austin Council Elections, and Primary Elections. The extensive voting histories of these 235 voters show they are the most consistent voters in Precincts 209,258, and 260 and they surprisingly did not vote in the City Council Run off election in 2014. 26. The total number of closed/moved/combined precincts in District 4 for the Run off comes to a total of 7 Precincts out of 17 voting precincts in District 4. Therefore, 41 % of District 4's polling locations were closed, combined or moved for the December Austin City Council Run off. Appendix 6. This caused a much lower than expected turnout for Election Day for District 4. Pressley v. Casar Fifth Amended OP Contest p.9 347 27. To summarize, typically Election Day and Early Voting tum out is very similar. Early Voting for the District 4 Run Off race saw approximately 2,646 voters and on Election Day only 1,771 turned out. Due closing/ moving/ combining of 41 % of District 4 Polling locations, voters were confused and disenfranchised and Election Day voters were about 875 short. 28. The County's actions of closing multiple, key, high volume polling locations had a disproportionate effect on minorities, working people, and elderly voters of District 4-one of the Hispanic-opportunity districts in the City of Austin. Four of Pressley's strongest voting locations/boxes that showed over 50% for Pressley (222, 156, 133, 258), as evidenced by the only remaining ballots, Mail in Ballot results, were moved or closed for the Run Off election (See Appendix 6). 29. As a result of these aggressive and improper closures, voters registered at those locations were improperly denied the right to cast their vote. The closure of these pro-Pressley precincts was unfair and undermined the true outcome of the election. A conservative count of disenfranchised voters resulting from the improper closure/moving/combining of precincts 133, 142, 156, 209, 222, 258, and 260 is 1,108. This value is consistent with the ]ow voter turnout on Election Day as compared to Early Voting. Upon evaluation of discovery responses from Travis County, a more accurate number may be provided. Also, for trial, Contestant is in the process of obtaining testimony regarding disenfranchisement specifics from these voters. Travis County Ejection Officials Allowed Ineligible Voters to Cast Votes (Illegal Votes) 30. A thorough review the 4,414 Early Voting and Election Day voter names and addresses with returned mail, and the National Change of Address database (NCOA), and voter registration Pressley v. Casar Fifth Amended OP Contest p.lO 348 records available online, 64 of the voters had moved, no longer resided in District 4, or had some other residency issues, and may not have been eligible to vote in the District 4 Run Off Election. Therefore, at least 64 ineligible voters cast votes in this election due to residency issues. A more detailed review of the voter registrar information provided by Travis County is needed with regard to Provisional Ballots, statements of residence, etc. Upon evaluation of Discovery responses from Travis County, a more accurate number may be provided. A list of the 64 voter's Voter ID's and precincts are found in Appendix 7. 31. \Vith regard to additional categories for illegal votes, it is unlikely that voters that are not interested in voting in a General Election will be interested in voting in a Run Off election. After reviewing Travis County voter rolls (https:lltax-office.traviscountytx.gov/voter-data), for the General Election and the Run Off, 156 voters voted in the Run Off that did not vote in the General Election. Many are Ballot by Mails and a large number voted at specific locations. These are potentially illegal votes and we ask the court to allow Contestant time to review and evaluate various Discovery responses from Travis County voting records including, but not limited to, Ballot by Mail, voter registration cards, polling location sign in sheets, and residency records, etc. to validate the votes were cast legally. A List of these voters are found in Appendix 8. More Ballots Than Voters During Early Voting (IHega} Votes) 32. On Tuesday, December 30, 2014, the Mayor of Austin and the Austin City Council conducted an initial official canvass and certification for the Election Day results for all races on the ballot, including City of Austin District 4. The canvassed and certified totals for District 4 were Laura Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast. 33. The canvassed results were inconsistent with the Early Voting voter reports. Travis County reported that 2,651 total voters voted in Early Voting in District 4. Reviewing the voter ID's, 437 Pressley v. Casar Fifth Amended OP Contest p.ll 349 entries existed for those submitting Ballot by Mail (BBM). There were at least 28 duplicate entries for BBM. At least 28 mail-in votes appear to have been counted twice or three times. See Appendix 6, Duplicate Ballot by Mail Entries. 34. Once duplicate BBM's were removed, 2,622 voter names remained that voted in Early Voting according to the Early Voting lists from Travis County that were distributed prior to Election Day, December 16, 2014. Based on Travis County's Canvassed and Recount results for those that voted for Greg Casar, or Laura Pressley or Under Voted, the total number of ballots cast for Early Voting is 2,701. Therefore, there are 80 more ballots than voters for Early Voting. These 80 extra ballots are distributed among 15 of the 18 precincts of the District 4 Race. 8 (One precinct, with one eligible voter, showed no votes.) See Appendix 7, Early Voting Discrepancies. Statistical Improbabilities 35. An analysis of the voting results show a pattern of mathematical anomalies which is highly unlikely to occur naturally. (See Appendix 8, pages 1-3.) For the nine (9) precincts in District 4 with more than 200 voters,9 the highest volume of voters, the ratio of votes that the Contestant received compared to Contestee is the same ratio in the November General Election (with a total of 8 candidates) as it was in the December Run Off Election (with 2 candidates), 35.1 % vs 35.0% respectively. In addition, the average of the percentages of the unweighted precincts that the Contestant received compared to Contestee, in the November General Election and the December Run Off, are also equal at 35.1 % and 35.1 %, respectively. No other Council race in the history of electronic voting in the City (2003 - current) has shown such a tight non-variation between a 8 In the original petition, this number was identified as 79. One precinct, 211, had a single vote undervote. See Appendix 7, Early Voting Discrepancies." Additionally, there are an unknown number of ballot by mail overvotes, invalid voter registrations, ineligible voters and election day overvotes. 9 These precincts account for more than 80% of the vote in the District. Pressley v. Casar Fifth Amended OP Contest p.12 350 general election and a run off. Since 2003, of the total eleven Council races that went into a run oft: seven races have greater than lOx variation and 3 show greater than 100x variation. See attached Appendix 8, Comparison of Election Returns. 36. The fact that so many precincts showed exactly the same and unchanged results for the General Election and the Run Off is indicative of mistakes made by Travis County election officers. These mistakes are likely related to and are due to, but not limited to, the handling of voter hardware, software, etc. 37. From Travis County Voter Rolls, though over 4,000 voters were different between the General and Run Off elections, the unique and unlikely occurrence that the results remain unchanged and which has not occurred in the last 11 years in Travis County for any other Run Off candidate or election is highly improbable. The occurrence is surprising, is strictly isolated to District 4, and is indicative of human error. Because so many high volume District 4 precincts showed exactly the same percentage results for Pressley and Casar, it is possible that some memory cards or counting software used in the General Election were mistakenly reused in error for the Run Off. 38. Contestee Casar alleges the factual and statistically improbable election results for the General Election and the Run Off "are unsurprising." This is indicative of emotional wishful thinking rather than a clear-eyed analytical assessment of evidence and data. Additionally, Casar offers vague and irrelevant references and personal attacks from a politically biased news source, the far-left Austin Chronicle. The Chronicle endorsed and directly campaigned for Contestee Casar. Additionally, the Chronicle has little to no scientific expertise on statf that is qualified to offer expert testimony on complex topics of mathematics, chemistry, physics and engineering, which they attempt to report and critique. 39. Conversely, Contestee Dr. Laura Pressley holds a Ph.D. in Physical Chemistry from the Pressley v. Casar Fifth Amended OP Contest p.13 351 University of Texas at Austin and holds a minor in mathematics and has worked in the semiconductor and technology industry as a process engineer and senior manager in Austin for over 26 years. She has led defect and yield enhancement engineering teams in Austin, Asia, and Europe and is an expert in mathematical and statistical data analysis. She has successfully led projects that have reduced corporate waste on the order of multimillion dollars, quarter after quarter. See Politifact article that that discusses Dr. Pressley's chemistry and engineering related statements made during the campaign: http://tinyurl.comllmey73z. Her community involvement has included being the Chair Elect of the SafePlace, on the Executive Committee of the Austin Neighborhoods Council, President of her neighborhood association and a team leader of the Restore Rundberg Revitalization Team. Her main campaign messages were related to reducing waste and debt at City Hall and implementing a City of Austin Homestead Exemption. Attached is a 2014 campaign mailer that compares Dr. Pressley's experience and City Council policy goals with Contestant Casar (Appendix 9.) Procedures Were Violated and Illegal Votes Appear to Have Been Counted 40. Several election safeguards and procedures defined by the Legislature and the Secretary of State that are intended to prevent human errors were mistakenly not followed by Travis County. The mistakes and failure to adhere to the Secretary of State's procedures led to and caused illegal votes to be counted. 41. With regard to the counting of illegal votes, during Early and Election Day Voting, many election irregularities occurred and mistakes were made by Travis County election officers. According to Travis County Election Division director Michael \Vinn, no Zero Tapes 10 were printed for machines to verify that directly prior to the first votes being cast, no votes were pre-registered on 10 A "zero tape" is run on the Judge's Booth Controller ("JBC") to ensure no votes reside in the system. When voters arrive they are given a JBC-generated PIN number that they enter on the eSlate. They then vote and the votes are stored on the eSlate, Mobile Ballot Boxes (MBB), and JBC. Pressley v. Casar Fifth Amended OP Contest p.14 352 the machines.i1 This failure is in violation of Texas Secretary of State requirements. The Travis County officers violations affected the outcome of the election because votes may have remained on the voting equipment from prior activities. See Texas Secretary of State Advisory 2012-03, 6(g)(vi), 6(k)(iii) http://www.sos.state.tx.us/elections/laws/advisory20 12-03.shtml (last visited 1-29- 2014). 42. Given so many high volume District 4 precincts showed exactly the same percentage results for Pressley and Casar, it is possible that some memory cards or counting software used in the General Election were mistakenly reused in error for the Run Off. (See Appendix 8.) 43. In addition, with regard to illegal votes being counted, on Election Day, no results tapes were printed at the countywide locations when closing the polls. The SOS procedures require the printing of closing results tapes, also. This failure is in violation of Texas Secretary of State requirements. The Travis County officers violations affected the outcome of the election because votes may have remained on the voting equipment from prior activities. See Texas Secretary of State Advisory 20] 2-03, 6(g)(vi), 6(k)( iii) http://www.sos.state.tx.us/elections/laws/advisory20 12- 03.shtml (last visited 1-29-2014). On Election Day, Pressley campaign official poll watchers were denied access to results tapes for signing purposes at two polling locations, Gus Garcia and Randall's at Research Blvd. Official poll watchers that were denied access are the following: a) Rae Nadler-Olenick was denied access to Results/Tally Tapes on December 16, 2014 at polling location Randalls at Braker and Research. Results Tapes were not printed as required by Secretary of State procedures This affected the 11 Travis County received a waiver of the state requirement for such tapes for the general election only in a letter dated September 30,2014, based on the burden of the extremely long statewide ballot. See attached Appendix 10, September 30, 2014 letter from Texas Secretary of State. The run-off election ballot includes only City Council and Mayoral candidates. The run-off was restricted to two candidates in the races requiring a run-off, unlike the first round, in which as many as twelve candidates participated in some races. Pressley v. Casar Fifth Amended OP Contest p.15 353  outcome of the Run off election in that errors in counting, ballots cast, and voters signing in, and maintaining security protocols may have occurred. b) Paul Williams was denied access to Results/Tally Tapes on December 16,2014 when the polls closed at Gus Garcia polling location. Results Tapes were not printed as required by Secretary of State procedures 2: This affected the outcome of the Run off election in that errors in counting, ballots cast, and voters signing in, and maintaining security protocols may have occurred. c) Sergio and Claire Martinez were denied access to Dobie Middle School, SubStation on December 16, 2014 and were not able to monitor for election materials coming from Gus Garcia. This affected the outcome of the Run off election in that errors in counting, maintaining security protocols may have occurred. 44. This violates Secretary of State regulations requiring that poll watchers be allowed to sign such tapes. "The presiding election judge, an election clerk, and not more than two watchers, if one or more watchers are present, shall sign the results tape(s)." The Travis County officers violations affected the outcome of the election because votes may have remained on the voting equipment from prior activities or excess votes may have been added before or after the close of the polls and the lack of "images of ballots cast" makes the results impossible to verifY. Texas Secretary of State Advisory 2012-03, 6(k)(i) http://www.sos.state.tx.us/elections/laws/advisory2012- 03.shtml (last visited 1-29-2014). 45. On Election Day, Pressley campmgn official poll watchers not allowed access at the polling substation at Dobie Middle School, where the most important ballots (for the Graham, Gus Garcia, and Virginia Brown precincts) were placed in transit to central counting. Those boxes were the largest and strongest Pressley boxes, as evidenced by the ballot by mail recount results. (See Appendix 3.) This failure is in violation of Texas Secretary of State requirements. The Travis County officers' violations affected the outcome of the election because votes may have remained on the voting equipment from prior activities. See Texas Secretary of State Advisory 2012-03, 6(g)(vi), 6(k)(iii) http://www.sos.state.tx.us/elections/laws/advisory2012-03.shtml (last visited 1-29- 2014). Pressley v. Casar Fifth Amended OP Contest p.16 354 46. On Election Day, poll watchers were improperly denied access to Central Counting activities with Mobile Ballot Boxes ("MBB"), Tally activities, and the like. 12 This failure is in violation of Texas Secretary of State requirements. The Travis County officers violations affected the outcome of the election because votes may have remained on the voting equipment from prior activities or been added improperly later. See Texas Secretary of State Advisory 2012-03, 6(g)(vi), 6(k)(iii) http://w\\<.W.sos.state.tx.us/elections/laws/advisory2012-03.shtm1 (last visited 1-29-2014). 12 Hart's eSlate System Hart's electronic (DRE) voting system is known as eSlate. The eSlate system is comprised of several distinct components. The Ballot Origination Software System ("BOSS") is used by election officials to define and create individualized electronic ballots. Data is entered once into BOSS and then flows through all components of the eSlate system. The Mobile Ballot Box ("MBB") is a reusable, portable flash memory card. It is used to store and transfer election information. When inserted into the Judge's Booth Controller, the MBB supplies election information and ballot styles, it stores an electronic representation of how votes were cast. Once voting has concluded the MBB is removed and its contents are tallied by the Tally software. The Judge's Booth Controller ("JBC") is the "brain" that manages the system, enabling poll workers to know which voting booths are in use at any time. The JBC issues access codes for the voters' use. It can control up to 12 daisy-chained eSlate units. eSlate refers to the system generally and to the device that voters use to cast ballots, unless using paper ballots, in which case Ballot Now is used. The eSlate may be equipped with a disabled access unit ("DAU") for use by disabled voters. The eSlate units are physically connected to the JBC, which stores cast-vote records. Tally is a software application that reads, stores, and tabulates the cast-vote records from the MBB (the portable flash card that transferred the cast-vote records from the JBC). Tally tabulates all early voting, absentee, and election day results, and produces various reports. Rally is a software application that is capable of reading, storing, and transferring cast-vote data from polling places or collection centers with respect to early returns. The System for Election Records and Verification Operations ("SERVO") software is an election records archiving and asset management system. SERVO is designed to recover data from equipment in the case of a lost or damaged MBB. SERVO also is designed for various recount purposes. Ballot Now is a digital-scan paper ballot system that manages the printing, scanning, and resolution of mailed-in paper ballots. It also records the electronic cast vote records to an MBB to be read and tabulated with Tally. Pressley v. Casar Fifth Amended OP Contest p.l7 355  The Recount megal Votes Counted 47. Because of the previously noted, highly improbable statistical anomalies l3 , the duplicate Ballot by Mail entries, and the fact that there are more ballots than number of voters for Early Voting (overvotes), Contestant requested a manual recount of the District 4 Election with the goal of reconciling the discrepancies. 48. Contestant claims the recount evidence and findings are critically material to this case and the allegations are legally relevant to this election contest. 49. The recount failed to only count legal votes because "images of ballots cast" were not provided and counted. Printing the "cast vote record" or "CVR" data files was in essence reprinting the previous electronically counted results obtained on Election night. A CVR prints data from a data file to a template; it does not count the "images of ballots cast" - it merely reprints the tally on separate sheets of paper. It was not recounting the source data of the "images of ballots cast," and as such it is not a meaningful check on the original count. 14 Using the CVR 13 See Appendix 8. 14 The Secretary of State is somewhat unclear on this issue. While "images of ballots cast" could be considered as a subset of the category "cast vote records," the CVRs in this case are not, in fact, images. In logical terms, the expression would be that just because all A are B does not mean all B are A. (All dogs are animals, but not all animals are dogs.) In its 2014 Electronic Voting System Procedures bulletin, posted online at the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8 - Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEC § 214.071): 1. The candidate requesting a recount may request that the recount be done electronically or manually. 2. For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 3. For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue. Pressley v. Casar Fifth Amended OP Contest p.18 356 instead of ballot image also appears to violate Texas Election Code 214.049 (e): "If electronic voting system ballots are to be recounted manually, the original ballot, rather than the duplicate of the original ballot, shall be counted." Ballots are defined in Texas Election Code Chapter 52, Subchapter c. IS 50. On Sunday January 4,2015, prior to the Recount, Pursuant to TEX. ELEC. CODE § 213.016, "PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES," Dr. Pressley communicated over the phone with the the Travis County Clerk. Pressley informed the Clerk that she desired to be present during the printing of images of ballots cast. "Each candidate is entitled to be present and to have representatives present in the a. The Recount Coordinator shall notifY the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. b. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. c. If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. d. A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records. 15 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name." (e) A square shall be printed to the left of each line provided for write-in voting under Section 52J)66( c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.) Pressley v. Casar Fifth Amended OP Contest p.19 357 same number as prescribed by Section 213.013(b) for a recount during the printing of the images." The next day, January 5,2015, Pressley sent an email to the Travis County Clerk and copied to the Texas Secretary of State's Office, to the same effect. 51. In addition, on January 5, 2015, Dr. Pressley communicated over the phone with the Director of Travis County Elections Division. Pressley informed the Director that she desired to be present during the printing of images of ballots cast. An email was sent to The Travis County Clerk and copied to the Texas Secretary of State's Office, to the same effect. 52. On 6,2015, a "manual recount," which did not use "images of ballots cast" for the "direct recording electronic voting machines," was conducted and additional irregularities ensued with regard to and during the recount. No" Images of Ballots Cast" for Recount-Illegal Votes Counted 53. On Tuesday, January 6, 2015, at 11:00 a.m. (See Appendix 12) when the recount was to begin, the Travis County Clerk and the Recount Committee relayed to Contestant and her official recount watcher, Karen Renick, that images of ballots cast were not available, would not be printed, and would not be used for the recount. 16 Dr. Pressley expressly stated, in her "Petition Requesting a Recount," and "Amended Petition Requesting a Recount" that "[w]e are requesting a manual recount of the results using the actual, stored, ballot images." (See Appendix 11.) Pressley also expressly requested "a manual (by-hand) count." "[T]he election code expressly provides for the 'printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount.' See id. § 213.016." Andrade v. NAACP of Austin, 287 S.W.3d 240, 258 (Tex. App. Austin 2009), rev'd on other grounds by Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex. 2011). Failure to print images of ballots violates this provision of the 16 See attached Appendix 13, Affidavit of Karen Renick, with Exhibits 1 & 2. Pressley v. Casar Fifth Amended OP Contest p.20 358 election code. Printing errors 54. Prior to the start of the Recount, Travis County selected the data files to print and pre- printed an aggregated data file of Cast Vote Records ("CVRs"). The pre-printed CVRs contained a fractional subset of the data that a District 4 ballot contains. Upon starting the recount on January 6, 2014 around ll:OOam, Contestant relayed to the Travis County Clerk and the Recount Committee, that not providing printed images of ballots cast was a violation of TEX. ELEC. CODE § 213.016. 55. Cast Vote Records are not "images of ballots cast." Ballots are defined in Texas Election Code Chapter 52, Subchapter C. 17 56. At the same meeting, Dr. Pressley stated that the pre-printing of recount records and starting the recount process was also a violation of 213.016 and 213.009(c), respectively. A member of the recount committee responded to one of the recount watchers: "They started all this on Sunday [January 4,2015]." 57. Pressley warned the County Clerk that the irregularities, of not printing the images of 17 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name." (e) A square shall be printed to the left of each line provided for write-in voting under Section 52J)66( c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.) Pressley v. Casar Fifth Amended OP Contest p.2l 359 ballots cast, were in violation of the approved amended Petition for Recount and the Texas Election Code and was grounds for an Incident Report. Printing the CVR data files was in essence reprinting the previous electronically counted results obtained on Election night. A CVR is a printing of a data file to a template - it does not "count" the images of ballots - it merely reprints the tally on separate sheets of paper. It was not recounting the source data of the "images of 18 ballots cast," and as such it is not a meaningful check on the original count. Using the CVR instead of ballot image also appears to violate Texas Election Code 214.049 (e): "If electronic voting system ballots are to be recounted manually, the original ballot, rather than the duplicate 18 Secretary of State is somewhat unclear on this issue. While "images of ballots cast" could be considered as a subset of the category "cast vote records," the CVRs in this case are not, in fact, images. In logical terms, the expression would be that just because all A are B does not mean all B are A. (All dogs are animals, but not all animals are dogs.) In its 2014 Electronic Voting System Procedures bulletin, posted online at htm:/ us! electxgn iQ:..vo!i.!]1t_ the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8 - Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEe § 214.071): 4. The candidate requesting a recount may request that the recount be done electronically or manually. 5. For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 6. For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue. a. The Recount Coordinator shall notifY the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. b. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. c. If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. d. A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records. Pressley v. Casar Fifth Amended OP Contest p.22 360 of the original ballot, shall be counted." (Emphasis added.) 58. Contestant requested to conditionally proceed with the Recount and re-print the available CVR data files. 59. Pursuant to TEX. ELEC. CODE § 2l3.007, the machines, materials, programs, and records may be available to the Recount Committee. Pursuant to TEX. ELEC. CODE § 213.0l3(h), each person entitled to be present at a recount is entitled to observe recount activities. Contestant was not allowed to view the full recount process and how the recount data was selected from the electronic voting machines. The CVR data files were identified, isolated and pre-selected prior to the beginning of the Recount. Contestant requested to view the source and properties of the CVR files, such as dates of the CVR files and origination, and was denied by the Recount Committee Member, the Travis County Director of Elections, Michael Winn. Recount Precinct Returns-mega] Votes Counted 60. Pursuant to TEX. ELEC. CODE § 214.002, counting procedures for a recount shall be certified in the same manner as the original count. Pursuant to TEX. ELEC. CODE § 65.014(b)(1), the procedures for preparing the original precinct returns must state the total number of voters who voted at the polling location as indicated by the poll list. Poll lists were not apparently reviewed by the Recount Committee during the recount. Dr. Pressley requested the poll lists to be reviewed and the number voters per precinct be reconciled with those documented on the polling location combination sign-in forms. Pressley requested those numbers be reconciled with the recount results, because of Early Voting voter lists discrepancies identified in the Recount Petition. The request was denied by the Travis County Clerk, the Chair of the Recount Committee, and the Director of Travis County Elections. The request was also specifically made prior to the recount in the Amended Petition for Recount (See Attached Appendix 11, Amended Petition for Recount.) Pressley v. Casar Fifth Amended OP Contest p.23 361 61. Pursuant to TEX. ELEC. CODE § 213.012, the committee chair prepared a report of the vote count. The Travis County Clerk and the Director of the Elections Division repeatedly informed Dr. Pressley that "it was not the scope of the Recount" to reconcile the ballots with the number of voters. The chair wrote, "The numbers of voters matched the number of ballots cast," and signed the report (See Attached Appendix 14, "Recount Affidavit of Jay Brim"). During the Recount, the numbers of voters on voter lists were not publicly reconciled with the ballots recounted by the chair. Dr. Pressley commented to the chair, "Matching the numbers was not supposedly done today," and no explanation was provided by the chair. 62. On January 5, 2015, the Mayor of Austin and City Clerk approved Contestant's amended petition requesting a manual recount of actual stored "images ofballois cast.,,19 Contestant's amended petition included a request to reconcile the ballots cast with the number of voters documented on the sign in sheets and combination fomls for District 4 for the countywide polling locations and Precincts to ensure accurate reporting of results. The number of voters recorded and the number of votes recorded did not match. Ballot by Mail Ballots Are The Only Legal Ballots That Are Properly Preserved 63. This is why printing the "images of the ballots cast" is critical. The ballot in the General Election was very different (8 candidates) from the ballot in the Run Off (2 candidates). If some memory cards or counting software were reused by mistake, then the "images of the ballots cast" will instantly and unmistakably distinguish the true votes from the illegal votes. This is the intent of the 19 Texas Election Code §213.016. Sec. 213.016. PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES. During any printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount, the full recount committee is not required to be present. The recount committee chair shall determine how many committee members must be present during the printing of the images. Each candidate is entitled to be present and to have representatives present in the same number as prescribed by Section 213.0 13(b) for a recount during the printing of the images. Pressley v. Casar Fifth Amended OP Contest p.24 362 "images of ballots cast" language of the law. Which ballots were counted is the question that can be answered only by review of the "images of ballots cast." 64. The mandatory nature of this requirement becomes clear in context. [W]e believe that violations of certain recording provisions by election clerks can certainly undermine the purpose of the election code and obscure the true will of the qualified voters. Gonzalez v. Villareal, 251 S.W.3d at 778 65. Failure to retain "image of ballots cast," "ballots" and or "ballot originals" is precisely such a violation, because there is no clear and unequivocal record of the voter's intent, absent such an Image. 66. Given the facts and the election mistakes made by Travis County election officers, all of the 4,023 votes that show to be cast in person, are in question and must be verified. Therefore, we ask the Court to compel Travis County to print and tally the "images of ballots cast" for the District 4 Run Off so the court may ascertain whether the outcome as shown by the canvass is not the tme outcome because illegal votes were counted. The list of the 4,023 voters and their Voter ID' s are provided in Appendix 15. 67. The recount included the Ballot by Mail ballots, and those specific results for Pressley and Casar were determined. 20 Ballot by Mail Votes were cast in seventeen of the eighteen precincts of District 4. 21 Pressley received 240 votes and Casar received 240 votes of the 480 total votes cast for either candidate for the Ballot by Mail ballots. Pressley received exactly 50% of the votes. 68. The Ballot by Mail result is very different from the 33.3 and 33.8% Pressley is reported to ha ve received for early voting and election day voting from the "cast vote records" - a variation from mail-in votes and non-mail-in votes of almost 20% (See attached Appendix 3, "Recount 20 See attached Appendix 3, "Recount Results." 21 One precinct, with a population of a single voter, showed no votes. Pressley v. Casar Fifth Amended OP Contest p.25 363 Results"). 69. The only actual "ballots" that were preserved and counted during the recount show Pressley and Casar split the vote exactly in half. Moreover, 10 of the 18 precincts showed 50% or more of the vote for Pressley. The Ballot by Mail ballots that were cast for either candidate (total of 480 votes) were over 10% of the total ballots cast for the Run Off election. 70. The 480 Ballot by Mail ballots are the only" ballots," as that term is defined in the Election Code, which were available and counted during the recount. Therefore, the election should have been re-canvassed only with the 480 Ballot by Mail "ballots" and not the results including the 4,023 illegally recounted "cast vote records." 71. This is an additional reason for the court to compel the Travis County Clerk to comply with TEX. ELEC. CODE § 213.016 22 and 214.049 (e?3 to print and count the statutorily required "images of ballots cast" and ascertain whether the previous outcome of the election is not the true outcome. 72. On January 6, 2015, the recount was conducted and completed. After the recount, the totals were unchanged as compared to the original canvassed results. The totals were Laura Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast. 73. Reconciliation of voter signatures on rolls at polling locations and total ballots cast has not been completed. An election contest is the only available remedy to explore the discrepancy between the number of ballots counted and the number of voter names and signatures in the precincts. 74. The sum total of all voting irregularities identified herein exceeds the number of votes by 22 "PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES" 23"If electronic voting system ballots are to be recounted manually, the original ballot, rather than the duplicate of the original ballot, shall be counted." Pressley v. Casar Fifth Amended OP Contest p.26 364 which the election was decided. 75. If no "images of ballots cast" can be retrieved, printed and counted, Travis County cannot unequivocally determine the outcome of the election. The Court may order each of the more than 4,000 voters who voted in person to testify as to how they voted, pursuant to Texas Election Code Sec. 221.010. "SECONDARY EVIDENCE FOR UNAVAILABLE BALLOTS. 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 testity as to how they voted." 76. In the alternative, if Travis County cannot produce "images of ballots cast" to be printed and counted, then Travis County cannot unequivocally determine the outcome of the election, and the election is void. As a matter oflaw, the Court must therefore order a new election. TEX. ELEC. CODE § 232.041. 24 VII. PETITION TIMELY FILED 77. This Election Contest is brought in accordance with the provisions of TEX. ELEC. CODE §232.008, which requires the Original Petition to be filed with the District Court not later than the 30 th day after the date the official result of the contested election is determined. 78. On Tuesday, December 30 th , the Mayor and City Council of Austin conducted an official canvass and certification of the Run Off results for all races on the December 16, 2014 ballot, including District 4. However a recount was conducted on January 6, 2015 and those results did not change. The deadline for submission of a petition in an election contest is January 29, 2015. The original petition was filed on or before that date and was timely filed. 24 Sec. 232.041. NEW ELECTION ORDERED IF CONTESTED ELECTION VOID. In an election contest in which the contested election is declared void, the court shall include in its judgment an order directing the appropriate authority to order a new election. Pressley v. Casar Fifth Amended OP Contest p.27 365  VIII. CONDITIONS PRECEDENT 79. All conditions precedent have been perfonned or have occurred. IX. VIOLATIONS OF LAW Texas Election Code Violation Lack of Notice of Relocation of Polling Place 82. The facts asserted above are included herein by reference. Contestant claims that voters were disenfranchised due to the failure of Travis County to provide and/or maintain an adequate notice at the general election polling place (Highland Mall and other voting locations identified herein) detailing the relocation of the polling place to the Travis County offices for the runoff election in December 2014. Such failure to provide notice of relocation of the polling place for the runoff election is a violation of Texas Election Code § 43.062. Section 43.062 states: Sec. 43.062. NOTICE AT PREVIOUS POLLING PLACE. If the location of the polling place for an election precinct is different from the location used for the precinct in the preceding election ordered by the same authority, the authority responsible for giving notice of the election shall, if possible, post notice at the entrance to the previous polling place stating that the location has changed and providing the location of the new polling place. Added by Acts 2001, 77th Leg., ch. 802, Sec. 1, eff. Sept. 1,2001. Contestant seeks an order requiring a vacation of the runoff election and an order requiring a properly noticed runoff election be held forthwith. Failure to Provide "Images of Ballots Cast" 83. Contestant asserts that the December 2014 runoff fails to comply with the statutory requirements of the Texas Election Code Chapters 128 and 213. Section 128.001 states: Sec. 128.001. COMPUTERIZED VOTING SYSTEM STANDARDS. Pressley v. Casar Fifth Amended OP Contest p.28 366  (a) The secretary of state shall prescribe procedures to allow for the use of a computerized voting system. The procedures must provide for the use of a computerized voting system with: (1) multiple voting terminals for the input of vote selections on the ballot presented by a main computer; and (2) a main computer to coordinate ballot presentation, vote selection, ballot image storage, and result tabulation. 84. Section 2l3.016 states: Sec. 2l3.016. PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES. During any printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount, the full recount committee is not required to be present. The recount committee chair shall determine how many committee members must be present during the printing of the images. Each candidate is entitled to be present and to have representatives present during the printing of the images in the same number as Section 2l3.0l3(b) prescribes for watchers for a recount. Added by Acts 2003, 78th Leg., ch. 583, Sec. 2, eff. Sept. 1,2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 1235 (S.B. 1970), Sec. 22, eff. September 1,2009. 85. As asserted above, the Travis County Clerk cannot provide "images of ballots cast" for purposes of a recount in the December runoff election as required by the Texas Election Code. Because the Travis County Clerk cannot produce "images of ballots cast", the ballots cast on the electronic voting machines cannot be verified. Contestant seeks an order from this case vacating the December 2014 runoff election. Since the only verifiable votes in the December runoff are the ballots by mail, said votes resulting in a tie in the runoff, Contestant seeks an order from this Court directing that another runoff election be conducted and that the Travis County Clerk provide "images of ballots cast" in such a runoff election for purposes of allowing all affected parties to verify the results of said runoff in compliance with the above-referenced provisions of Pressley v. Casar Fifth Amended OP Contest p.29 367  the Texas Election Code. Violation ofSection 2 of the Federal Voting Rights Act 86. Contestant asserts that failure to provide notice at the general election polling place of the relocation of the polling place for the runoff has a disproportionate impact on minority voters in violation of Section 2 of the Voting Rights Act. 42 U.S.c. §§ 1973b(f), 1973l(c)(3» (now 52 USC 10303) bars voting discrimination against certain language minorities--specifically, persons of American Indian, Asian American, Native Alaskan, and Spanish heritage. Members of the protected class of Spanish heritage in Precincts 142 and 156 (Appendix 1) were disenfranchised by the confusion created by the lack of notice of the change in polling place for the December 2014 runoff election. Contestant seeks an injunction from this Court pursuant to 42 U.S.c. § 1983 vacating the runoff election and requiring a new runoff election forthwith. IX. MOTION TO MODIFY STANDARD DISCOVERY PROCEDURES 87. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign an order shortening the time allowed for Contestee to comply with the discovery requests set forth below to no more than fifteen days. 88. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign an order shortening the time allowed for Contestee and third-party witnesses, voters, the City of Austin and Travis County, to comply with the discovery requests set forth below in paragraph to no more than ten days, and that the period of notice required for Deposition on Written Questions be reduced to ten days. 89. Contestants further requests that the Court sIgn an order requmng that Contestee's Pressley v. Casar Fifth Amended OP Contest p.30 368 response to the request for disclosure, and all other responses and answers in this case be hand- delivered, faxed or emailed. 90. The foregoing modifications to standard discovery procedures are necessary because of the accelerated procedures that apply to this election contest. The foregoing reasons constitute good cause for the requested relief. X. RESPONSE TO SPECIAL EXCEPTIONS Introduction 91. Dr. Pressley has found indisputable election irregularities and mistakes that were made in conducting the District 4 election held on December 16,2014 that show the outcome as shown by the final canvass is not accurate and she is bringing this election contest. Because illegal votes were counted, eligible voters were prevented from voting, legal votes were not counted, and Travis County election officers made errors and mistakes, Dr. Pressley is asking, pursuant to Section 221.003 (a), for the "court to ascertain whether the outcome of the District 4 Run Off election, as shown by the canvass, is not the true outcome." If a contestant is prevented by the county clerk from proving the actual number of legal votes by the clerk's act of not preserving or requiring or counting images of the ballots actually cast there is no way to conclude the clerk reported the true outcome . Without the images of the actual ballots there is not a true outcome and the run-off election must be repeated preserving the images of the ballots cast as provided and required by state law. 92. Contestee alleges Dr. Pressley is attacking the entire state-wide electronic-voting system. In fact, the contest is limited solely to the discrete errors made by the Travis County Clerk's office in this single election. All counties are capable of complying with the law and preserving images of the actual ballots cast by a voter. Travis county just elected to ignore that law and the sound public Pressley v. Casar Fifth Amended OP Contest p.3l 369 policy behind it. It cannot certify a true outcome by reason of its own misconduct in this election that is at issue in this case. 93. Weaknesses in the Travis County Election systems are well known and have been extensively identified. Several years ago, Travis County Clerk Dana DeBeauvoir herself convened a Travis County Clerk Election Study Group to evaluate Travis County's current voting system and make recommendations for future systems. (http://www. traviscountyclerk.org/eclerklcontentlimages/presentations_ articles/pdCtc _elections _E SG_Report_2009. pdf) Clerk DeBeauvoir had determined that a study group was needed to address public concerns about electronic voting and to ensure ample time to plan for an upgrade or replacement of the existing system and "its most significant recommendation is that Travis County move away from an all-electronic voting system to one that offers electronically-counted paper ballots." Clerk DeBeauvoir is on record stating the need to redesign and replace Travis County's voting systems: (http://www. traviscountyclerk.org/eclerklcontent/images/presentations articles/pdf tc elections 2 013.07.26 star.pdf and https://www.supportthevoter.gov/files120 13/09/Dana-Debeauvoir-STAR- Voting-System-Diagram.pdf and "Three years ago, DeBeauvoir decided that something had to change. "1 said, 'Okay, I'm fed up. I'm going to design my own system. '" Part of her frustration stemmed from complaints lodged against the county that she felt blamed officials for things beyond their control."( https://www.texastribune.org12014107/09/travis-county-forges-new- territory-voting-machines/): 94. Given the specific voting irregularities outlined herein, Dr. Laura Pressley fully supports the Clerk's search for a more accountable and election system. One critical component that the Travis County system is lacking is that Texas Election Code allows for a manual recount using Pressley v. Casar Fifth Amended OP Contest p.32 370 "images of ballots cast." When Pressley requested a manual recount using "images of ballots cast" for the District 4 Run Off election, Travis County is on record stating they cannot comply. Interestingly, in January 2015, Pressley was informed both by DeBeauvoir and former Travis County Judge Bill Aleshire that no other candidate in Travis County's history had requested a manual recount of "images of ballots cast." A review of reported cases shows no indication that any candidate in the state has requested such a statutorily-allowed recount. This contest, therefore, to the extent it decides issues regarding this mandate and this language, is a case of first . . 25 ImpressIOn. The court will, of course, be guided by the Texas Supreme Court's view of statutory language, 25 which is not as fluid as that of federal courts or other state courts. If the statutory text is unambiguous, a court must adopt the interpretation supported by the statute's plain language unless that interpretation would lead to absurd results. See Tune v. Tex. Dep't ofPub. Safety, 23 S.W.3d 358,363 (Tex.2000) ("We must enforce the plain meaning of an unambiguous statute."); RepublicBank Dallas, NA. v. Interkal, Inc., 691 S.W.2d 605,607 (Tex.1985) ("Unless a statute is ambiguous, we must follow the clear language of the statute. "); Brazos River Auth. v. City of Graham, 163 Tex. 167,354 S.W.2d 99, 109 n. 3 (1962) ("[O]perating as we are under a strict theoretical division of governmental powers, it would take a bit of doing on the part of the judiciary to say, in the absence of ambiguous and uncertain statement or patent and manifest absurdity, that the Legislature intended something different from the clear import of the words chosen by it.. .. "); Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1039 (1916) (The literal meaning of a statute may be disregarded "only where it is perfectly plain that the literal sense works an absurdity or manifest injustice."). Texas Dep't ofProtective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004). (emphasis added.) See also AIC Mf!tnt. v. Cre'i/s. 246 S.W.3d 640 (Willet. J.. concurrinQ:) (internal citations omitted) (citinQ: to Alex SheshunoffMf!mt. Servs .. L.P. v. Johnson. 209 S.W.3d 644.652 nA (Tex. 2006) and 542 U.S. 241, 267, 124 S. Ct. 2466, 159 L. Ed. 2d 355 (2004) (Scalia, J., concurring in the judgment). This Court recognizes that legislative intent is best embodied in legislative language. We recently cautioned that "over-reliance on secondary materials should be avoided, particularly where a statute's language is clear. If the text is unambiguous, we must take the Legislature at its word and not rummage around in legislative minutiae." Pressley v. Casar Fifth Amended OP Contest p.33 371 95. With regard to the fact that Travis Count's use of one version of the Hart InterCivic eSlate system may violate the Texas Election Code requirements for storing, retrieving, and printing of "images of ballots cast," we respectfully assert any regulatory redefinition equating "images of ballots cast" with "cast vote records" exceeds the statutory grant of authority.26 Given that the term "ballot" is defined in the Texas Election Code and "images of ballots cast" is referenced with regard to recounts and "cast vote records" are not, the Texas Election Code trumps the Secretary of State's administrative definitions. 96. Addressing the various pieces of evidence that became available and the irregularities that occurred during the recount is important in the analysis and evaluation of this election contest. The recount evidence is critically material to this case and the allegations are legally relevant to this election contest. Moreover, it is in the recount failures that Travis County's failure to use equipment up to statutory standards becomes clear. 97. The legal question raised by an election contest is whether the outcome of the contested District 4 election is not, or cannot be conclusively determined to be, the true outcome. Specifically, Dr. Pressley has found that illegal votes were counted, Travis County Elections Division prevented eligible voters from voting, failed to count legal votes, and engaged in other irregularities that materially affected the election results. Moreover, because of the failure of Travis County to maintain "images of ballots cast", the outcome cannot be determined to be the Faced with clear statutory language, "the judge's inquiry is at an end." It may be a widespread practice to mine the minutiae of legislative records to discern what lawmakers had in mind, but as we have held, relying on these materials is verboten where the statutory text is, as here, absolutely clear. 26 \Ve cannot construe the rule in a manner that is inconsistent with the statute. See, e.g., Centerpoint Energy, Inc. v. Public Uti!. Comm'n, 143 S.W.3d 81,85 (Tex. 2004) (observing that rule is invalid if it violates statutory provision); Texas Workers' Compo Comm In v. Patient Advocates, 136 S.W.3d 643, 657-58 (Tex. 2004) Tex.1Ifut. Ins. Co. v. Vista CmZV. Afed. Ctr., LLP, 275 S.W.3d 538,557,2008 Tex. App. LEXIS 8602,45 (Tex. App. Austin 2008) (emphasis added.) Pressley V. Casar Fifth Amended OP Contest p.34 372 true outcome. Case Law Presented by Contestee is largely irrelevant Andrade v. NAACP, 345 S.W. 3d 1 (Tex. 2011) 98. Contestee Casar's ORIGINAL ANS\VER AND SPECIAL EXCEPTIONS TO CONTESTANT'S ORIGINAL CONTEST OF ELECTION references the Andrade v. NAACP case, seeks to apply it to the instant case, and states that "the Secretary of State's certification of eSlate for use by Travis County did not violate equal protection rights of voters using electronic voting system." 99. Contestee Casar misinterprets Contestant Dr. Pressley's claims in this case. She does not assert a claim of violation of equal protection as it relates to electronic voting systems. Rather, Contestant Dr. Pressley asserts that illegal votes were counted, election officers prevented eligible voters from voting, election officers failed to count legal votes, and election officers made mistakes that resulted in an election outcome which is not the true outcome and did not preserve images of ballots to be used as acheck on the computer results which prevented a determination that the election and the recount was a true outcome. Thus, the Andrade case is irrelevant. 100. Contestee Dr. Pressley's election contest claims were not asserted in Andrade v. NAACP and Dr. Pressley has been directly harmed by Travis County's conduct during the District 4 election and she has been directly harmed by the County's inability to ascertain the true outcome because "ballots," "original ballots" and/or "images of ballots cast" cannot be counted. Tex. Democratic Party v. Williams, 285 Fed. Appx. 194, 195 (5 th eire 2008) 101. In CONTESTEE'S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO CONTESTANT'S ORIGINAL CONTEST OF ELECTION he references Tex. Democratic Party v. Williams, and applies it to our case with regard to "the eSlate did not violate voters' rights under Pressley v. Casar Fifth Amended OP Contest p.35 373 the First and Fourteenth Amendments to the United States Constitution." 102. Contestee Casar misinterprets Contestant Dr. Pressley's claims in this case. She does not assert claims of violations of the First and Fourteenth Amendments to the United States Constitution as it relates to electronic voting systems. Rather, Contestant Dr. Pressley asserts, illegal votes were counted, election officers prevented eligible voters from voting, election officers failed to count legal votes, and election officers made mistakes that resulted in an election outcome which is not the true outcome and they did not preserve the images of ballots which is a possible function of the eSlate program. 103. Additionally, as a matter of law, Dr. Pressley claims that "cast vote records" do not meet the statutory requirements of "ballots," "original ballots" and/or "images of ballots cast." Therefore, if "images of ballots cast" were not preserved, and thus cannot be retrieved, printed and counted, then Travis County cannot unequivocally determine the outcome of the election. Pressley v. Casar Fifth Amended OP Contest p.36 374  Conclusion 104. Therefore, based on the foregoing, the Contestant requests the run-off election be declared void, a new run-off be held at which images of the ballots actually cast be preserved using procedures compliant with the Texas Election Code for use in the event of a contest, the Court award reimbursement for the cost of her election contest, recount fees, and that the Court grant all other and further relief, in law and in equity, to which she may be entitled. Respectfully submitted, David Rogers LA W OFFICE OF DAVlD ROGERS By: lsi David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836 - Telephone 512-201-4082 - Facsimile Email: Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney jor Contestant Dr. Laura Pressley Pressley v. Casar Fifth Amended OP Contest p.37 375  CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on April 20, 20] 5 on counsel of record as follows: Charles 'Chuck' Herring Jr. 09534100 Jess Irwin - 10425700 Lauren Ross - 24092001 Herring & Irwin, L.L.P. 1411 \Vest Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580 Kurt Kuhn - 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002- Facsimile FOR CONTESTEE, GREGORIO "GREG" CASAR Andrew M. Williams Assistant County Attorney Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767 Fax: email: andrew.williams@traviscountytx.gov By: /s/ David Rogers Pressley v. Casar Fifth Amended OP Contest p.38 376  4/23/2015 10:23:54 AM Velva L. Price District Clerk Travis County D-1-GN-15-000374 ;.; '; ?-\ " K "§ "" L L to to vote. or at !C c 479 on as vote in vo1er Coun Fourth on JOl:9 as Al. 480  1 a \ oter to vote if the voter as no to vote if out c or 5. not are was as votes vvere il voters no !S to Fi Contest 481  6. concern al JS an contest. not a rccoum contest (:ourl recow!L to state recount error \\as not ·'true outcorne. ·· 41 7 !. §1 482 } As 'lun: to s ! 13 . as as 483 484  1 "· 11 lJ 14 18 19 ..: .,;: ,;_ ), 22 --··,<' 23 .f ') c:., 485  VI 1 .) i i n- l 11:44 r:.c: " 11:4. " 11:45: 486 1 11 45 21 34- 1. .·:; 487 From: Mark Cohen To: Charles Herring; "Dan l\1ills"; Warren Vavra Cc: Andrew Williams; firm(mdarogerslaw.com; Sherine Thomas; Pat Kelly; "Lauren Ross"; "Kurt Kuhrl"; "Palvino, Jessica B." Subject: RE: Pressley - Casar Date: Friday, April 24, 2015 1:46:34 PM I will review the discovery docs and your agreement to stipulate to the ad111issibility of the county's production. If I think I need any other testimony from the county to respond to your motion I will ask you to stipulate to it and if you feel that you cannot do that I will do my job as an attorney and get the evidence I think I need in admissible form and assert my right to do so before a summary judgment is set or considered. That is the best I can do to accommodate everyone's goal to expedite a final decision while still doing so based on all the available evidence Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512R472-5444 (f) Ma rk@cohen !ega lservices.com www. CohenLegal Services .com Everyone needs a break for peace of mind- especially those involved with the legal system. Rent our Villa with pool in Playa Del Carmen near the beach and town. Need a vacation? see http:Uvillaalegreplaya.com and http://www.steinhardt.us/villaalegre/ CONFIDENTIALITY NOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer. TREASURY DEPARTMEf\JT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. From: Charles Herring [mailto:cherring@herring-irwin.com] Sent: Friday, April 24, 2015 1:40PM To: Mark Cohen; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar 4 4497 Whether you depose Ms. DeBeauvoir will be up to you, her, the County, and the Court. I was just pointing out that based on the only two reasons you have given thus far for deposing her, the deposition appears unnecessary. From: Mark Cohen [mailto:markCwcohenlegalservices.com] Sent: Friday, April 24, 2015 1:33 PM To: Charles Herring; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar Thank you for that stipulation I will prepare one for the response to the rnsj. That will shorten the deposition somewhat. However I have my reasons for wanting a deposition and it certainly is not to delay resolution of this matter past July 20. I am certain you would never let an opposing counsel tell you when you need to take a deposition either Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512•474a4424 512-472H5444 (f) Ma rk@cohen !ega lservices.com www.CohenLegalScryices.com Everyone needs a break for peace of mind- especially those involved with the legal system. Rent our Villa with pool in Playa Del Carmen near the beach and town. Need a vacation? see http:Uvillaalegreplaya.com and http://www.steinhardt.us/villaalegre/ COI\IFIDENTIALITY i'JOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer. TREASURY DEPAR.TMENT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. From: Charles Herring [mailto:cherring@herring-irwin.com] Sent: Friday, April 24, 2015 1:29PM 4498 To: Mark Cohen; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar We agree to stipulate in advance to the authenticity of any document that Travis County produces, f\]o deposition is necessary for that. Given that the Secretary of State, the County Clerk, the City Clerk, and the United States Election Commission all say exactly the same thing-that for electronic voting a Cast Vote Record is a ballot image--we can stipulate to that. Pressley filed for the recount on the last possible day, then filed suit the last possible day (1/30), and then failed to serve Casar until 2/10. The general election was November 4, six rnonths before the early May hearing date. Six months after the election is the opposite of "speed" for an election contest. In many instances, trial of an election contest has to be set within 5 days after the filing of an answer. Election Code sec. 232,012(d), --Chuck Herring From: Mark Cohen [mailto:mark@cohenlegalservices.com] Sent: Friday, April 24, 2015 1:02PM To: 'Dan Mills'; 'Warren. Vavra'; Charles Herring Cc: 'Andrew Williams'; firm@darogerslaw,com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar Dear .Judge Mills: We will need to take the deposition of Travis County clerk before we can be prepared to respond We have third party discovery from them but we will need admissible testimony to get them admitted . we also need admissible testimony from them that the cvr's are the only document they have to meet the image of ballot cast requirement, Sheri, the county attorney in charge is out until next week. As I told Mr. Herring I will be contacting Sherri and him for a mutually convenient date to take the depositions and then we have of course the printing of the deposition and the time for the deponent(s) to read and sign and I will need time to prepare a response to the Motion. The phantom need asserted to move this case so fast that it prejudices my client's chance to fairly present the case is strongly objected to and it just unnecessarily creates additional grounds for necessitating an appeal which will delay the final decision even more, The pendency of this case is having no more of an effect on Mr. Casar that every litigant waiting for the procedures of a trial to work their way and there is no evidence that the city is being adversely effected in any way. Frankly Mr, Herring's tactical efforts to prevent Ms, Presley from having a fair opportunity to provide you with all of the admissible evidence just affirms how important it is that I have the time to provide it to you. Given the trial is not until July 20 Ms. Pressley will object to any shortening of her time to respond and notice of hearing that is less than the 21 days required by the rules and ignores our right to conduct reasonable discovery before being required to respond to a Motion for Summary .Judgrnent. Let's not sacrifice fairness for speed. I respectfully request that the Motion be set 21 days or more after I receive the deposition of the county clerks in form that is not subject to objection(it is signed or signature is waived or excused) necessary to have my evidence to meet the Summary Judgment allegations. As in most case some of the evidence if not most of it comes from other sources so it is not frivolous to take depositions to obtain it from the source that will satisfy the rules of evidence as to admissibility, My client is anxious to get the facts out and obtain a final 4499 resolution as anyone since she is the one who is being deprived of an election with a true outcome. The city council and Mr. Casar are proceeding quite efficiently as if this case had never been filed Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512R474M4424 512a472M5444 (f) Ma rk@cohenlega lservices.com www.CohenLegalServices.com Everyone needs a break for peace of mind- especially those involved with the legal system. Rent our Villa with pool in Playa Del Carmen near the beach and town. Need a vacation? see http://villaalegreplaya.com and http:Uwww.steinhardt.us/vi!laalegre/ CONFIDENTIALITY NOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer. TREASURY DEP.L\RTMENT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication {including any attachrnents) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any transaction or matter addressed herein. 4500  No. D-1-GN-15-000374 LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR § Contestee § 201 st JUDICIAL DISTRICT NOTICE OF DEPOSITION ON ORAL TESTIMONY OF A REPRESENTATIVE OF TRAVIS COUNTY CLERK'S OFFICE PLEASE TAKE NOTICE that, pursuant to the Texas Rules of Civil Procedure, Contestant Laurie Pressley, by and through her attorneys of record, give notice of deposition on oral testimony of a Representative of Travis County Clerk's Office with advanced knowledge in the areas of: 1. What kinds of data are stored and are capable of being stored in the voting system used by Travis County in 2014. 2. How and where data is stored in the voting system used by Travis County in 2014. 3. Security protocols in the voting system used by Travis County in 2014. 4. Details of the way the system was used by Travis County for that election. 5. Hart InterCivic documents and interpretation of those documents provided by Travis County including but not limited to Audit Logs, Manuals, and Contract for the various components of voting system used by Travis County in 2014 (Tally, Rally, eSlate, JBC, MBB, Ballot Now, SERVO, etc.). 6. Programming of Hart Voting System software. 7. Operation and technical details of Hart Voting System software and hardware. 8. What information exists along with operational and technical details regarding the eSlate Manual and its contents for the voting system used by Travis County in 2014. 9. What information exists regarding Judge's Booth controller (JBC) Manual and its contents for the voting system used by Travis County in 2014. 10. What information exists along with operational and technical details regarding Mobile Ballot Box Manual and Technical Specs for the voting system used by Travis County in 2014 .. 11. What information exists along with operational and technical details regarding 1 4488  Manuals for the correct versions of the Hart Voting System being used by Travis County. See Table 1.5. 12. What information exists along with operational and technical details regarding all Mobile Ballot Boxes that contain District 4 vote data from Early Voting and Election Day for the voting system used by Travis County in 2014. 13. What information exists along with operational and technical details regarding all Mobile Ballot Boxes that used by Travis County in 2014. 14. What information exists along with operational and technical details regarding all Mobile Ballot Boxes containing Ballot Now CVR's as identified in the Tally audit logs for the voting system used by Travis County in 2014. 15. What information exists along with operational and technical details regarding All Original District 4 CVR files stored on the eSlate, the JBC, MBB and Tally for the voting system used by Travis County in 2014. 16. What information exists along with operational and technical details regarding the identify of Travis County's Programmer and Contractors for Hart Voting System for the voting system used by Travis County in 2014. 17. What information exists along with operational and technical details regarding Contract between Hart and Travis County--Appendix B Contractor's RFP Response for the voting system used by Travis County in 2014. 18. What information exists along with operational and technical details regarding Mobile Ballot Box driver software and reader for the voting system used by Travis County in 2014. 19. What information exists along with operational and technical details regarding Cast Vote Records from MBB's from Ballot Now tabulation of Ballot by Mail for the voting system used by Travis County in 2014. Deposition will take place on ______at _ _ _ _ _ , at the office of _ _ __ located at _________ , unless parties mutually agree in writing to hold the deposition on a different date or time and, or at a different location. The deposition shall continue from and will be recorded by stenographic means and video before an officer authorized to administer oaths. The deposition will be taken for the purposes of discovery, for the use at trial in this matter, and for any other purpose permitted under the Federal Rules of Civil Procedure. Respectfully submitted, NoTICE OF DEPOSITION PAGE2 OF 5 448 Mark Cohen 805 W. 101h St., Suite 100 Austin, Texas 78701 David Rogers 512-474-4424 Mark@CohenLegalServices.com Law Office of David Rogers 1201 Spyglass, Suite 100 Austin, TX 78746 (512) 923-1836 (512) 201-4082 (fax) DARogers@aol.com Is/David Rogers David Rogers State Bar #24014089 Attorney for Contestant NoTICE OF DEPOSITION PAGE3 OF 5 44 0  CERTIFICATE OF SERVICE Pursuant to Federal Rules of Civil Procedure, a true and correct copy of the foregoing has been sent on this the 41h day of May, 2015 to counsel for the Travis County Clerk and all parties of record. Patrick Kelly Pat.Kelly@Co. Travis. Tx. US Sherine Thomas Sherine. Thomas@ Co. Travis. Tx.US Andrew Williams Andrew.Williams@Co.Travis.Tx.US David Escamilla, County Attorney 414 W. 11th St. Granger Bldg., Suite #500 P.O. Box 1748 Austin, Texas 78767 Attorneys for Dana DeBeauvoir, Travis County Clerk and Travis County Voter Registrar Bruce Elfant 5501 Airport Blvd, Austin, TX 78751 Charles 'Chuck' Herring Jr. cherring@herring-irwin. com Jess Irwin Lauren Ross LaurenBRoss@gmail.com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Attorney for Contestee Gregorio "Greg" Casar Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive,# 310 Austin, Texas 78731 Attorney for Contestee Gregorio "Greg" Casar Jessica Palvino jpalvino @mcginnislaw .com MCGINNIS, LOCHRIDGE AND KILGORE LLP 600 Congress, Suite 2100 Austin, TX 78701 NoTICE OF DEPOSITION PAGE4 OF 5 44 1 (512) 495-6079 (512) 505-6379- Facsimile State Bar No. 24048780 Attorney for Contestee Gregorio "Greg" Casar Is/ David Rogers David Rogers NoTICE OF DEPOSITION PAGE5 OF 5 44 2  Exhibit D Page 1 1 NO. D-1-GN-15-000374 2 LAURA PRESSLEY IN THE DISTRICT COURT Contestant 3 4 vs. TRAVIS COUNTY, TEXAS 5 6 GREGORIO "GREG" CASAR 7 Contestee 201ST JUDICIAL DISTRICT 8 ****************************************** 9 ORAL DEPOSITION OF 10 DANA DEBEAUVOIR 11 MAY 11, 2015 12 ****************************************** 13 14 ORAL DEPOSITION OF DANA DEBEAUVOIR, produced as 15 a witness at the instance of the Contestee GREGORIO 16 "GREG" CASAR, and duly sworn, was taken in the 17 above-styled and numbered cause on May 11, 2015, from 18 9:44 a.m. to 12:24 p.m., before KATHERINE A. BUCHHORN, 19 Certified Shorthand Reporter in and for the State of 20 Texas, reported by machine shorthand, at the offices of 21 County Clerk's Courthouse Conference Room, Room 222, 22 Heman Marion Sweatt Courthouse, 1000 Guadalupe, Austin, 23 Texas 78701, pursuant to the Texas Rules of Civil 24 Procedure and the provisions stated on the record or 25 attached hereto. Sympson Reporting- 512.374.0596 1881  Page 2 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 A P P E A R A N C E S 2 3 FOR THE CONTESTANT: 4 MARK COHEN THE LAW OFFICES OF MARK COHEN & ROSE COHEN 5 805 W. lOth Street Suite 100 6 Austin, Texas 78701 512.474.4424/512.472.5444 (fax) 7 mark@cohenlegalservices.com 8 9 FOR THE DEPONENT, DANA DEBEAUVOIR: 10 SHERINE E. THOMAS DIRECTOR LITIGATION DIVISION - TRAVIS COUNTY 11 314 W. 11th Street Austin, Texas 78701 12 512.854.9513/512.854.4808 (fax) sherine.thomas@traviscountytx.gov 13 - and - 14 ANDREW M. WILLIAMS 15 ASSISTANT COUNTY ATTORNEY - TRAVIS COUNTY 314 W. 11th Street, Suite 500 16 Austin, Texas 78701 512.854.9513/512.854.9472 (fax) 17 andrew.williams@traviscountytx.gov 18 19 20 21 22 23 24 25 Sympson Reporting- 512.374.0596 1882  Page 3 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 FOR THE CONTESTEE, GREGORIO "GREG" CASAR: 2 CHARLES HERRING, JR. HERRING & IRWIN, L.L.P. 3 1411 West Avenue Suite 100 4 Austin, Texas 78701 512.320.0665/512.519.7580 (fax) 5 cherring@herring-irwin.com 6 - and - 7 JESSICA PALVINO MCGINNIS LOCHRIDGE 8 600 Congress Avenue, Suite 2100 Austin, Texas 78701 78701 9 512.495.6079/512.505.6379 (fax) jpalvino@mcginnislaw.com 10 11 12 ALSO PRESENT: 13 Laura Pressley, Ph.D. Abbe Waldman 14 15 16 17 18 19 20 21 22 23 24 25 Sympson Reporting- 512.374.0596 1883  Page 4 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 I N D E X 2 PAGE 3 Appearances. 2 4 Exhibits . . 5 5 Requested Information. 7 6 Stipulations . 8 7 DANA DEBEAUVOIR 8 9 Examination by Mr. Herring . . . . 9 Examination by Mr. Cohen . . . . . 40 10 Further Examination by Mr. Herring 128 11 Reporter's Certificate 132 12 13 Changes and Signature . . . . . . . . . . . . 135 14 15 16 17 18 19 20 21 22 23 24 25 Sympson Reporting- 512.374.0596 1884  Page 5 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 E X H I B I T S 2 NO. DESCRIPTION PAGE 3 1 9 Travis County Clerk Dana DeBeauvoir 4 Curriculum Vitae 5 2 *** NOT INTRODUCED *** 6 3 21 7 Election Advisory No. 2012-03 8 4 22 Electronic Voting System Procedures 9 5 23 10 Glossary of Key Election Terminology - 2007 11 6 51 12 eSlate Voting System - About the eSlate Voting System 13 7 44 14 By-Mail Ballot example 15 8 45 By-Mail Ballot example 16 9 17 *** MARKED - NOT INTRODUCED or PROVIDED TO REPORTER *** 18 10 42 19 Votes by Precinct - JBCs Election Day GR14, Precinct 133C 20 11 119 21 District 4 Runoff Cast Vote Record Recount files Meta-Data - Date Modified 22 12 56 23 Audit Log - Official, Travis County December 16 2014 Joint Special Runoff 24 Election 25 Sympson Reporting- 512.374.0596 1885  Page 6 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 E X H I B I T S 2 NO. DESCRIPTION PAGE 3 13 54 GR14 City of Austin Manual Recount of 4 District 4 5 14 *** NOT MARKED *** 6 15 7 *** NOT MARKED *** 8 16 129 Precinct 133 Voters - December 16, 2014 9 Voting location: Memorial United Methodist Church 10 17 130 11 Precinct 142 Voters - December 16, 2014 Voting location: Travis County Airport 12 Offices 13 18 130 Precinct 209 Voters - December 16, 2014 14 Voting location: Grant AME Worship Center 15 19 130 16 Precinct 258 Voters - December 16, 2014 Voting location: Walnut Creek Elementary 17 20 130 18 Precinct 260 Voters - December 16, 2014 Voting location: Lanier High School 19 20 21 22 23 24 25 Sympson Reporting- 512.374.0596 1886  Page 7 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 DOCUMENTS/INFORMATION REQUESTED (OR MAY BE REQUESTED) 2 NO. DESCRIPTION PAGE 3 1 74 4 Names of tally administrators 5 2 75 Name of tally administrator making 6 specific entry 7 3 87 Names of people more familiar with 8 Audit Log 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sympson Reporting- 512.374.0596 1887  Page 8 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 S T I P U L A T I 0 N S 2 3 The attorneys for all parties present stipulate and 4 agree to the following items: 5 6 The deposition of DANA DEBEAUVOIR is taken pursuant 7 to Notice; 8 9 That all objections will be made pursuant to the 10 Texas Rules of Civil Procedure; 11 12 That the original transcript will be submitted for 13 signature to the witness' attorney, SHERINE E. THOMAS, 14 and that the witness or the witness' attorney will 15 return the signed transcript to Sympson Reporting within 16 20 days of the date the transcript is provided to the 17 witness' attorney. If not returned, the witness may be 18 deemed to have waived the right to make the changes, and 19 an unsigned copy may be used as though signed. 20 21 22 23 24 25 Sympson Reporting- 512.374.0596 1888  Page 9 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 PROCEEDINGS 2 THE REPORTER: Are there any special 3 stipulations today or just by the Rules? 4 MR. COHEN: Just regular stuff. 5 (Witness sworn.) 6 DANA DEBEAUVOIR, 7 having been first duly sworn, testified as follows: 8 EXAMINATION 9 BY MR. HERRING: 10 Q. Would you state your name for the record? 11 A. My name is Dana DeBeauvoir. 12 Q. And Ms. DeBeauvoir, you are the county clerk of 13 Travis County, right? 14 A. Travis County Clerk. 15 (DeBeauvoir Exhibit No. 1 marked) 16 Q. (BY MR. HERRING) And let me hand you a copy of 17 what I have marked as Exhibit 1, which I believe is your 18 resume. 19 A. (Moved head up and down.) 20 Q. And is that what that is? 21 A. Yes, sir. 22 Q. And that's current? 23 A. Yes, it is. 24 Q. Okay. And I just want to ask you-- it's a 25 lengthy resume. I just want to ask you a few points Sympson Reporting- 512.374.0596 1889  Page 37 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 A. Pretty commonly, yes. 2 Q. Same process, generally? 3 A. Generally, yes. 4 Q. And is that true for election jurisdictions 5 throughout Texas? 6 A. Yes, it is. 7 Q. And do they all follow that same, generally, 8 standard process? 9 A. Yes, they do. 10 Q. Now, in Ms. Pressley's deposition, I asked her 11 about a couple of locations. The Highland Mall location 12 and then the Airport Boulevard location. And it turned 13 out, it would -- according to Google Maps, it would take 14 about three minutes to drive from the one location to 15 the other. 16 MR. COHEN: Objection; form. 17 Q. (BY MR. HERRING) And Ms. Pressley said that 18 that's voter disenfranchisement, to have to drive three 19 minutes. 20 MR. COHEN: Objection; form. 21 Q. (BY MR. HERRING) In your -- in your opinion, 22 is that -- is that disenfranchisement, to drive for 23 three minutes? 24 MR. COHEN: Objection; form. 25 A. None of the places that we used for the -- for Sympson Reporting- 512.374.0596 1917  Page 38 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 the runoff election, are inconvenient, nor represented 2 any particular obstacle or barrier for voters. We 3 believe everything was fair and equitable, in the 4 distribution of those vote centers for the runoff 5 election. 6 MS. THOMAS: Objection; form. 7 Q. (BY MR. HERRING) Since we've got some -- a 8 series of objections, why don't we ask you a related 9 question. 10 Do you have an opinion concerning whether 11 the voting locations used in the runoff, were fair and 12 reasonable? 13 A. Do I have an opinion? Yes, I have an opinion. 14 Q. And what's the opinion? 15 A. Yes. The opinion is -- 16 MR. COHEN: Objection; form. 17 A. they were all very much reasonable, 18 ADA-compliant, fully accessible, well-known, well-used, 19 and fully advertised; so they were fair and equitable. 20 Q. (BY MR. HERRING) Did you receive any input 21 from anyone, to the effect of, "Well, we ought to change 22 some voter locations in District 4 to effect the outcome 23 of the election"? 24 A. I received nothing. No input. 25 Q. And would you have -- if somebody came to you Sympson Reporting- 512.374.0596 1918  Page 40 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 votes than Ms. Pressley? 2 A. Correct. 3 Q. Thank you for your patience. 4 MR. HERRING: I'll pass the witness. 5 We'll play musical chairs here, and Mr. Cohen will ask 6 some questions. 7 THE WITNESS: Okay. 8 Do you want to take a break? 9 MS. THOMAS: I was going to say, how long 10 have we been going? 11 (Simultaneous speaking - unreportable) 12 MR. HERRING: Let's take a little break. 13 MS. THOMAS: Can we take a break, just 14 because it's a good stopping point? 15 MR. HERRING: Yeah. That's great. 16 THE WITNESS: Okay. All right. 17 (Recess 10:23 a.m. - 10:38 a.m.) 18 (DeBeauvoir Exhibit Nos. 6 - 12 marked) 19 EXAMINATION 20 BY MR. COHEN: 21 Q. Good morning, Ms. DeBeauvoir. 22 A. Good morning, again. 23 Q. We have known each other 24 A. Many years. 25 Q. since you started -- the first time you ran Sympson Reporting- 512.374.0596 1920  Page 41 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 for election. I think 2 A. Yeah. 3 Q. -- I was a big supporter of you then -- 4 A. You are. 5 Q. -- and I have been ever since. 6 A. I know. And I'm a fan of yours. 7 Q. That's good. Okay. So I know that you -- what 8 you want to do is make sure that you have the true 9 results of every election that you're in charge of, 10 correct? 11 A. That's correct. 12 Q. And that you want to be able to verify the 13 results of the election if someone challenges that. 14 A. Correct. 15 Q. Okay. And so we are here because someone 16 challenged them 17 A. Uh-huh. 18 Q. -- and we just -- we're not sure that we had a 19 system in place that really actually verified it. Okay? 20 A. I understand. 21 Q. All right. So I'm going to show you -- and you 22 have said that, in your opinion, a cast vote record is 23 the same as an image of a ballot, correct? 24 A. Yes 25 Q. And is that -- Sympson Reporting- 512.374.0596 1921  Page 42 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 A. it is. 2 Q. because what everybody else told you, or do 3 you actually believe that? 4 A. I actually believe that. 5 Q. And you believe that's the best way to 6 double-check the computer's compilation of the votes on 7 election day? 8 A. I believe it's the only way to know, yes. 9 Q. The only way. Okay. So I'm going to show you 10 what's marked as Exhibit 10. It's a little bit out of 11 order. 12 MR. COHEN: Would you give Mr. Herring a 13 copy of his 14 MS. PRESSLEY: Okay. Is this it? 15 MR. COHEN: Yeah. It's the cast vote 16 record. 17 MS. PRESSLEY: Okay. 18 Q. (BY MR. COHEN) What is that, Exhibit 10? 19 A. It looks like an election day report. 20 Q. Is that a cast vote record? 21 A. Yes, I believe it is. This is 22 Q. So on election day -- let's go through this. I 23 know we all know this, but 24 A. Uh-huh. Okay. 25 Q. Okay. So the voter comes in. They sign in Sympson Reporting- 512.374.0596 1922  Page 45 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 MS. THOMAS: Yes. Yes. I'm sorry. 2 A. This is what a by-mail ballot would look like. 3 Q. (BY MR. COHEN) Okay. That's 4 A. This is sort of like an optical scan ballot. 5 Q. Okay. And that says it says "Sample Ballot" 6 on the side of it. 7 A. Okay. This is what a by-mail ballot looks 8 like. 9 Q. Okay. 10 A. Our sample ballots don't look like this. I 11 realize it says that on the side. 12 Q. Yeah. 13 A. This is what a by-mail ballot looks like. It 14 looks like an optical scan ballot. 15 Q. Okay. And then I'll show you, marked 16 Exhibit 8, and what is that? I thought that was 17 what a 18 A. Same thing. 19 Q. That's what a mail-in ballot looks like. You 20 said that -- is that correct? 21 A. By mail, yes, uh-huh. 22 Q. Okay. All right. And then when a person goes 23 to vote at the machine, No. 7 and No. 8 are -- it may be 24 a little bit different, but that's what they look at, in 25 deciding whether -- what -- who they want to vote for; Sympson Reporting- 512.374.0596 1925  Page 47 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 opportunity to change it. 2 Q. Okay. Right. And if you don't change it, 3 that's who you vote for? 4 A. Correct. 5 Q. Okay. But when you make your decision, you're 6 looking at Exhibit -- something like Exhibit 8 or 9, not 7 something like Exhibit 10? 8 A. No. 9 MS. THOMAS: Objection, form. 10 A. No. This is your final chance. It'll look 11 like this. 12 Q. (BY MR. COHEN) Okay. 13 A. It's a - - it looks like the summary screen. 14 Q. Exhibit No. 8 or 9 is what shows up in your 15 face when you try to decide who you want to vote for, 16 correct? 17 A. You voting. The process, yes. 18 Q. Yes. Okay. 19 A. Correct. 20 Q. And so you don't see No. 10 when you're 21 deciding who to vote for. You see No. 10 to make sure 22 that who you marked on Exhibit 8 is what you really want 23 to do; is that correct? 24 MS. THOMAS: Objection -- 25 A. No. Sympson Reporting- 512.374.0596 1927  Page 48 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 MS. THOMAS: form. 2 Hang -- just let me just get the 3 objection in, and then you can answer. 4 Q. (BY MR. COHEN) You still have to answer the 5 question. You said "No"? 6 A. Oh, excuse me. No. It's -- it's not. This is 7 a part of the final decision process, and you still have 8 the chance to change it, and it does look exactly like 9 the summary screen. 10 Q. Okay. So when you see that, it's asking you if 11 you want to change 12 A. It is asking you -- 13 Q. what you did on 14 THE REPORTER: Wait. One at a time. 15 Q. (BY MR. COHEN) Hold on. It -- when you see 16 Exhibit 10, it's asking you if you want to change what 17 you marked on Exhibit 7 or 8? 18 A. Correct. 19 Q. Okay. And you're saying-- it's your opinion, 20 I guess -- or the electronic system tells you that the 21 ballot is -- the last chance, this No. 10, your last 22 chance to change, is -- is what you considered to be the 23 ballot the image of the ballot? 24 A. Correct. 25 Q. Okay. And then Exhibit 10 is somehow preserved Sympson Reporting- 512.374.0596 1928  Page 49 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 somewhere in the voting machine? 2 A. Multiple places. 3 Q. Okay. Where is it 4 A. Multiple redundancy. 5 Q. Where is it preserved? 6 MS. THOMAS: Objection; form. 7 You can answer as -- 8 A. It is preserved twice on the eSlate and once in 9 the JBC. I think that's correct. Or it may be the 10 opposite. It may be twice in the JBC and once in the 11 eSlate. And when I need to correct my answer. It's 12 twice in the JBC and once on the eSlate. 13 Q. (BY MR. COHEN) Okay. What is the JBC? 14 A. Judge's Booth Controller. It's the device that 15 stores the inventory of unvoted ballots, the inventory 16 of voted ballots, and the access codes that qualify -- 17 once a qualified voter is ready to vote, they give the 18 voter, so they can start the process. 19 Q. Okay. So Exhibit -- versions of Exhibit 10, 20 depending -- depending on that the voter verified what 21 their choices were 22 A. Yeah. 23 Q. -- are in the JBC in two places? 24 A. Two places. 25 Q. Where in -- where would we find them? Sympson Reporting- 512.374.0596 1929  Page 50 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 A. It would be in in 2 MS. THOMAS: Objection; form. 3 A. in medium stored on the JBC. And it's two 4 different kinds of medium. One of them looks kind of 5 like a disk, and one of them looks like -- I think, 6 something like a flash drive. 7 Q. (BY MR. COHEN) And what kind of program is 8 that? 9 A. I don't know. 10 MS. THOMAS: Objection; form. 11 Q. (BY MR. COHEN) You don't know? Is it a 12 Microsoft kind of function -- system or -- 13 A. No. 14 MS. THOMAS: Objection; form. 15 Q. (BY MR. COHEN) Okay. 16 A. It was proprietary. 17 MR. HERRING: Mr. Cohen? 18 MR. COHEN: Yes. 19 MR. HERRING: I don't want to clutter up 20 the record with objections. Can I ride on her 21 objections to form, or do you want me to 22 MR. COHEN: That's fine. 23 MR. HERRING: -- lodge independent 24 MR. COHEN: That's fine, because, really 25 she's not representing a party and won't be able to make Sympson Reporting- 512.374.0596 1930  Page 51 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 objections at the trial 2 MR. HERRING: Well, that's why I'm 3 MR. COHEN: -- so I understand. 4 MR. HERRING: That's why I'm asking. 5 MR. COHEN: That's -- that's fine. If you 6 want her to make objections for you, I will accept that. 7 MR. HERRING: Well, for her objections to 8 form, I just want to be able to stand on those and have 9 your rule 11 agreement that I can. 10 MR. COHEN: You can stand on those. 11 MR. HERRING: Okay. 12 Q. (BY MR. COHEN) Okay. Now, you have a website 13 that talks about the E-voting system, correct? 14 A. Correct. 15 Q. Is this Exhibit No. 6 an accurate picture of 16 the website page? 17 A. I believe so, yes. 18 Q. Okay. And do you see where I have marked -- 19 MS. THOMAS: Objection; form. 20 Go ahead. 21 Q. (BY MR. COHEN) Do you see where I have marked 22 on there -- that's probably why she's objecting; there's 23 a mark on there that I made, that shows what I'm talking 24 about. I don't want to go over the whole page. I just 25 want to go over that line. And what does it say? Sympson Reporting- 512.374.0596 1931  Page 53 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 Q. (BY MR. COHEN) Well, it doesn't say "Official 2 Ballot" on it, does it? 3 MS. THOMAS: Objection; form. 4 You can answer. 5 A. I don't think I ever really noticed. 6 Q. (BY MR. COHEN) There's a lot of other things 7 that the statutes require to be on the ballot, that are 8 not on Exhibit 10. Isn't that true? 9 MS. THOMAS: Objection; form. 10 A. I don't know. 11 Q. (BY MR. COHEN) You don't know what the law 12 requires to be on a ballot? 13 MS. THOMAS: Objection; form. 14 Q. (BY MR. COHEN) It's okay if you don't. I 15 mean, most people don't, I'm sure. 16 MS. THOMAS: Objection; form. 17 A. I know that there are huge differences between 18 what the law says for paper ballots and what the law 19 says for electronic. And I'd have to have the law in 20 front of me, to make the distinction between the two. 21 Q. (BY MR. COHEN) Do you think there's a 22 description in the law, of what needs to be on an 23 electronic ballot? 24 MS. THOMAS: Objection; form. 25 A. I think it would take a thorough reading of the Sympson Reporting- 512.374.0596 1933  Page 54 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 code, to make those distinctions. No, I don't think 2 it's in one place. 3 Q. (BY MR. COHEN) Okay. But there is a place 4 where a ballot is defining what has to be on a ballot 5 A. Paper ballot. 6 Q. somewhere? 7 A. yes. 8 Q. Yes. Does it say "paper ballot"? 9 A. Probably. 10 Q. Okay. But you could be wrong about that? 11 MS. THOMAS: Objection; form. 12 A. I don't think so. 13 Q. (BY MR. COHEN) Okay. Is this a paper ballot, 14 Number 7 15 A. Yes. 16 Q. -- and 8? 17 A. Yes. 18 Q. This is a paper ballot? 19 A. That's what it look-- that's what a paper 20 ballot looks like. This is a representation of a paper 21 ballot. That's why it said it's by mail. 22 Q. Okay. 23 (DeBeauvoir Exhibit No. 13 marked) 24 Q. (BY MR. COHEN) I'm showing you what's marked 25 as Exhibit 13. Sympson Reporting- 512.374.0596 1934  Page 55 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 MR. COHEN: Do we have another copy of 2 this for him? 3 MS. PRESSLEY: Sure do. 4 Q. (BY MR. COHEN) Do you know what that is? 5 A. Yes. 6 Q. What is that? 7 MS. PRESSLEY: What number is that? 8 MR. COHEN: 13. 9 MS. PRESSLEY: All right. 10 A. This document, Exhibit 13, looks like one of 11 the tally sheets that we used for the recount. 12 Q. (BY MR. COHEN) Okay. And it's got your 13 that little red thing over there -- 14 A. Uh-huh. 15 Q. -- that's -- that's your "DD"? 16 A. Yes. 17 Q. Okay. So do you have any question about 18 whether that's an accurate version of what you used for 19 the recount? 20 A. I don't think so. 21 Q. You think it is? 22 A. I think it is. 23 Q. Okay. 24 MS. THOMAS: Objection; form. 25 Q. (BY MR. COHEN) Okay. I'll show you what's Sympson Reporting- 512.374.0596 1935  Page 56 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 marked as Exhibit 12. If you want to look through that 2 and see what ... 3 A. All right. 4 Okay. 5 Q. Does that look, to you, like the audit log from 6 the runoff election? 7 A. I believe so. 8 MS. THOMAS: Objection; form. 9 THE WITNESS: I'm sorry. 10 A. I believe so. 11 Q. (BY MR. COHEN) Okay. Now, Let me get back to 12 one thing. Do you -- is there -- does the eSlate system 13 have a tally capability? 14 A. Yes. 15 Q. Could the eSlate system make a copy of the 16 voter's action on the actual ballot, that it looks at it 17 when it makes a choice? 18 A. Not like 19 MS. THOMAS: Objection; form. 20 THE WITNESS: I'm sorry. 21 MS. THOMAS: Go ahead. 22 A. Not like this. 23 Q. (BY MR. COHEN) Okay. It cannot make a copy of 24 this? 25 A. No. Sympson Reporting- 512.374.0596 1936  Page 57 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 MS. THOMAS: Objection; form. 2 Q. (BY MR. COHEN) Okay. Can it make a copy of 3 something that -- where the ballot is marked? 4 MS. THOMAS: Objection; form. 5 A. No. 6 Q. (BY MR. COHEN) Okay. What version of the 7 eSlate system are you using right now? 8 A. I don't remember. We'll have to look it up. 9 It might say on here, someplace. I don't remember. 10 Q. You don't remember. Okay. 11 And as you updated the -- with the new 12 versions of the eSlate system, did you have some group 13 of scientists and election experts verify that there 14 was that the update was appropriate? 15 A. Yes. We go through a procedure, through the 16 Secretary of State's office; and the main verification 17 is called "hash code testing." 18 Q. That goes -- you do that every time you 19 incorporate an update into your system; is that correct? 20 A. Every time. 21 Q. Okay. Let's take a look at the what does 22 the Tally -- what does the Tally portion of the eSlate 23 system do? What is that function? 24 A. Tally is a separate module that is only used 25 for election night, to tally results from by-mail early Sympson Reporting- 512.374.0596 1937  Page 58 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 voting, in-person mail voting, and then election night. 2 And it's -- it's just -- as I said, it's a separate 3 module, it tallies the votes for election night, and 4 then it's also used to communicate those results to the 5 general public and to media, in a nutshell. 6 Q. So-- but it's not the official tally, correct? 7 A. It's not-- no. 8 Q. No. 9 A. It is for unofficial results on election night. 10 Q. Got you. Okay. Now, let me go back. I forgot 11 to ask you a question about Exhibit 13. 12 This is -- you'd say this was a tally of 13 the mail-in votes, correct? That it -- 14 A. I'm sorry 15 MS. THOMAS: Objection; form. 16 A. -- I can't tell. I would say this is not 17 by-mail ballots. It's the wrong numbers. This is just 18 a general tally. 19 Q. (BY MR. COHEN) Okay. Let me see. So you've 20 got the totals -- not the cumulative total, but the 21 totals at the bottom there -- 22 A. Uh-huh. 23 Q. -- I believe -- and you have to correct me if 24 I'm wrong-- or if you don't know, that's okay 25 whether or not those 240 to 240 shows that the mail-in Sympson Reporting- 512.374.0596 1938  Page 59 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 ballots 2 A. I see what you're saying. 3 Q. -- were equal? 4 A. You are correct. 5 Q. Okay. 6 A. I'm sorry. 7 Q. Thank you. I just needed to clear that up. 8 That's what I thought it said. 9 A. Yes. Sorry. 10 Q. Thank you. 11 So what security have you put in place to 12 prevent any kind of mistakes or -- intentional or 13 otherwise, in the tally of the voting? 14 A. It's a lengthy list. 15 MS. THOMAS: Objection; form. 16 Q. (BY MR. COHEN) Okay. We're --we're here to 17 hear it. 18 A. Okay. I need a little notepad. 19 MS. THOMAS: This is for what purpose? 20 THE WITNESS: Just for me to remember 21 which ones I'm telling him, for right now. 22 MS. THOMAS: Okay. This is going to be to 23 me. 24 MR. COHEN: I won't look at it. I won't 25 take it from her. Okay. Sympson Reporting- 512.374.0596 1939  Page 60 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 A. Gosh. 2 Q. (BY MR. COHEN) Do you know what? Let's do 3 this. Let me keep going, and we'll take a break and you 4 can go back to your office and, you know, make -- have 5 that answer to this question, once it gets 6 A. Okay. It's also on our website. I mean, it's 7 a rather lengthy list. 8 Q. Okay. What I want to ask you -- how they just 9 work. That's -- 10 A. Okay. Okay. I can -- 11 Q. that's the problem. 12 A. do that, too. 13 Q. Okay. Okay. Do you feel comfortable sitting 14 here and doing it, or would you -- 15 A. I do. I think 16 Q. rather take some time -- 17 A. I can get everything -- 18 Q. Okay. 19 A. -- if you'll just give me just a -- 20 Q. Sure. No. 21 A. -- couple of minutes. 22 Q. Take as long -- I don't want you to be at a 23 disadvantage, in answering the question. That's all. 24 A. If I forget something, we'll fill it in. 25 That's okay. I really am-- Sympson Reporting- 512.374.0596 1940  Page 120 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 Q. (BY MR. COHEN) I'll show you what's marked as 2 Exhibit No. 11. Tell me what that is. 3 A. I'm not sure. What is this? 4 Q. Well, does it look like it could be the CVR -- 5 the recount CVR file? 6 A. I believe -- 7 MS. THOMAS: Objection; form. 8 If you don't know what that is, just tell 9 him. 10 A. I'm-- I'm sorry. I -- it -- the format -- 11 MR. COHEN: Would you please stop coaching 12 your witness? 13 MS. THOMAS: Well -- 14 MR. COHEN: I'm going to call the -- you 15 just told her, if she doesn't know what it is, what to 16 answer. 17 MS. THOMAS: Well, but she already 18 MR. COHEN: You can't do that. 19 MS. THOMAS: said she 20 MR. COHEN: She is the one -- 21 MS. THOMAS: doesn't know what it is. 22 MR. COHEN: -- testifying, not you. 23 You -- you -- 24 MS. THOMAS: She already said she doesn't 25 know what it is. Sympson Reporting- 512.374.0596 2000  Page 121 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 MR. COHEN: Then let her testify to that. 2 That's fine. I don't want you saying anything. It's 3 against the Rules. 4 MR. HERRING: Mr. Cohen, you need to lower 5 your voice. 6 MS. THOMAS: You need to -- 7 MR. COHEN: So please stop. I'm almost 8 done. Just -- if you want to make 25 zillion ridiculous 9 objections, you go right ahead; but don't tell her 10 what -- don't make any comment, except "Objection, 11 form." 12 MS. THOMAS: Mr. Cohen 13 MR. COHEN: And that's all you get to do. 14 MS. THOMAS: if you've got a problem, 15 take it to the judge. 16 MR. COHEN: Yeah. 17 MS. THOMAS: But right now -- 18 MR. COHEN: Well, you're still doing it. 19 MS. THOMAS: -- she already told you 20 MR. COHEN: You're still doing it. You're 21 still violating the Rule. 22 MS. THOMAS: You're the one -- 23 MR. COHEN: Why don't you just stop? 24 MS. THOMAS: If you have a problem, take 25 it to the judge. Sympson Reporting- 512.374.0596 2001  Page 122 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 MR. COHEN: I have a question for the -- 2 MS. THOMAS: Ask her the -- 3 MR. COHEN: -- for the witness. 4 MS. THOMAS: -- question, then. 5 MR. COHEN: I did. I asked her a 6 question, and now that you've talked so many times and 7 told her all what to say -- 8 MS. THOMAS: I did not. 9 MR. COHEN: we don't really know what 10 the question was anymore 11 MR. HERRING: Mr. Cohen -- 12 MR. COHEN: -- so I'll ask it again. 13 MR. HERRING: -- ask the question. Move 14 on. Stop yelling. 15 Q. (BY MR. COHEN) Does that look, to you, like it 16 could be the recount CVR file? 17 A. Maybe. Here is the Mark, here is what my 18 problem is with it: I don't recognize the format, at 19 all. 20 Q. Yeah. Okay. That's -- 21 A. The data might be something I'd recognize, but 22 this is completely unfamiliar to me. 23 Q. That's perfectly all right. Thank you. 24 Okay. Did your office have any recount 25 activities on January 4th, 5th, or 6th? Sympson Reporting- 512.374.0596 2002  Page 130 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 MR. HERRING: That's 16. 2 MR. COHEN: Oh, that's 16? 3 MR. HERRING: Yeah. 4 Do the same with that one. 5 (DeBeauvoir Exhibit Nos. 17 marked) 6 Q. (BY MR. HERRING) And I'll show you 17 and ask 7 you to identify what's the notice to and what's the new 8 location? 9 A. It says Highland Mall is the previous location 10 and that the Travis County main location is the new one. 11 Q. Okay. 12 (DeBeauvoir Exhibit Nos. 18 and 19 marked) 13 Q. (BY MR. HERRING) And all of these that I'm 14 showing you, were they all posted at the old voting 15 location? 16 A. At the old location, correct. 17 18. 18 Q. And what is 19? 19 A. 19 is the location posted at McBee Elementary 20 School, indicating that it was the old location; and the 21 new location is Walnut Creek Elementary. 22 (DeBeauvoir Exhibit No. 20 marked) 23 Q. (BY MR. HERRING) And let me show you what's 24 been marked 20. 25 A. A notice posted, indicating that Austin Sympson Reporting- 512.374.0596 2010  Page 131 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 Brethren was the old location and that Lanier High 2 School is the new location for the runoff election. 3 Q. And all of those were posted to assist voters? 4 A. Posted, correct. 5 Q. Were the new voting locations also available in 6 multiple other forms, such as websites? 7 A. Correct. They're on our websites, they're in 8 paper forms, they're on the County Clerk's website, the 9 County website, the City website. 10 Q. Thank you. 11 MR. HERRING: Pass the witness. 12 MR. COHEN: No further questions at this 13 time. 14 (Deposition concluded at 12:24 p.m.) 15 16 17 18 19 20 21 22 23 24 25 Sympson Reporting- 512.374.0596 2011  Page 132 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 CAUSE NO. D-1-GN-15-000374 2 LAURA PRESSLEY IN THE DISTRICT COURT Contestant 3 4 vs. TRAVIS COUNTY, TEXAS 5 6 GREGORIO "GREG" CASAR 7 Contestee 201ST JUDICIAL DISTRICT 8 ***************************************** 9 REPORTER'S CERTIFICATION 10 ORAL DEPOSITION OF DANA DEBEAUVOIR 11 MAY 11, 2015 12 ***************************************** 13 14 I, KATHERINE A. BUCHHORN, Certified Shorthand Reporter in and for the State of Texas, hereby certify 15 to the following: 16 That the witness, DANA DEBEAUVOIR, was duly sworn by the officer and that the transcript of the oral 17 deposition is a true record of the testimony given by the witness; 18 That the deposition transcript was submitted on 19 May 15, 2015, to the witness, DANA DEBEAUVOIR, c/o SHERINE E. THOMAS, for examination, signature, and 20 return to SYMPSON REPORTING by June 4, 2015. 21 That the amount of time used by each party at the deposition is as follows: 22 MR. CHARLES HERRING, JR. - 0 Hours, 57 Minutes MS. SHERINE E. THOMAS - 0 Hours, 0 Minutes 23 MR. MARK COHEN - 1 Hour, 33 Minutes 24 That pursuant to information given to the deposition officer at the time said testimony was taken, the 25 following includes counsel for all parties of record: Sympson Reporting- 512.374.0596 2012  Page 133 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 FOR THE CONTESTANT, LAURA PRESSLEY: MARK COHEN 2 THE LAW OFFICES OF MARK COHEN & ROSE COHEN 805 W. lOth Street, Suite 100 3 Austin, Texas 78701 512.474.4424/512.472.5444 (fax) 4 mark@cohenlegalservices.com 5 FOR THE CONTESTEE, GREGORIO "GREG" CASAR: MR. CHARLES HERRING, JR. 6 HERRING & IRWIN, L.L.P. 1411 West Avenue 7 Austin, Texas 78701 512.320.0665/512.519.7580 (fax) 8 cherring@herring-irwin.com 9 FOR THE DEPONENT, DANA DEBEAUVOIR: SHERINE E. THOMAS 10 TRAVIS COUNTY 314 W. 11th Street 11 Austin, Texas 78701 512.854.9513/512.854.4808 (fax) 12 sherine.thomas@traviscountytx.gov 13 I further certify that I am neither counsel for, 14 related to, nor employed by any of the parties or attorneys in the action in which this proceeding was 15 taken, and further that I am not financially or otherwise interested in the outcome of the action. 16 Further certification requirements pursuant to 17 Rule 203 of TRCP will be certified to after they have occurred. 18 Certified to by me this 14th day of May, 2015. 19 20 21 /s/ Katherine A. Buchhorn KATHERINE A. BUCHHORN, 22 CSR Expiration: 12/31/15 SYMPSON REPORTING 23 Firm Registration No. 696 7800 N. MoPac Expressway, Suite 120 24 Austin, Texas 78759 512-374-0596/512-697-8313 (fax) 25 office@sympsonreporting.com Sympson Reporting- 512.374.0596 2013  Page 134 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 FURTHER CERTIFICATION UNDER RULE 203 TRCP 2 3 The original deposition of DANA DEBEAUVOIR was/was not returned to the deposition officer on or before 4 , 2015. If returned after the stipulated-aate,-the original deposition was returned on 5 ; 6 If returned, the attached "Changes and Corrections" page contains any changes and the reasons therefor; 7 If returned, the original deposition was delivered 8 to SHERINE E. THOMAS, 314 W. 11th Street, Granger Building, Suite 420, Austin, Texas 78701, Custodial 9 Attorney; 10 That $ is the deposition officer's charges to HERRING & IRWIN, L.L.P., 11 1411 West Avenue, Suite 100, Austin, Texas 78701, attorney for GREGORIO "GREG" CASAR, for preparing the 12 original deposition transcript and any copies of exhibits; 13 That the deposition was delivered in accordance with 14 Rule 203.3, and that a copy of this certificate was served on all parties shown herein and filed with the 15 Clerk. 16 Certified to by me this day of 20 17 18 19 KATHERINE A. BUCHHORN, Texas CSR 2788 20 CSR Expiration: 12/31/15 SYMPSON REPORTING 21 Firm Registration No. 696 7800 N. MoPac Expressway, Suite 120 22 Austin, Texas 78759 512-374-0596/512-697-8313 (fax) 23 office@sympsonreporting.com 24 25 Sympson Reporting- 512.374.0596 2014  Page 135 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 CHANGES AND CORRECTIONS 2 WITNESS NAME: DANA DEBEAUVOIR 3 DATE: MAY 11, 2015 4 Reason Codes: ( 1) to clarify the record; ( 2) to conform to the facts; ( 3) to correct a transcription error; ( 4) 5 other (please explain) . 6 PAGE/LINE CHANGE REASON CODE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sympson Reporting- 512.374.0596 2015  Page 136 Pressley vs. Casar Dana Debeauvoir- May 11, 2015 1 SIGNATURE 2 3 I, DANA DEBEAUVOIR, have read the foregoing 4 deposition and hereby affix my signature that the same 5 is true and correct, except as noted on the previous 6 page. 7 8 9 DANA DEBEAUVOIR 10 THE STATE OF 11 COUNTY OF 12 Before me, _________________ , on this day personally 13 appeared DANA DEBEAUVOIR, known to me (or proved to me 14 under oath or through (description of 15 identity card or other document) to be the person whose 16 name is subscribed to the foregoing instrument and 17 acknowledged to me that she executed the same for the 18 purposes and consideration therein expressed. 19 Given under my hand and seal of office this 20 day of ' 20 21 22 23 NOTARY PUBLIC IN AND FOR 24 THE STATE OF 25 COMMISSION EXPIRES: Sympson Reporting- 512.374.0596 2016  EXHIBIT C The County Clerk has produced everything requested that fell within the scope of the Judge's Order on the County's objections to the first set of requests and Motion for Third Party Discovery Control Plan. Andrew From: Mark Cohen [mailto:mark@cohenleqalservices.com] Sent: Monday, May 18, 2015 3:38 PM To: Andrew Williams; 'darogers@aol.com' Cc: cherrinq@herring-irwin.com; laurenbross@qmail.com; 'kurt@kuhnhobbs.com'; 'jpalvino@mcginnislaw.com'; Sherine Thomas; Pat Kelly; Amy Pollock; Amy Murray; Tiffaney Gould Subject: RE: Pressley: Response re Privilege Log Request Do I understand that other than what is listed in the log the county clerk has produced everything requested in the request for production it received from Pressley?? The County Clerk has produced all responsive documents that fell within the scope of discovery and has provided a log of all documents withheld as privileged. The Clerk stand on her objections as asserted in her response to your first request for production. Andrew 4531  5/19/2015 6:27:35 PM Velva L. Price District Clerk Travis County D-1-GN-15-000374 No. D-1-GN-15-000374 LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § § GREGORIO "GREG" CASAR § Contestee § OF TRAVIS COUNTY, TEXAS § § 201 st JUDICIAL DISTRICT CONTESTANTS' SIXTH AMENDED ORIGINAL CONTEST OF ELECTION, FOR THE OFFICE OF THE AUSTIN CITY COUNCIL, DISTRICT 4 TO THE HONORABLE JUDGE OF SAID COURT NOW COMES, Laura Pressley, Contestant, and files this Sixth Amended Original Petition for Election Contest for the Office the Austin City Council, District 4 (Petition) against Gregorio "Greg" Casar, Contestee. 1 In support of this election contest, Dr. Pressley will respectfully show as follows: I. DISCOVERY 1. The contestant intends that discovery be conducted under level three, a custom discovery plan for election contest devised with the approval of the court. II. SUMMARY 2. This contest is based on the facts that election irregularities, mistakes, manual, mechanical and electronic errors occurred with the election activities and tabulation of the votes that were cast using the electronic voting machines during Early Voting and on Election Day for the December 1 This 6th Amended Petition is filed in response to the Discovery production of Travis County and has more specific allegations pleaded. Also, this Sixth Amended Petition is filed in Response to Contestee Gregorio "Greg" Casar's Answer and Special Exceptions to Contestant's Original Contest of Election, and the Court's order of Aprill3, 2015 regarding those Special Exceptions, and Casar's Motion to Strike the Fifth Amended Petition. Pressley 61h Amended Election Contest p.l 860 16, 2014 Joint Special Runoff Election for the District 4 Austin City Council City of Austin election (referred to as the "Runoff') and January 6, 2015 District 4 Austin City Council Recount (referred to as the "Recount"). 3. There are numerous election irregularities in the administration and results tabulation of the Runoff election. Specifically, the most material issues are related to: a. nine instances of corrupt Mobile Ballot Box errors during vote tabulation on election night at Central Counting, b. missing data log entries in the vote tabulation systems, the Tally Audit and Ballot Now audit logs, c. suspicious mathematical patterns observed in the Runoff Election results that show them to be erroneous and not credible, d. Travis County election officers instructing election officers to not print and retain crucial, mandated election records listing specific vote results for each candidate in a race (Zero Tapes, Tally/Results tapes), e. election equipment security seals that were improperly sealed, subsequently unsealed and replaced, f. not producing, counting and retaining statutorily required ballot images, g. obstructing Contestant's official poll watchers at polling locations and Central Counting after the polls closed. 4. These violations materially affected the outcome of the election in that an inordinate number of election irregularities occurred and there was a lack of accountability of election officers with regard to no printing of Zero Tapes, no printing of Results Tapes, denying office poll watchers access to election activities, improperly sealed electronic devices, security breaches of Pressley 61h Amended Election Contest p.2 861 the Tally vote tabulation system, corrupt Mobile Ballot Box entries, and Tally Audit log deletions. Because of the erroneous reported election results, the egregious election irregularities, the missing election records, possible criminal and fraudulent violations, the outcome of the Runoff cannot be known. 5. Specifically, these violations caused illegal votes to be counted and election officers failed to count legal votes correctly. In addition, the pervasive and numerous election irregularities make it impossible to conclude that the reported results are the true outcome of the election. Finally, because no ballots, or images of ballots were preserved by the Office of the Travis County Clerk, Dana DeBeauvoir, there are no ballots to count and no ballots to use to verify the electronic "cast vote records" in the Recount except for the paper Absentee/Mail-In ballots . 6. Section 221.0 12 of the Texas Election Code provides in pertinent part: Sec. 221.012. TRIBUNAL'S ACTION ON CONTEST. (a) If the tribunal hearing an election contest can ascertain the true outcome of the election, the tribunal shall declare the outcome. (b) The tribunal shall declare the election void if it cannot ascertain the true outcome of the election. 7. "A contestant seeking to have an election declared void under this provision must allege and prove that the true results of the election are impossible to ascertain." See City of La Grulla v. Rodriguez, 415 S. W2d 701, 703 (Tex.Civ.App. San Antonio 1967, writ refd n. r. e.)." Garcia v. Avila, 597 S.W.2d 400, 403, 1980 Tex. App. LEXIS 3027, 6 (Tex. Civ. App. San Antonio 1980, writ dism'd w.o.j.) 8. As will be presented below, many crucial election records for the 3,937 electronically cast ballots in the Runoff 2 are missing or corrupted3 on the Travis County's Hart Voting System: Ballot 2 Exhibit A, Runoff Recount Results showing Ballot by Mail ballots of 480, and Cast Vote Records (electronically cast Pressley 61h Amended Election Contest p.3 862 images, vote tabulation Tally Audit logs 4 , Zero Tapes 5 , Tally/Results tapes 6 •7 , Mobile Ballot Box . corruptwn · , 1mproper1y sea1ed secunty 89 . . sea1s 10r C': votmg • eqmpment • 10 , etc. 9. The only legal ballots that have been retained, produced and recounted by Travis County, are the 480 votes cast on paper, Mail in Ballots (Exhibit 1). These ballots show an exact tie at 240 ballots cast as votes for Pressley and 240 ballots cast as votes for Casar (Exhibit 1). Therefore, the outcome of the election is a tie and neither Pressley nor Casar may be declared the victor. 10. Given the only retained ballots show an exact tie, along with the numerous mathematical anomalies observed with the Runoff election results, the statutory and mandated retention of important election records is needed to determine the true outcome of the election. In the absence of these crucial election records, the outcome cannot be known and this Honorable Court cannot ascertain the true outcome of the Runoff election between Pressley and Casar, and thus declare the Runoff election void and order a new election. III. PARTIES 11. Contestant Laura Pressley is a resident of Austin City Council District 4, Travis County, Texas. She was a candidate in the Austin City Council District 4 Runoff Election on December 16, 2014. 12. Contestee Gregorio "Greg" Casar is a resident of Austin City Council District 4, Travis County, Texas. He was a candidate in the Austin City Council District 4 Runoff Election on ballots) of3,937. 3 Exhibit B, Tally Audit logs showing missing entries and multiple "Invalid/Corrupt MBB[Mobile Ballot Box]" errors. 4 Exhibit B, Tally Audit logs, 5 Exhibit C, Judges' Booth Controller (JBC) Judge's Envelope, p. xxx, Zero Tapes missing 6 Exhibit C, Judges' Booth Controller (JBC), Judge's Envelope cover states, "DO NOT PRINT THE TALLY" 7 Exhibit D, Travis County Clerk, Dana DeBeauvoir's Deposition regarding no Results tapes, p. 128, line 15. 8 Exhibit B, Tally Audit Logs, Mobile Ballot Box corruption on pgs. 5, 22, 23, 26, 27, 29 and 42. 9 Exhibit D, DeBeauvoir's deposition regarding MBB corruption errors, p. 98, lines 18-20, and p. 99, lines 4-9 10 Exhibit E, Hart Voting System election equipment with improperly sealed security seals, election official signed affidavits. Pressley 61h Amended Election Contest p.4 863 December 16, 2014. The election results were canvassed on December 30, 2014 and Mr. Casar was declared the victor by 1,291 votes. 11 A "manual recount" of all early voting, election day, provisional, and mailed-in ballots was attempted on January 6, 2015. 13. The mail-in ballots were exactly tied between the candidates, at 240 each, for a total of 480 votes (Exhibit A). The attempted recount was a nullity and a full recount was made impossible in that the attempted recount violated state law and the manual recount of the 3,937 electronically cast ballots (Exhibit A) was incorrectly performed 12 using of the "cast vote records" in lieu of "images of ballots cast." Based on the counting of "cast vote records" and mail in ballots, as could be predicted, the invalid recount did not change the reported results of the election and the original declaration of Mr. Casar as the victor for the runoff election did not change. 14. Casar was sworn into office on January 6, 2014. He has been notified of the filing of this action by a delivery of a copy of this Petition in accordance with TEX. ELEC. CODE§ 21.003(b). IV. JURISDICTION AND VENUE 15. Jurisdiction and venue in this case are proper and mandatory in Travis County because the office being sought is for a district entirely within the boundaries of Travis County under the Texas Elections Code, Section 232.006. V. FACTS Numerous Irregularities in Counting of Votes 16. Many election irregularities, errors, mistakes occurred with regard to the counting, tabulation, and reporting of votes for the District 4 Austin City Council Runoff Election and the 11 Exhibit F, Official December 16, 2014 Runoff Cumulative Election Results. 12 Though the County Clerk termed the action a "manual recount," because the event as it occurred did not satisfy statutory criteria, Pressley does not concede that what occurred was actually a statutory manual recount as defined by the Texas Election Code 128.001(a)2, 213.016, 214.049(e), 213.016. Pressley 61h Amended Election Contest p.5 864 Official Recount. Many of these unexplained gaps in security and defect vote counts at a very minimum made fraud possible and make ruling out fraud an impossibility. Unnatural Mathematical Patterns Raises an Inference That the Reported Runoff Results are Erroneous-November General Election and December Runoff Results Are the Same 17. The November 4, 2014 General Election for the District 4 Austin City Council City of Austin Election was comprised of 8 candidates and the December 2014 Runoff was comprised of 2 candidates (Pressley vs Casar). A statistical analysis of the results of the election showed mathematical anomalies with the General Election and the Runoff. See table below. Top 9 Prednds with> 200 Votes, SO% ofVoters November 4th Dec 16th Pd lP Casar lP+ GC lP% lP Casar Total lP% 155 188 517 71J5 27% 197 449 646 30% 222 275 354 &2.9 233 312 545 43% 135 128 498 626 20% 106 415 522 139--HH 251 2.59 510 49% 198 229 427 46% 217 176 2.59 435 40% 151 2.19 370 41% 149--Ave G so 306 385 2.1% 76 279 355 21% 140 240 181 421 5?;'1) 187 169 356 53% 1.64 82 157 239 34% 62 12.2. 1B4 34% 133 69 223 2.92. 24% 65 173 2.38 27% Election Overall Results 1489 1754 4243 35.1% 1275 3643 35.0% Average of Top 9 P<:ts (unweighted) 35.1% 35.1% 18. Voters m the top nme (9) precincts m the City of Austin District 4 election compnse roughly 80% of the total voters in the Runoff (as documented by Exhibit G). 13 The ratio of precinct level votes that the Contestant received compared to Contestee is the same ratio in the November General Election (8 candidates) as it was in the December Runoff Election (2 candidates), 35% vs 35% respectively. 14 13 Exhibit G, Comparison Results, p. 1. 14 Exhibit G, Comparison Results, p. 1. Pressley 61h Amended Election Contest p.6 865 19. In addition, the average of the percentages the Contestant received in the unweighted precincts compared to Contestee, in the November General Election and the December Runoff, are also equal at 35% and 35%, respectively. The fact that so many precincts showed exactly the same and unchanged results for the General Election and the Runoff is sufficient to raise an inference that the reported results are erroneous. 20. The summary analysis (Exhibit G, p. 1) of the precinct level voting results for the General Election 15 and the precinct level results for the Runoff Election, 16 show very unusual and unique mathematical patterns and anomalies. This analysis reveals the Runoff results are erroneous and are a result of counting and tabulation errors committed by Travis County and thus the outcome of the election cannot be determined. 21. Reviewing Travis County Voter election results for the General and Runoff Elections, there was an overall attrition of over 4,000 voters from the General and Runoff elections. The occurrence of duplicated relative results for Pressley and Casar for the General and Runoff Election shows the results are strictly isolated to the District 4 Pressley vs Casar race, are erroneous, and are indicative of errors committed by Travis County in the vote collection and/or tabulation and clearly raises an inference that the reported results are not accurate. 22. For voters in just the top 9 precincts, there was an attrition of at least 600 voters (who voted for either Pressley or Casar) between the General and the Runoff Elections24 · The unique occurrence that the results remain unchanged between Pressley's City Council General and Runoff is not correct. 23. From 2003 - 2014, a total of eleven races have resulted in a City of Austin City Council 15 Exhibit H, Official 2014 General Election Results by precinct, self-authenticating public record, website for the Travis County Clerks' Election Results: http://www.traviscountyclerk.org/eclerk/Content.do?code=E.l 16 Exhibit I, Official Runoff Election Results cumulative, and by precinct, self-authenticating public record, website for the Travis County Clerks' Election Results: http://www.traviscountyclerk.org/eclerk/Content.do?code=E.l Pressley 61h Amended Election Contest p.7 866 Runoff. 17 The graph below shows the ranges and standard deviations of the four, weighted and unweighted precinct results, values for those 11 races (similarly calculated as the Pressley race). 24. Furthermore, compared to the Pressley vs Casar race, no race in 11 years shows such a tight distribution with a standard deviation of0.06%. Ten races have greater than lOx the standard deviation (0.67% or higher) and three races show greater than 100x the standard deviation (7.05% or higher). Comparison of Retums for all Austin City Run Off Races G.eru\'ral Eledlonvs Run Off (Rimse and Standard Oeviatkm Shown) f'.D • LH'l> Q >-.!>·(Pa"i l'r b : a person strikingly like another person 4 a : a tangible or visible representation : incarnation b archaic : an illusory form : apparition 5 a (1): a mental picture or impression of something (2): a mental conception held in common by members of a group and symbolic of a basic attitude and orientation b : idea, concept 6: a vivid or graphic representation or description 7: figure of speech 8: a popular conception (as of a person, institution, or nation) projected especially through the mass media 9: a set of values given by a mathematical function (as a homomorphism) that corresponds to a particular subset of the domain 149. Thus, an "image" of a ballot cast, as "construed according to the rules of grammar and common usage," would require a "picture" or "reproduction" or "optical counterpart" or "visual representation" or "exact likeness" or "image" file, in something similar to a photograph, a bitmap, Jpeg, pdf, tif, etc. or similar computer format. 150. The Texas Election Code, Sec. 128.001(a)(2), requires that "The secretary of state shall prescribe procedures to allow for the use of a computerized voting system. The procedures must provide for the use of a computerized voting system with ... (2) a main computer to coordinate ballot presentation, vote selection, ballot image storage, and result tabulation." Pressley 61h Amended Election Contest p.41 900 151. A "Cast Vote Record" is nothing more than data storage file used for results tabulation. The Texas Government Code, Sec. 311.016(2) and (3) states: "MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute: (2) "Shall" imposes a duty. (3) "Must" creates or recognizes a condition precedent. 152. Since Section 128.0001 ofthe Election Code states that the "secretary of state shall prescribe procedures [which] must provide for the use of a computerized voting system with ... (2) a main computer to coordinate ... ballot image storage," the ballot image storage is a condition precedent to the legal use of any computerized voting system. 153. Travis County has failed to comply with this condition precedent to the legal conduct of an election. While this would theoretically affect other races decided in December of 2014, the statute of limitations has passed for all election contests save this one. 154. The Hart Electronic Voting system can, according to its manuals, store ballot images and cast vote records. 69 The sky will not fall if this Court orders Travis County to conduct this election in conformance with Texas Election Code, using capabilities that are already part of the Hart Intercivic Ballot Now system (Exhibit A, Attachment 6). Contests of all other elections that have been held are barred by limitations. According to the Hart Manual it is a simple fix to have the system preserve images of the ballots the voters use in deciding which candidate to vote for and that conforms to the legal definition of a ballot. 155. Further, the Texas Government Code, Sec. 311.021, states in pertinent part: Sec. 311.021. INTENTION IN ENACTMENT OF STATUTES. In enacting a statute, it is presumed that: (1) compliance with the constitutions of this state and the United States is intended; 69 Exhibit AB, Hart Ballot Now Operations Manual p. 24, 149, 259, 260 Pressley 61h Amended Election Contest p.42 901  (2) the entire statute is intended to be effective; (3) a just and reasonable result is intended; (4) a result feasible of execution is intended; and (5) public interest is favored over any private interest. 156. Because the "ballot image storage" is listed separately as a requirement in two different parts of the statute, it is a just and reasonable to construe the entire statute as operating under that feasible requirement that an actual "ballot image," instead of a mere tally of the "Cast Vote Records," be retained in the system in order to promote the public interest in transparent elections in which a human being can look at an image of a ballot and count by hand accordingly in a Recount, in a manner closely analogous to the way that ballots have been counted in America for centuries. 157. The private interest of saving money by using a system on the cheap that does not fulfill the public purpose of transparent elections is disfavored. The purpose of the Election Code is to provide an accurate and transparent method of electing representatives to government offices in a way that is both efficient and conducive to public faith in the process. 70 158. In Alvarez v. Espinoza, the court observed that "[t]he election code seeks to prevent error, fraud, mistake, and corruption, and to give effect to the will of the voters." 844 S.W.2d 238, 242 (Tex. App.-San Antonio 1992, writ dism'd w.o.j.) (emphasis added). The court continued: The public must have confidence that the election process is fair for all candidates .... Those who have studied history and have observed the fragility of democratic institutions in our own time realize that one of our country's most precious possessions is the commitment of our public officials to the rule of law-fair and evenhanded application of rules known in advance-and the widespread acceptance of election results. Id. at 249 (emphasis added). 70 "The purpose of the election code is to ensure that the true will of the voters is 'fairly expressed' and that the evidence of that expression is 'properly preserved.' Prado [v. Johnson, 625 S.W.2d 368 (Tex. Civ. App.--San Antonio 1981, writ dism'd w.o.j.))], 625 S.W.2d at 369-70." Gonzalez v. Villarreal, 251 S.W.3d 763,778 (Tex. App.-Corpus Christi 2013). The failures and mistakes illustrated in this Contest show that the will of voters was thwarted, and the evidence of that expression was not properly preserved. Pressley 61h Amended Election Contest p.43 902 159. The United States Supreme Court has observed that: [v ]oter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. The right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise. Purcell v. Gonzalez, 549 U.S. 1, 7 (2006) (per curiam) (internal citations and quotations omitted). 160. By throwing out illegitimate votes of nonresidents, and enforcing the strict procedures for storage of ballot images, use of only non-corrupt mobile ballot boxes and non-defective mobile ballot box readers which protect against fraud and exploitation of voters, see Guerrero v. State, 820 S.W.2d 378, 383 (Tex. App.-Corpus Christi 1991, pet. ref' d), this court will protect the franchise of all those District 4 voters who voted legitimately. The court should not hesitate, therefore, in ordering a clean election. 161. Because "ballot image storage" was not used by Travis County, as the statute requires, the ballot images from the runoff election are missing election records and there are no ballots that can be counted other than the Absentee/Mail in Ballots which resulted in a tie. Therefore the only true outcome that can be ascertained is a tie which requires a new election. "Election records" also include ballot boxes (containing voted ballots), tally sheets, absentee ballots, applications for absentee ballots in person and by mail, signature rosters for election day voting, and poll lists. Garcia v. Avila, 597 S.W.2d 400, 405 (Tex. Civ. App.-San Antonio 1980, writ dism'd). These items, and items like them, also constitute "precinct election records," as defined and used in chapter 66 of the code. In addition, section 273.003 lists election returns, voted ballots, and the signature roster as specific types of election records. TEX. ELEC. CODE ANN. § 273.003 (Vernon 1986). Based on the uses of the term "election records" and the examples listed within the code, we conclude "election records" are those which memorialize the actual election and the actual conduct of the election. Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 228-229, 2000 Tex. App. LEXIS 5773, 13-14 (Tex. App. Dallas 2000) 162. "Ballot images" are "'election records' ... which memorialize the actual election and the Pressley 61h Amended Election Contest p.44 903 actual conduct of the election." 163. Travis County has no ballot images. 164. Missing election records are, alone, sufficient grounds for this court to void the election. Garcia v. Avila, 597 S.W.2d 400, 403 (Tex. App.-San Antonio 1980) ("[B]ecause ofthe missing records it was impossible to ascertain the true results of the election. On that basis, the election was declared void and a special election was ordered.) 165. Similarly, in this case, because the election records are missing, this honorable Court must void the election and order a runoff election between the Contestant and Contestee on voting machines that "use ballot image storage" as required by Texas Election Code 128.001 (a). Contestee's amended motion for summary judgment must be denied. The unserious "argument" that erroneous agency interpretation can retroactively affect statutory history. 166. Contestee alleges, in what can only be described as a preposterous parody of statutory construction, that an ex post facto application of agency construction of language that flies in the face of plain meaning rule and which undermines the relevant federal standards and produces a result that is both absurd and at odds with the statutory intent is to control. 71 167. It is uncontested that the relevant Texas statutes were enacted in 1997 and 2003. 72 Those statutes require "ballot image storage." and "images of ballots cast." 168. In his motion for traditional summary judgment, Contestee attempts to create ambiguity in the reading of the statutes by asserting that various administrative agencies, years after the enactment of the statutes at issue, have redefined the words of the statutes in ways that are inconsistent with plain language and inconsistent with the meaning of the statutes as understood at 71 Texas Election Code, Sec. 128.00l(a)(2) 72 Texas Election Code, Sec. 213.016 Pressley 61h Amended Election Contest p.45 904 the time of their enactment. 169. This is, to put it generously, a badly mistaken view of statutory construction. 170. Administrative redefinition of statutes is not allowed. 171. Under Texas case law, as set forth in R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S. W3d 619, 625 (Tex. 2011), the Texas Supreme Court reaffirmed it's 20-year-old rule that limited the deference due to administrative determinations to those that are "'reasonable and do[] not contradict the plain language of the statute.' First Am. Title Ins. Co., 258 S. W3d at 632 (quoting Tarrant Appraisal Dist. v. Jl,foore, 845 S. W2d 820, 823 (Tex. 1993))." 172. The Safe Future Court added that "this deference is tempered by several considerations:" It is true that courts give some deference to an agency regulation containing a reasonable interpretation of an ambiguous statute. But there are several qualifiers in that statement. First, it applies to formal opinions adopted after formal proceedings, not isolated comments during a hearing or opinions [in a court brief]. Second, the language at issue must be ambiguous; an agency's opinion cannot change plain language. Third, the agency's construction must be reasonable; alternative unreasonable constructions do not make a policy ambiguous. 173. The plain language ofthe statutes require an "image" of a "ballot." A "Cast Vote Record," as a mere data record is neither "image" nor "ballot." 174. In Texas Dep 't of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004), the Texas Supreme Court, in overruling a 25-year-long pattern of erroneous interpretation of administrative law, made it clear that Texas embraces an unusually strong version of the plain meaning rule. If the statutory text is unambiguous, a court must adopt the interpretation supported by the statute's plain language unless that interpretation would lead to absurd results. See Tune v. Tex. Dep't ofPub. Safety, 23 S.W.3d 358, 363 (Tex.2000) ("We must enforce the plain meaning of an unambiguous statute."); Republic Bank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985) ("Unless a statute is ambiguous, we must follow the clear language of the statute."); Brazos River Auth. v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 109 n. 3 (1962) ("[O]perating as we are under a strict theoretical division of governmental powers, it would take a bit of Pressley 61h Amended Election Contest p.46 905  doing on the part of the judiciary to say, in the absence of ambiguous and uncertain statement or patent and manifest absurdity, that the Legislature intended something different from the clear import of the words chosen by it.. .. "); Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1039 (1916) (The literal meaning of a statute may be disregarded "only where it is perfectly plain that the literal sense works an absurdity or manifest injustice."). See also AIC Mgmt. v. Crews, 246 S.W.3d 640 (Willet, J., concurring) (internal citations omitted) (citing to Alex SheshunoffMgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644,652 n.4 (Tex. 2006) and 542 U.S. 241, 267, 124 S. Ct. 2466, 159 L. Ed. 2d 355 (2004) (Scalia, J., concurring in the judgment). 175. The language of 128.001(a)(2) and 213.016 is unambiguous. The application of the plain language does not lead to absurd results. The plain language does not work an absurdity or manifest injustice. Therefore, the Court must enforce the plain language requiring the storage and printing of images ofballots cast. 176. Contestee argues that the plain meaning rule does not apply, because subsequent statements by administrative agencies contradict the plain meaning. In support of this notion, Contestee cites Texas Government Code 311.011 (b): "Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." 177. First of all, it is obvious that there is no unanimous or consistent re-definition of a "ballot image" as a "Cast Vote Record" at the federal level, or even within the Texas Secretary of State's Office, or within the manuals of Hart InterCivic governing this very voting system. See supra, paragraphs 22-29. 178. Moreover, every suggestion of such a re-definition put forth by Contestee is dated AFTER the statutes were enacted in 1997 and 2003. 73 It is impossible that documents published AFTER the statutes were enacted were considered by the legislature, and intended to have effect in defining 73 The Texas Secretary of State references cited are in 2012, 2014 and 2015. A single Election Assistance Commission reference, which is mischaracterized as described supra, is dated 2007. There is no evidence that the "Words and phrases [] ha[ d] acquired a technical or particular meaning" prior to statutory enactment. Pressley 61h Amended Election Contest p.47 906 statutes written years before they were published. 74 The suggestion, once clearly explained, 1s obviously ludicrous. 179. If that were not enough reason to disregard the notion put forward by Contestee, the Safe Future deference "applies [only] to formal opinions adopted after formal proceedings, not isolated comments during a hearing or opinions [in a court brief]." (second bracket set in original.) 180. Contestee has put forward no evidence of any "formal opinions adopted after formal proceedings," and has explicitly attempted to rely on a 2008 "isolated comments during a hearing or opinions [in a court brief]." These random droppings are due no deference by this court .. 181. Contestee also rests its notion that the SOS may willy-nilly redefine the words in statutes on Section 52.075 of the Election Code. That section allows the SOS to "prescribe the form and content of a ballot for a ... electronic voting system .. to conform to the formatting requirements of the system." The limiting language in the provision does not allow the SoS to redefine the statute. The limiting language allows the SoS to change the form and content merely to the extent required to conform with fom1atting requirements of a computer system. This is unsurprising, necessary, and nowhere near as broad a grant of power as Contestee imagines. This allows the SoS to choose, for instance, among various image file formats. But it does not allow the SoS to ignore the requirement of Texas Election Code, Sec. 128.00l(a)(2) for "a main computer to coordinate ballot presentation, vote selection, ballot image storage, and result tabulation." How the SoS mandates compliance with the 128.001(a)(2) elements is discretionary under 52.075. If they mandate compliance with the 128.00l(a)(2) elements is not made discretionary by 52.075. Further, the more specific provisions of Election Code Chapter 124, SubChapter C Electronic Voting System Ballot, trump 52.075. (e.g., 74 Tex. Const., Art. 1, Sec. 16. states that "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made." There is no reason to believe that retroactive administrative rulings are in some way exempt from this rule. Pressley 61h Amended Election Contest p.48 907 the electronic system ballot must be a different color than the sample ballot, § 124.062; specific instructions are required, §124.062.) 182. A ballot is defined through requirements set forth in the Texas Constitution and the Texas Election Code. It must possess: a. a unique serial/ticket number (Texas Constitution, Article 6, Section 4 and Texas Election Code 52.062) b. the election name (Texas Election Code 52.063), of Joint Special Runoff Election, Travis County c. the election date (Texas Election Code 52.063), ofDecember 16, 2014, d. the designation of Official Ballot (Texas Election Code 52.064) e. a voting square to the left of each candidate's name (Texas Election Code 52.070), and f. voting instructions (Texas Election Code 52.070) 183. The cast vote records do not fulfill these requirements. 184. Consequently, the Court must reject any "cast vote records" counted, produced and tallied on election night and the recount because they do not meet the statutory standards of an Official Ballot and cannot be verified as representing the voter's intent in the District 4 Runoff race. This is especially true when the election tally is pervasively tainted s described above. 185. In addition, the Texas Election Code is very clear that "ballots," "images of ballots cast," and "ballot images" are to be counted and used to verify voters' intent when the election results are challenged. It is well known, that an actual digital, electronic image file in the form of various types such as a bitmap, pdf, jpg, png, etc. is a different type of file compared to a CVR dataset file. The legislature's specific language of "ballot image" provides a secondary method for verifying Pressley 61h Amended Election Contest p.49 908 ballot counts. Simply printing out the same CVR data to a predefined CVR template, and counting those CVR's which is what was already electronically counted, is not a verification method. 8.Re-canvass Should have Occurred with Mail in Ballots 186. The District 4 Austin City Council Election made material errors and should have been re- canvassed using the results of the recount of the Mail in Ballots (240 for Pressley and 240 for Casar) and the election should have been declared a tie between Contestant Pressley and Contestee Casar. 187. Travis County failed to follow statutorily required recount procedures and recounted the 3,937 votes which were illegal on two counts. Primarily, the 3,937 votes were not counted from "images ofballots cast." Secondarily, the 3,937 votes were not original Cast Vote Records-they were copies of Cast Vote Records that were aggregated into a pdf file that was generated in January 2015. Travis County made material errors because the 3,937 votes cast on the eSlate are illegal on both counts and the final canvassed result, which was derived from these illegal votes, is not the true outcome of the election; the true outcome is a tie. III. CAUSE OF ACTION 188. Contestant incorporates paragraphs 1 through 76 of this Petition herein 189. The runoff election for City Council of the City of Austin, Precinct 4 must be voided pursuant to Section 221.012 of the Texas Election Code and a new election held as described below because the true outcome cannot be ascertained or, in the alternative the only ballots cast in the election meeting legal requirements of a ballot resulted in a tie. 190. The result of these multiple irregularities, mistakes and possibility of fraud is that the result cannot be ascertained. The Court may request voters to disclose how they voted. Or, the Pressley 61h Amended Election Contest p.50 909 Court may declare the election void without attempting to determine how voters voted (Texas Election Code 221.009) and call for a new election. Dr. Pressley requests that such an election be timely set, and conducted in compliance with the Texas Constitution and the Texas Election Code. 191. In Texas Constitution, Article 6, Section 4, "In all elections by the people, the vote shall be by ballot..." The Texas Election Code 52.001, also stipulates, "the vote in an election is by official ballot. .. " Ballots are defined in Texas Election Code Chapter 52, Subchapter C. 75 192. In addition, the Texas Election Code (xxx) is very clear that "ballots," "images of ballots cast," and "ballot images" are to be counted and used to verify voters' intent when the election results are challenged. It is well known, that an actual digital, electronic image file in the form of various types such as a bitmap, pdf, jpg, png, etc. is a different type of file compared to a CVR dataset file. The legislature's specific language of"ballot image" provides a secondary method for verifying ballot counts. Simply printing out the same CVR data to a predefined CVR template, and counting those CVR's which is what was already electronically counted, is not a verification method. 193. Several election safeguards and procedures defined by the Legislature and the Secretary of State that are intended to prevent human errors were mistakenly not followed by Travis County. The mistakes and failure to adhere to the Secretary of State's procedures led to and caused errors, and illegal votes to be counted, legal votes to be not counted, and the election outcome cannot be 75 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name." (e) A square shall be printed to the left of each line provided for write-in voting under Section 52. 066(c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.) Pressley 61h Amended Election Contest p.51 910 known. 194. The sum total of all voting irregularities identified herein exceeds the number of votes by which the election was decided. 195. If no "images of ballots cast" can be retrieved, printed and counted, the true outcome of the election cannot be ascertained. The Court may order each of the more than 4,000 voters who voted in person to testify as to how they voted, pursuant to Texas Election Code Sec. 221.010. "SECONDARY EVIDENCE FOR UNAVAILABLE BALLOTS. 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." 196. In the alternative, if Travis County cannot produce "images of ballots cast" to be printed and counted, then Travis County cannot unequivocally determine the outcome of the election, and the election is void. If the court does not count cast vote records because they are not images of anything defined by law as a ballot then it can ascertain the election to be a tie by counting the Absentee/mail-In ballots either way as a matter of law, the Court must therefore order a new election. TEX. ELEC. CODE§ 232.041. 76 VI. PETITION TIMELY FILED 197. This Election Contest is brought in accordance with the provisions of TEX. ELEC. CODE §232.008, which requires the Original Petition to be filed with the District Court not later than the 301h day after the date the official result of the contested election is determined. 76 Sec. 232.041. NEW ELECTION ORDERED IF CONTESTED ELECTION VOID. In an election contest in which the contested election is declared void, the conrt shall include in its judgment an order directing the appropriate authority to order a new election. Pressley 61h Amended Election Contest p.52 911 198. On Tuesday, December 301h, the Mayor and City Council of Austin conducted an official canvass and certification of the Runoff results for all races on the December 16, 2014 ballot, including District 4. However a recount was conducted on January 6, 2015 and those results did not change. The deadline for submission of a petition in an election contest is January 29, 2015. The original petition was filed on or before that date and was timely filed. VII. CONDITIONS PRECEDENT 199. All conditions precedents to Pressley's relief requested herein have been performed or have occurred. Prayer 200. Therefore, based on the foregoing, the Contestant requests the Runoff election be declared void, a new Runoff be held at which images of the ballots the voter marks on an image that contains the legally required elements of an official ballot be preserved using procedures compliant with the Texas Election Code for use in the event of a contest, the Court award reimbursement for the cost of her election contest, recount fees, and that the Court grant all other and further relief, in law and in equity, to which she may be entitled. Respectfully submitted, David Rogers LAW OFFICE OF DAVID ROGERS By: Is/ David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836- Telephone 512-201-4082- Facsimile Pressley 61h Amended Election Contest p.53 912  Email: Firm(a}D ARogersLaw .com Mark Cohen 805 W. lOth Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney for Contestant Dr. Laura Pressley Pressley 61h Amended Election Contest p.54 913  CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on May 19,2015 on counsel of record as follows: Charles 'Chuck' Herring Jr. 09534100 cherring@herring-irwin. com Jess Irwin- 10425700 j ess@herring-irwin.com Lauren Ross - 24092001 laurenbross@herring-irwin. com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580 Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive,# 310 Austin, Texas 78731 Phone: (512) 476-6000 Fax: (512) 476-6002 ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR Jessica Belinda Palvino MCGINNIS, LOCHRlDGE & KILGORE LLP 600 Congress A venue Suite 2100 Austin, TX 78723 Phone:512-495-6000 Fax: 512 495-6093 jpalvino@mcginnislaw.com David A. Escamilla Travis County Attorney Sherine E. Thomas Andrew M. Williams Patrick M. Kelly Assistant County Attorneys Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767 Pressley 61h Amended Election Contest p.55 914 Phone: (512) 854-9472 Fax: (512) 854-4808 email: Sherine. Thomas@traviscountytx. gov, Pat.Kelly@traviscountytx. gov, andrew. williams@traviscountytx. gov By: Is/ David Rogers Pressley 61h Amended Election Contest p.56 915  5/20/201510:57:19 PM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-15-000374 D-1-GN-15-000374 LAURA PRESSLEY, § IN THE DISTRICT COURT Contestant, § § v. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR, § Contestee. § 201 st JUDICIAL DISTRICT CONTESTANT'S MOTION TO COMPEL TO THE HONORABLE JUDGE MILLS COMES NOW, Laura Pressley, Contestant herein, and seeks an order compelling the Travis County Clerk ("Clerk") to produce documents and in support thereof would show the following: I.. INTRODUCTION 1. Contestant moves this honorable Court to compel the Clerk of Travis County, Texas to provide documents responsive to her requests for production. While there is some overlap, basically, the Travis County Clerk has either failed to provide such responsive documents, made erroneous objections, or asserted privileges which do not comply with Texas Rule of Civil Procedure 193. 2. Procedurally, Travis County has not provided evidence to support the privileges they assert as required by TRCP 193.4. Rule 193.4(a) requires that "The party making the objection or claim of privilege must present any evidence necessary to support the objection or privilege." The privilege log provides no such evidence of the basis for the privileges asserted. Mere assertions are not enough to preclude Travis County from providing the documents requested. Pressley v. Casar Motion to Compel p.l 4501 3. Further, there are documents missing from the production requested that Travis County has asserted neither objection nor privilege. The responses are either unclear or incomplete. Since there are no timely objections or assertions of privilege as to the unclear or incomplete responses, the Travis County Clerk must provide the requested documents. 4. Based on the pleadings, dispositive motions, and expert 1 impressions on file with this Court, the documents sought by this motion to compel discovery responses are essential to Contestant's case for a new election. Contestant's response to Contestee's motions for summary judgment demonstrates potential corruption of the election process. Contestant's expert describes the necessity and materiality of the documents requested. The documents sought delve into the details of Travis County's process of conducting the December 2014 Runoff Election for City Council District 4 using electronirc voting machines and the proof that not only that the process itself was full of irregularities that materially affected the outcome, but that the process used by Travis County does not produce an "image of a ballot cast" as required by the Texas Election Code. 5. Contestant moves the Court issue an order to compel Travis County to produce the documents for which it claimed privilege as well as documents that are missing or clarification of the response. 6. Finally, should Travis County fail to comply with the Court's order, Contestant requests that the Court award attorney's fees and costs associated with this motion 1 Exhibit F, Expert's Mental Impressions and Exhibit G, Expert's Declaration in Lieu of Affidavit. Pressley v. Casar Motion to Compel p.2 4502  II. STANDARD TO COMPEL IN ELELCTION CONTEST 7. Texas Rule of Civil Procedure 193.1 states that "When responding to written discovery, a party must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made." See In re Allied Chern. Corp., 227 S.W.3d 652, 657 n.20 (Tex. 2007)("a party must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made.") Providing incomplete responses violates the Texas rules for discovery. 8. To the extent privilege is asserted based on an agreement with one of the parties, the agreement itself cannot form the basis of a privilege when portions of the information therein are discoverable. Fleming v. Ahumada, 193 S.W.3d 704, 716 (Tex.App. - Corpus Christi 2006) (citing Scott v. Mc!lhany, 798 S. W2d 556, 559-60, 34 Tex. Sup. Ct. J 64 (Tex. 1990) (discussing inability of litigants to use private agreements to block discovery of information and testimony sought by third parties); In re Cont'l Ins., 994 S. W2d 423, 426 (Tex. App.-Waco 1999, orig. proceeding) mand. granted In re Union Pac. Res. Co., 22 S. W3d 338, 43 Tex. Sup. Ct. J 145 (Tex. 1999) (discussing limitations on contractual provisions to require litigant to "raise frivolous objections or grounds for refusing to produce discoverable information"). See also In re DCP Midstream, L.P., 2014 Tex. App. LEXIS 11092 (Tex.App.- Corpus Christi 2014) ("the fact that a settlement agreement contains a confidentiality provision does not render the agreement or its contents undiscoverable as a matter of law ... Accordingly, the confidentiality provisions of the agreement do not insulate the settlement agreement from discovery if the discovery is otherwise warranted.") Pressley v. Casar Motion to Compel p.3 4503 9. Refusal to provide these documents and access to the election software and hardware used could deprive Contestant of evidence at trial relating to the actual malfunction of the electronic voting system actually used. III. FACTS 10. On March 19, 2015, Contestant served her First Requests for Production to Travis County, Texas County Clerk Dana DeBeauvoir, and she responded. See attached Exhibit A for the initial Request for Production, Exhibit B for Court's Order, Exhibit C for Privledge Log, Exhibit D for Email responses regarding repeated requests for Production The Travis County Clerk failed to provide documents in response to the following specific requests that were originally granted by Court (Exhibit E). 11. On April 13, 2015, the Court held that the Clerk was not required to produce access to proprietary information or inspection of direct electronic voting machines, eSlate voting system, Judge's booth controllers, software or hardware used in conjunction with eState system directly to Pressley. In attempted compliance with the order, the Clerk withheld that information from production and the equipment from inspection. 12. The Clerk provided the privilege log attached hereto as Exhibit C listing what it did not produce and why. 13. Of course, the documents and items the Court allowed the Clerk to withhold from direct unprotected production and inspection are not privileged except to the extent they constitute trade secrets. The Texas Supreme Court in In re Bass, 113 S. W3d 735 (Tex. 2003) set forth the standard by which information may be considered a trade secret entitled to privilege: Pressley v. Casar Motion to Compel p.4 4504 We have held that a trade secret is "any formula, pattern, device or compilation of information which is used in one's business and presents an opportunity to obtain an advantage over competitors who do not know or use it ... To determine whether a trade secret exists, this Court applies the Restatement of Torts' six- factor test: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of the measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others ... 14. There is no privilege for evidence termed "proprietary." Indeed, everything is proprietary to somebody. The Court in In re Continental General Tire, 979 SW2d 609, 615 (Tex. 1998) held: Trade secrets and confidential information are not necessarily ''privileged' matters within the meaning of Rule 186a. If the information is material and necessary to the litigation and unavailable from any other source, a witness may be required to make disclosure. 15. Some of the withheld information is not trade secrets and should be produced and their inspection does not violate a protectable trade secret. Midstream, id. (the confidentiality provisions of the agreement do not insulate the settlement agreement from discovery if the discovery is otherwise warranted.) 16. To the extent such information and items for inspection may constitute trade secrets, they still contain information relevant to the issues in this case. The proper procedure is for such items to be tendered to the Court in camera for its determination if they are indeed trade secrets and with respect to trade secrets if they contain relevant information. If they contain relevant information, they should still be ordered disclosed subject to a protective order designed to protect their secrecy consistent with their need for use in this proceeding. See In re: Dupont de Pressley v. Casar Motion to Compel p.5 4505 Nemours & Co., 136 S.W.2d 218 (Tex 2004). In re: Continental General Tire, Inc., 979 S.W.2d 609, 613 (Tex 1998). See also In re: Bass, 113 S.W.3d 735, 743 (Tex 2003). See§ 134A.006, Civil Practices and Remedies Code. Jampole v. Touchy, 673 S.W.2d 869 (Tex 1984), Garcia v. Peeples, 734 S.W.2d 343 (%Tex 1987). "Trade Secrets and confidential information are not necessarily "privileged" matters within the meaning of Rule 186a. If the information is material and necessary to the litigation and unavailable from any other source, a witness may be required to make disclosure." In re: Continental General Tire, Inc. at 615. ("Trade secrets and confidential information are not necessarily ''privileged" matters within the meaning of Rule 186a. If the information is material and necessary to the litigation and unavailable from any other source, a witness may be required to make disclosure.") IV. Contestant and Her Expert Needs Withheld Evidence 17. In addition to the documents Travis County seeks to claim as privileged, other documents in Travis County's possession, custody, or control responsive to discovery for which no privilege is asserted are either missing or are not complete. 18. Refusal to let experts examine manuals, eSlate machines and MMB's to determine if they were functioning properly and other material identified in the expert's declaration severely prejudices Pressley's ability to present reliable expert testimony. Especially in light of all the defective Mobile Ballot Boxes (MBB's) which contain actual vote data, identified in the log and other irregularities identified in Pressley's response to the motions for summary judgment and the lack of images of what the voters used to make their decisions on who to vote for these items are vital not only for the expert but also for court to decide if the outcome of the election .. Pressley v. Casar Motion to Compel p.6 450  Also, many questions remain with regard to the preservation and printing of various crucial election records, those involved in the entry of vote data, etc. Also, the question of whether the system used was capable of preserving and printing images of the pages on which the voters chose who to vote for among the various choices is essential to whether the cast vote record satisfies the statutory requirement to maintain an image of the ballot for use in a recount as a check on the CVR produced by the computer. Therefore the Court should order the withheld documents listed on Exhibit A produced to it in camera and upon such inspection by the court order disclosure of all of the items on Exhibit A that are not trade secrets and for those that are but have information material to proving that the election system and procedures were unreliable, illegal and otherwise defective, order disclosure of those documents pursuant to a protective order limiting their disclosure to use in this litigation . Respectfully Submitted, Is/ David Rogers David Rogers LAW OFFICE OF DAVID ROGERS Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836- Telephone 512-201-4082- Facsimile Email: Firm@DARogersLaw.com Mark Cohen SBN: 04508400 805 West 1Oth Street, Suite 100 Austin, Texas 78701 Pressley v. Casar Motion to Compel p.7 4507  (512) 474-4424 Phone (512) 472-5444 Facsimile Mark@cohenlegalservices.com "\\rww.CohenLegalServices.com Attorneys for Contestant Dr. Laura Pressley Pressley v. Casar Motion to Compel p.8 4508  CERTIFICATE OF SERVICE This is to certifY that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on May 20,2015 on counsel of record as follows: Charles 'Chuck' Herring Jr. 09534100 Jess Irwin- 10425700 Lauren Ross - 24092001 Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580 Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive,# 310 Austin, Texas 78731 Phone: (512) 476-6000 Fax: (512) 476-6002 ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR Jessica Belinda Palvino McGINNIS, LOCHRIDGE & KILGORE LLP 600 Congress A venue Suite 2100 Austin, TX 78723 Phone: 512-495-6000 Fax: 512 495-6093 jpalvino@mc ginnislaw .com David A. Escamilla Travis County Attorney Sherine E. Thomas Andrew M. Williams Patrick M. Kelly Pressley v. Casar Motion to Compel p.9 450 Assistant County Attorneys Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767 Phone: (512) 854-9472 Fax: (512) 854-4808 email: Sherine. Thomas(lil,traviscountytx.gov, Pat.Kelly@traviscountytx. gov, andrew. williams@traviscountytx. gov By: Is/ David Rogers Pressley v. Casar Motion to Compel p.JO 4510  5/26/20158:00:00 AM Velva L. Price District Clerk Travis County NO. D-I-GN-15-000374 D-1-GN-15-000374 LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § 20lST JUDICIAL DISTRICT § GREGORIO "GREG" CASAR § Contestee § 20lST JUDICIAL DISTRICT CONTESTANT'S RESPONSE TO CONTESTEE'S MOTION TO STRIKE PLEADINGS AND FOR SANCTIONS COMES NOW LAURA PRESSLEY, Contestant, and files this Response To Contestee's Motion To Strike Pleadings And For Sanctions, showing as follows: INTRODUCTION 1. Contestee's motion to strike and for sanctions must be denied. First, Contestee asks the Court to strike Contestant's pleading based on lack of attachment of the lists referenced in the pleading. Contestant made a good faith effort to amend her contest; the attachments were not, it turns out, accepted by the Court's electronic filing system, leaving the attachments off the filing. Counsel and Contestant were not aware that the electronic filing system had rejected the attachment to the 5th Amended Contest. 2. Second, a simple phone call or email from opposing counsel would have resulted in Contestant's counsel emailing the attachments to them. As Contestant will show below, she has done so. Constestee's counsel currently has in their possession the attachments Contestee asserts were lacking, the basis of his motion to strike and sanctions. Because Contestee has these documents in his possession, his claims that Contestant's assertions are groundless, are themselves groundless. Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.l 1525 3. Third, through discovery, Contestant has learned from Travis County's Audit Log for the 2014 Runoff election that there were nine (9) mobile ballot boxes (MBB) from the Runoff election were that were reported as corrupted. In addition to the fact the Contestee has the documents they claimed they lacked, the evidence that nine MBB' s were corrupted belies Contestee's groundless claim. Finally, the issues raised in Contestee's motion to strike are addressed, and therefore mooted, by Contestant's 6th Amended Petition. Contestee's motion must be denied on the grounds set forth. Error by Court Electronic Filing System in attaching the lists referenced in the pleading 4. Contestee complains that attachments referenced in the amended contest were missing from the filing. Contestant made a good faith effort to cure the defects of her previous contest based on the Court's order on special exception. Contestant attached the exhibits reference in Contestee's Motion to Strike to the filing of her 5th Amended Contest. The Court's electronic filing system did not accept the attachments as part of the system. See Exhibit A, Declaration of David Rogers with Attachment 1, E-FILETEXAS.GOV Email notice of Submission Failure 4962344 included herein by reference as if fully set forth. 5. Neither Contestant nor her counsel were aware of the failure of the system to accept the exhibit attachments until Contestee's counsel filed this motion. Had counsel conferred with Contestant's counsel regarding the missing exhibits, Contestant's counsel would have immediately provided same. Contestant, through counsel, emailed the rejected attachments to counsel for Contestee. See Exhibit B, Declaration of Charlotte Secord with Attachment 2, Email of 5th Amended Contest attachments to Contestee's counsel included herein by reference as if fully set forth. Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.2 1526 6. The Court cannot strike the pleadings of a party that makes a good faith effort to cure defects in their pleading. Humphreys v. Meadows, 938 S.W.2d 750, 753 (Tex.App. - Ft. Worth 1996, writ denied). Instead, Contestee must file new special exceptions, the Court must sustain them, and Contestant must be given another opportunity to amend before the Court may strike her pleadings. Baca v. Sanchez, 172 S.W.3d93, 95-96 (Tex.App. - El Paso 2005, no pet). No Basis of Groundlessness 7. The court in Dike v. Peltier Chevrolet, Inc. 343 S.W. 3d 179 (Tex.App. - Texarkana 2011) held: [T]o award sanctions under Chapter 10, it must be shown that: (1) the pleading or motion was brought for an improper purpose; (2) there were no grounds for the legal arguments advanced; or (3) the factual allegations or denials lacked evidentiary support. Chapter 10 specifies that one of the aims for imposition of sanctions for the filing of frivolous or groundless pleadings is to "deter repetition of the conduct or comparable conduct by others similarly situated."). (Citations omitted) 8. More importantly, the court in Peltier expounded on the standard for the award of attorney's fees for sanctions: In determining whether sanctions are appropriate, the trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the pleading Courts should presume parties and their counsel file all papers in good faith, and the party seeking sanctions must overcome that presumption. The party seeking sanctions has the burden of showing its right to relief. (Citations omitted.) See also Nath v. Tex. Children's Hasp., 446 S.W.3d 355, 361 (Tex. 2014) ("Generally, courts presume pleadings and other papers are filed in good faith The party seeking sanctions bears the burden of overcoming this presumption of good faith."); Zeijinan v. Michels, 2013 Tex. App. LEXIS 10523 (Tex.App. - Austin 2013). Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.3 1527 9. Even in a case such as this, where the sanction is sought pursuant to CPRC 10.01 et. seq., the burden is on the party seeking sanctions to prove that the pleading is groundless, i.e., that the fact alleged could not be proved factually or there is no legal basis. In Peltier, 343 S.W. 3d 179, 184, the court held: Under Section 10.001, the signer of a pleading certifies that each claim and allegation is based on the signatory's best knowledge, information, and belief, formed after reasonable inquiry. Each allegation and factual contention in a pleading must have, or be likely to have, evidentiary support after a reasonable investigation. (Citation omitted) See also Low v. Henry, 221 S. W3d 609,614 (Tex. 2007). 10. In this case, the sole basis for Contestee's motion is that Contestant allegedly failed to attach the documents referred to in the Sth Amended Contest. As shown above, not only was the lack of attachments simply an electronic clerical error, Contestant has provided Contestee's counsel with the documents supporting Contestant's claims in her Sth Amended Contest (with a copy to the Court) rejected by the Court's e-filing system. 11. Counsel for Contestee could have swiftly and easily remedied the confusion by a phone call or email to counsel for Contestant for the attachments referenced in Contestant's Sth Amended Contest. Instead, Contestee's counsel has chosen to exercise the resources of this Court to basically accomplish the same result. Groundlessness Belied by Corrupted Mobile Ballot Boxes 12. On May 11, 201S, counsel for Contestant deposed the Travis County, Texas County Clerk, Dana DeBeauvoir regarding, among other things, the electronic voting system used in the 2014 Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.4 1528 Travis County Runoff election. Among the exhibits about which she was deposed was the Official Audit Log for the December 16, 2014 Joint Special Runoff Election. See attached Exhibit C. 13. Therein, Contestant discovered entries for MBB's identified as corrupted. Below is a chart that references the page numbers on which the corrupted MBB' s are listed: Page Date Time Description 5 12/16/14 12:30:00 pm Invalid/Corrupt MBB 22 12/16/14 8:34:45 pm Invalid/Corrupt MBB 23 12/16/14 8:42:16 Invalid/Corrupt MBB 23 12/16/14 8:42:43 Invalid/Corrupt MBB 26 12/16/14 8:53:36 Invalid/Corrupt MBB 27 12/16/14 8:57:04 Invalid/Corrupt MBB 27 12/16/14 8:57:04 Invalid/Corrupt MBB 29 12/16/14 9:09:34 Invalid/Corrupt MBB 42 12/16/14 10:12:44 Invalid/Corrupt MBB 14. These nine entries on Travis County's 2014 Runoff election audit log clearly indicate that the mobile ballot boxes were either invalid or corrupted. The corrupt MBBs contained Runoff election votes which mayor may not have been properly included in the Runoff election count and recount. Regardless, Contestants allegation and factual contention that corruption of votes in the corrupted Travis County electronic voting system in her contest has, or is likely to have, evidentiary support after a reasonable investigation. Peltier, id.; Nath, id. Because there is no basis for a groundless pleading claim, Contestee's motion to strike and sanctions must be denied. Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.5 1529 Contestee's motion to strike addressed and mooted by Contestant's 6th Amended Petition 15. The offending references to specific voters has been removed by the Contestant's filing of her 6th Amended Contest. Because the challenged portions of Contestant's prior pleadings no longer exist in the live Contest, Contestee's motion to strike is moot. As the court in Houston Chronicle Publ'g Co. v. Thomas, 196 S.W.3d 396, 399 (TexApp. Houston [1 st Dist.] 2006) explained: The mootness doctrine limits courts to deciding cases in which an actual controversy exists." A controversy "must exist between the parties at every stage of the legal proceedings ... (Emphasis added) Citing F.D.I.C v. Nueces County, 886 S.W.2d 766, 767, 38 Tex. Sup. Ct. J. 29 (Tex. 1994) (citing Camarena v. Tex. Employment Comm'n, 754 S.W.2d 149, 151,31 Tex. Sup. Ct. J. 563 (Tex. 1988». 16. Further, there is no pretrial order in this case. As such, Contestant is authorized to amend her petition at any time more than 7 days prior to trial without leave of court as long as the amendment does not operate as a surprise to the opposing party. Texas Rule of Civil Procedure 63; Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex. 1995). Since the trial is not scheduled until July 20, 2015, Contestant may amend her pleading anytime prior to July 13, 2015. Contestee has not asserted surprise from Contestant's amended pleading. Contestant has filed a Sixth Amended Contest based on the partial discovery provided by the Travis County Clerk. Contestee's motion to strike is moot and should, therefore, be denied. Sanctions 17. Based on the foregoing, there is no factual or legal basis for awarding sanctions. Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.6 1530  PRAYER WHEREFORE PREMISES CONSIDERED Contestant prays this honorable Court deny Contestee's Motion to Strike and Sanctions and grant such other and further relief, in law or in equity, which the Court may find Contestant justly entitled. Respectfully submitted, David Rogers LA W OFFICE OF DAVID ROGERS By: /s/ David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836 - Telephone 512-201-4082 - Facsimile Email: Firm@DARogersLaw.com Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney for Contestant Dr. Laura Pressley Attachments: Exhibit A, Declaration of David Rogers with Attachment 1, E-FILETEXAS.GOV Email notice of Submission Failure 4962344 Exhibit B, Declaration of Charlotte Secord with Attachment 2, Email of 5th Amended Contest attachments to Contestee's counsel Exhibit C - Deposition, Travis County, Texas County Clerk, Dana DeBeauvoir Exhibit 12, Official Audit Log for the December 16, 2014 Joint Special Runoff Election. Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.7 1531  CERTIFICATE OF SERVICE This is to certifY that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on May 25,2015 on counsel of record as follows: Charles 'Chuck' Herring Jr. 09534100 cherring@herring-irwin.com Jess Irwin - 10425700 j ess@herring-irwin.com Lauren Ross - 24092001 laurenbross(aJ,herring-irwin.com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580 Kurt Kuhn - 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 Phone: (512) 476-6000 Fax: (512) 476-6002 ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR Jessica Belinda Palvino MCGINNIS, LOCHRIDGE & KILGORE LLP 600 Congress Avenue Suite 2100 Austin, TX 78723 Phone: 512-495-6000 Fax: 512 495-6093 jpalvino@mcginnislaw.com David A. Escamilla Travis County Attorney Sherine E. Thomas Andrew M. Williams Patrick M. Kelly Assistant County Attorneys Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767 Pressley Response To Casar's Motion To Strike Pleadings And For Sanctions p.8 1532  4/20/2015 11 :25:47 PM Velva L. Price District Clerk Travis County D-1-GN-15-000374 No. D-I-GN-15-000374 LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § § GREGORIO "GREG" CASAR § Contestee § OF TRAVIS COUNTY, TEXAS § § 201 st JUDICIAL DISTRICT CONTESTANTS' FIFTH AMENDED ORIGINAL CONTEST OF ELECTION, MOTION TO MODIFY DISCOVERY DEADLINES, AND REQUESTS FOR DISCLOSURE FOR THE OFFICE OF THE AUSTIN CITY COUNCIL, DISTRICT 4 TO THE HONORABLE JUDGE OF SAID COURT NOW COMES, Laura Pressley, Contestant, and files this Fifth Amended Original Petition for Election Contest for the Office the Austin City Council, District 4 (Petition) against Gregorio "Greg" Casar, Contestee.] This Amended Pleading is in response to the court's order sustaining special exceptions to which the Contestant disagrees. It is filed assuming the Court's Order providing the April 20, 2015 Deadline to replead assumed Contestant would have reviewed documents ordered to be produced by the Travis County Clerk's Office. This has not happened yet so some of the information the Court assumed in its order Contestant would have available in time to completely meet the order on special exception is still not available at this time. Contestant anticipates filing another amended pleading with more specific allegations as soon as it has had sufficient time to do so. The election was held on December 16, 2014 and canvassed 1 This Fifth Amended Petition is filed in Response to Contestee Gregorio "Greg" Casar's Answer and Special Exceptions to Contestant's Original Contest of Election, and the Court's order of April 13,2015 regarding those Special Exceptions. Pressley v. Casar Fifth Amended OP Contest p.l 1538  on December 30, 2014. In support of this election contest, Dr. Pressley will respectfully show as follows: I. DISCOVERY 1. The contestant intends that discovery be conducted under level three, a custom discovery plan for election contest devised with the approval of the court. II. REQUEST FOR DISCLOSURE 2. Pursuant to Texas Rule of Civil Procedure 194, and the motion set forth below, the plaintiff requests that the defendants, within thirty days of the service of the Original Petition, disclose the information and material described in Rule 194.2. III. SUMMARY 3. This contest is based on the facts that illegal votes were counted, election officers prevented eligible voters from voting, election officers failed to count legal votes, and election officers made mistakes that resulted in an election outcome which is not the true outcome. Thus, deprivation of voting rights of voters in several high population polling locations which were improperly closed, irregularity in votes counted or not counted, and a failure to comply with the Texas Election Code requirement for storing, retrieval and printing of "images of ballots cast" in electronic voting machines occurred and negatively affected the outcome for Pressley. Particularly, the improper closure, consolidation and moving of the voting locations alone appears to have reduced the vote considerably more than the margin reported in the canvass of the election. 2 4. Additionally, Travis County uses electronic voting machines from Hart Intercivic to conduct 2This is sufficient to "materially affect[] the election results." Gonzalez v. Villarreal, 251 S.W.3d 763,773,777-78 (Tex. App.-Corpus Christi 2008, pet. dism'd w.o.j.) (quoting Tiller v. Martinez, 974 S.W.2d 769,772 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.) (emphasis added); accord Reese v. Duncan, 80 S.W.3d 650,655-56 (Tex. App.-Dallas 2002, pet. denied). Pressley v. Casar Fifth Amended OP Contest p.2 1539 elections within the county? Pressley requests that the court compel Travis County election officers to print the "images of ballots cast" as required under the Texas Election Code. 4 (TEX. ELEC. CODE §213.016). Without these statutorily-required "images of ballots cast" it is impossible for the Court to determine the actual election outcome, as the only actual ballots - the mail-in ballots - are exactly and perfectly tied between the two candidates. The Travis County Clerk has asserted that the system Travis County uses cannot print "images of ballots cast." Images of ballots cast" is not the same as "cast vote records." The Court, consequently, must reject any "cast vote records" produced and tallied by such machines. The result of these multiple irregularities is that the result cannot be known, and the Court must order a new election. Dr. Pressley requests that such an election be timely set, and conducted in compliance with the Texas Election Code and the Secretary of State's regulations governing elections. 5. "The purpose of the election code is to ensure that the true will of the voters is 'fairly expressed' and that the evidence of that expression is 'properly preserved.' Prado [v. Johnson, 625 S.W.2d 368 3 Voters in different parts of the state utilize a number of different voting systems, all of which must first be certified by the Secretary of State. Tex. Elec. Code § 122.001, .031. ... Once a system is certified, local political subdivisions may adopt it for use in elections. Id. § 123.001. ... The eSlate, a paperless DRE manufactured by Hart Intercivic, is one of a handful ofDREs the Secretary has certified. See Voting Systems, Texas Secretary of State, http://www.sos.state.tx.us/elections/laws/votingsystems.shtml. Voters arriving at the polls in counties using the eSlate are given a unique access code. The voter enters the code into the eSlate, which then displays the ballot. Voters tum a dial to highlight their ballot choice and then press "enter" to make a selection. After a voter completes his selections, the eSlate displays a ballot summary page. If the voter's choices are correctly displayed, the voter presses the "cast ballot" button, and the vote is purportedly recorded. See Voter Instructions, Travis County, http://www.co.travis.tx.us/county_clerk!election!eSlate/pdfs/English_Flyer_ 050923. pdf. Travis County purchased the eSlate system in 2001 and has used it since 2003. Andrade v. NAACP of Austin, 345 S.W.3d 1,4,5-6 (Tex. 2011) (footnotes omitted.) 4 See attached Appendix 10, September 30, 2014 letter from Texas Secretary of State. In this letter, Keith Ingram, Director of Elections for the Texas Secretary of State's office, specifically states "in the [Hart Voting System], ballot images remain on the voting machines themselves for recounts, contests, and other post-election reviews until archived by the county for the following election." p.2, second to last paragraph, last sentence. Pressley v. Casar Fifth Amended OP Contest p.3 1540 (Tex. Civ. App.--San Antonio 1981, writ dism'd w.o.j.»], 625 S.W.2d at 369-70." Gonzalez v. Villarreal, 251 S.W.3d 763, 778 (Tex. App.-Corpus Christi 2013). The failures and mistakes illustrated in this Contest show that the will of voters was thwarted, the evidence of that expression was not properly preserved and thus, the true outcome cannot be determined. 5 6. While some actual ballots were preserved - the mail-in ballots, in which the candidates are perfectly tied - the vast majority of ballots and the evidence of the voters' intent were not preserved. According to the Travis County Clerk, there are no "images of ballots cast" that the court can review. Therefore, if "images of ballots cast" cannot be produced, we request the court to order a new election. IV. PARTIES 7. Contestant Laura Pressley is a resident of Austin City Council District 4, Travis County, Texas. She was a candidate in the Austin City Council District 4 Run Off Election on December 16, 2014. 8. Contestee Gregorio "Greg" Casar is a resident of Austin City Council District 4, Travis County, Texas. He was a candidate in the Austin City Council District 4 Run Off Election on December 16,2014. Casar has been served and has answered in this cause. 9. The election results were canvassed on December 30, 2014 and Mr. Casar was declared the victor. 10. A "manual recount" of all early voting, election day, provisional, and mailed-in ballots was attempted on January 6, 2015. 6 The mail-in ballots were exactly tied between the candidates, at 240 5 The requirement to preserve "images of ballots cast" in the statute is fundamental to preserving the evidence of the will of the voters. By failing to preserve that evidence, the County has destroyed evidence of the expression of the will of the voters and forced the court to call a new election. 6 Though the County Clerk termed the action a "manual recount," because the event as it occurred Pressley v. Casar Fifth Amended OP Contest p.4 1541 each, for a total of 480 votes. 7 The attempted recount was a nullity and a real recount was made impossible in that the attempted recount violated state law and was incorrectly performed using of the "cast vote records" in lieu of "images of ballots cast" combined with the actual mail in ballots. Based on the counting of "cast vote records" and mail in ballots, as could be predicted, the invalid recount did not change the reported results of the election and the original declaration of Mr. Casar as the victor for the run off election did not change. Casar was sworn into office on January 6, 2014. He has been notified of the filing of this action by a delivery of a copy of this Petition in accordance with TEX. ELEC. CODE § 21.003(b). v. JURISDICTION AND VENUE 11. Jurisdiction and venue in this case are proper and mandatory in Travis County because the office being sought is for a district entirely within the boundaries of Travis County under the Texas Elections Code, Section 232.006. VI. FACTS Travis County Election Officials Prevented Eligible Voters from Voting 12. City of Austin District 4, comprised of 18 voting precincts, is located entirely III Travis County. Early Voting and Election Day was December 1-12, and 16, 2014, respectively. Voters seeking to vote at high-volume locations were improperly denied the right to cast their vote. Disenfranchisement of District 4 voters occurred as a result of the closing of the highest volume District 4 voting locations in the Run Off during Early Voting and Election Day, December 16, did not satisfy statutory criteria, Pressley does not concede that what occurred was actually a statutory manual recount as defined by the Texas Election Code. 7 These were the only actual ballots counted during the "manual recount." The mail-in ballots were more than 10% of the total ballots cast in the election. The allegation of the county is that, despite the perfect tie in mail-in ballots, Casar beat Pressley by a 2-to-1 margin in the remaining ballots. This is a variation in election results that is highly improbable and unrecorded to Contestant's knowledge. Pressley v. Casar Fifth Amended OP Contest p.5 1542 2014. 13. The Highland Mall voting location at 6601 Airport Blvd was open during the General Election for Early Voting and Election Day on October 20-31, and November 4, 2014, respectively and saw some of the highest volume of voters in District 4. This location was the designated voting location for Precinct 142 and was an important and convenient voting location for Precinct 156 and others nearby. It was closed for the December Run Off election for Early Voting and Election Day. It was moved to the far less convenient Travis County Tax Office at 5501 Airport Blvd (See Appendix 1). The Pressley campaign received multiple reports of voters being upset and confused because the voting location had been moved. 14. Specifically, reports were received by Contestant on Election Day, December 16th , from voters while Contestant was phone banking. District 4 voter, Thomas Crawford showed up at Cooke Elementary to vote, and reported no signs were posted to indicate where the polling location had been moved. Similar reports were received by Brad Parsons, a campaign volunteer, who was phone banking on Election Day. Campaign supporter, Matthew Palmer reported that Highland Mall was closed and it was a problem for voters. Based on information and belief, Contestant asserts that said confusion was a result of failure to post, or premature removal of, a notice at Cooke Elementary, Precinct 222, of the relocation of the polling place. 15. Upon reviewing voter rolls for Pct 156 and 142, published by Travis County, Appendix 2 shows names, addresses and precincts of 365 voters of Pcts 156 and 142 that we allege were disenfranchised. These 365 voters were identified based on their voting histories which include but are not limited to voting in General Elections, City of Austin Council Elections, and Primary Elections. The extensive voting histories of these 365 voters show they are the most consistent voters in Precincts 142 and 156 and surprisingly did not vote in the City Council Run off election Pressley v. Casar Fifth Amended OP Contest p.6 1543 in 2014. In addition, the Pressley campaign verified additional voters, multiple times, as very strong Pressley supporters (by block walking/phone banking/yard signs posted), who were waiting to vote on Election Day. These voters total 73. Therefore, Contestant alleges a total of 438 voters in Precincts 142 and 156 were disenfranchised. 16. To enhance the accuracy of this list, additional information (detailed voter information of precincts, ballot styles, voting histories, and voting locations for those voting in the General and Run off elections), has been requested through discovery from Travis County. Upon receipt and review of discovery responses from Travis County, Contestant may identify additional voters and improve the accuracy of this list. Also, for trial, Contestant is in the process of collecting affidavits regarding disenfranchisement specifics from these voters. 17. The second highest voting precinct and polling location in District 4 for the November General Election was Precinct 222 at Cooke Elementary located at 1511 Cripple Creek. That Precinct is comprised of more than 25% senior voters who are 60 years and older. It was closed during Election Day for the December Run Off (See Appendix 1). It was combined with the fourth lowest voter turnout location in District 4, Precinct 268, Grant AME Worship Center at 1701 Kramer Lane. 18. The Pressley campaign received reports from Rob Hale, a resident and voter in Pct 222. As usual, he and other Pct 222 voters showed up to Cooke Elementary for the December Run Off on Election Day and were confused as to why Cooke Elementary was closed for voting for Pct 222. He helped senior voters look up an alternative location in which to vote on Kramer Lane. When he arrived at the Kramer location, he waited for the senior voters and they did not arrive. In addition, he had a relative that showed up at Cooke Elementary to vote, and the relative reported no signs were posted to indicate where the polling location had been moved. Pressley v. Casar Fifth Amended OP Contest p.7 1544 19. Upon reviewing Pct 222 voter rolls published by Travis County, Appendix 3 shows names, addresses and precincts of 248 voters that we allege were disenfranchised. These 248 voters have voting histories which include but are not limited to voting in General Elections, City of Austin Council Elections, and Primary Elections. The extensive voting histories of these 248 voters show they are the most consistent voters in Precinct 222 and they surprisingly did not vote in the City Council Run off election in 2014. In addition, the Pressley campaign verified additional voters, multiple times, as very strong Pressley supporters (by block walking/phone banking/yard signs posted), which were waiting to vote on Election Day. These voters total 71. Therefore, Contestant alleges a total of319 voters in Precinct 222 alone were disenfranchised. 20. To enhance the accuracy of this list, additional information (such as detailed voter information such as precincts, ballot styles, voting histories, and voting locations for those voting in the General and Run off elections), has been requested through Discovery from Travis County. Upon receipt and review of Discovery responses from Travis County, Contestant may identify additional voters and improve the accuracy of this list. Also, for trial, Contestant is in the process of collecting affidavits regarding disenfranchisement specifics from these voters. 21. Another voting location open during the General Election but closed for the District 4 Run off was Precinct 133, which was open for the General Election at Blanton Elementary located at 5408 Westminster. It was combined with the non-District 4 Precinct 130, at Memorial UMC. 22. The Pressley campaign received reports from Pct 133, Election Judge, Arthur Turner, a resident and voter in Pct 133. During Election Day, voters from Pct 133, showed up at Blanton Elementary to vote in the Run Off and were confused and upset as to why Blanton Elementary was closed for voting for Pct 133. Mr. Turner had multiple calls from upset voters who did not know where to vote. Pressley v. Casar Fifth Amended OP Contest p.8 1545 23. Upon reviewing Pct 133 voter rolls published by Travis County, Appendix 4 shows names, addresses and precincts of 116 voters Contestant alleges were disenfranchised. These 116 voters have voting histories which include but are not limited to voting in General Elections, City of Austin Council Elections, and Primary Elections. The extensive voting histories of these 116 voters show they are the most consistent voters in Precinct 133 and they surprisingly did not vote in the City Council Run off election in 2014. 24. To enhance the accuracy of this list, additional information (such as detailed voter information such as precincts, ballot styles, voting histories, and voting locations for those voting in the General and Run off elections), has been requested through discovery from Travis County. Upon receipt and review of discovery responses from Travis County, Contestant may identify additional voters and improve the accuracy of this list. Also, for trial, Contestant is in the process of collecting affidavits regarding disenfranchisement specifics from these voters. 25. Three additional polling locations were closed for the Run off election for District 4 (Pcts 209, 258, and 260). Upon reviewing the voter rolls for these precincts published by Travis County, Appendix 5 shows names, addresses and precincts of 235 voters that we allege were disenfranchised. These 235 voters have voting histories which include but are not limited to voting in General Elections, City of Austin Council Elections, and Primary Elections. The extensive voting histories of these 235 voters show they are the most consistent voters in Precincts 209,258, and 260 and they surprisingly did not vote in the City Council Run off election in 2014. 26. The total number of closed/moved/combined precincts in District 4 for the Run off comes to a total of 7 Precincts out of 17 voting precincts in District 4. Therefore, 41 % of District 4's polling locations were closed, combined or moved for the December Austin City Council Run off. Appendix 6. This caused a much lower than expected turnout for Election Day for District 4. Pressley v. Casar Fifth Amended OP Contest p.9 1546 27. To summarize, typically Election Day and Early Voting tum out is very similar. Early Voting for the District 4 Run Off race saw approximately 2,646 voters and on Election Day only 1,771 turned out. Due closing/ moving/ combining of 41 % of District 4 Polling locations, voters were confused and disenfranchised and Election Day voters were about 875 short. 28. The County's actions of closing multiple, key, high volume polling locations had a disproportionate effect on minorities, working people, and elderly voters of District 4-one of the Hispanic-opportunity districts in the City of Austin. Four of Pressley's strongest voting locations/boxes that showed over 50% for Pressley (222, 156, 133, 258), as evidenced by the only remaining ballots, Mail in Ballot results, were moved or closed for the Run Off election (See Appendix 6). 29. As a result of these aggressive and improper closures, voters registered at those locations were improperly denied the right to cast their vote. The closure of these pro-Pressley precincts was unfair and undermined the true outcome of the election. A conservative count of disenfranchised voters resulting from the improper closure/moving/combining of precincts 133, 142, 156, 209, 222, 258, and 260 is 1,108. This value is consistent with the low voter turnout on Election Day as compared to Early Voting. Upon evaluation of discovery responses from Travis County, a more accurate number may be provided. Also, for trial, Contestant is in the process of obtaining testimony regarding disenfranchisement specifics from these voters. Travis County Election Officials Allowed Ineligible Voters to Cast Votes (Illegal Votes) 30. A thorough review the 4,414 Early Voting and Election Day voter names and addresses with returned mail, and the National Change of Address database (NCOA), and voter registration Pressley v. Casar Fifth Amended OP Contest p.lO 1547 records available online, 64 of the voters had moved, no longer resided in District 4, or had some other residency issues, and may not have been eligible to vote in the District 4 Run Off Election. Therefore, at least 64 ineligible voters cast votes in this election due to residency issues. A more detailed review of the voter registrar information provided by Travis County is needed with regard to Provisional Ballots, statements of residence, etc. Upon evaluation of Discovery responses from Travis County, a more accurate number may be provided. A list of the 64 voter's Voter ID's and precincts are found in Appendix 7. 31. \Vith regard to additional categories for illegal votes, it is unlikely that voters that are not interested in voting in a General Election will be interested in voting in a Run Off election. After reviewing Travis County voter rolls (https:lltax-office.traviscountytx.gov/voter-data), for the General Election and the Run Off, 156 voters voted in the Run Off that did not vote in the General Election. Many are Ballot by Mails and a large number voted at specific locations. These are potentially illegal votes and we ask the court to allow Contestant time to review and evaluate various Discovery responses from Travis County voting records including, but not limited to, Ballot by Mail, voter registration cards, polling location sign in sheets, and residency records, etc. to validate the votes were cast legally. A List of these voters are found in Appendix 8. More Ballots Than Voters During Early Voting (megaI Votes) 32. On Tuesday, December 30, 2014, the Mayor of Austin and the Austin City Council conducted an initial official canvass and certification for the Election Day results for all races on the ballot, including City of Austin District 4. The canvassed and certified totals for District 4 were Laura Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast. 33. The canvassed results were inconsistent with the Early Voting voter reports. Travis County reported that 2,651 total voters voted in Early Voting in District 4. Reviewing the voter ID's, 437 Pressley v. Casar Fifth Amended OP Contest p.ll 1548 entries existed for those submitting Ballot by Mail (BBM). There were at least 28 duplicate entries for BBM. At least 28 mail-in votes appear to have been counted twice or three times. See Appendix 6, Duplicate Ballot by Mail Entries. 34. Once duplicate BBM's were removed, 2,622 voter names remained that voted in Early Voting according to the Early Voting lists from Travis County that were distributed prior to Election Day, December 16, 2014. Based on Travis County's Canvassed and Recount results for those that voted for Greg Casar, or Laura Pressley or Under Voted, the total number of ballots cast for Early Voting is 2,701. Therefore, there are 80 more ballots than voters for Early Voting. These 80 extra ballots are distributed among 15 of the 18 precincts of the District 4 Race. 8 (One precinct, with one eligible voter, showed no votes.) See Appendix 7, Early Voting Discrepancies. Statistical Improbabilities 35. An analysis of the voting results show a pattern of mathematical anomalies which is highly unlikely to occur naturally. (See Appendix 8, pages 1-3.) For the nine (9) precincts in District 4 with more than 200 voters,9 the highest volume of voters, the ratio of votes that the Contestant received compared to Contestee is the same ratio in the November General Election (with a total of 8 candidates) as it was in the December Run Off Election (with 2 candidates), 35.1 % vs 35.0% respectively. In addition, the average of the percentages of the unweighted precincts that the Contestant received compared to Contestee, in the November General Election and the December Run Off, are also equal at 35.1 % and 35.1 %, respectively. No other Council race in the history of electronic voting in the City (2003 - current) has shown such a tight non-variation between a 8 In the original petition, this number was identified as 79. One precinct, 211, had a single vote undervote. See Appendix 7, Early Voting Discrepancies." Additionally, there are an unknown number of ballot by mail overvotes, invalid voter registrations, ineligible voters and election day overvotes. 9 These precincts account for more than 80% of the vote in the District. Pressley v. Casar Fifth Amended OP Contest p.12 1549 general election and a run off. Since 2003, of the total eleven Council races that went into a run oft: seven races have greater than lOx variation and 3 show greater than 100x variation. See attached Appendix 8, Comparison of Election Returns. 36. The fact that so many precincts showed exactly the same and unchanged results for the General Election and the Run Off is indicative of mistakes made by Travis County election officers. These mistakes are likely related to and are due to, but not limited to, the handling of voter hardware, software, etc. 37. From Travis County Voter Rolls, though over 4,000 voters were different between the General and Run Off elections, the unique and unlikely occurrence that the results remain unchanged and which has not occurred in the last 11 years in Travis County for any other Run Otf candidate or election is highly improbable. The occurrence is surprising, is strictly isolated to District 4, and is indicative of human error. Because so many high volume District 4 precincts showed exactly the same percentage results for Pressley and Casar, it is possible that some memory cards or counting software used in the General Election were mistakenly reused in error for the Run Off. 38. Contestee Casar alleges the factual and statistically improbable election results for the General Election and the Run Off "are unsurprising." This is indicative of emotional wishful thinking rather than a clear-eyed analytical assessment of evidence and data. Additionally, Casar offers vague and irrelevant references and personal attacks from a politically biased news source, the far-left Austin Chronicle. The Chronicle endorsed and directly campaigned for Contestee Casar. Additionally, the Chronicle has little to no scientific expertise on staff that is qualified to offer expert testimony on complex topics of mathematics, chemistry, physics and engineering, which they attempt to report and critique. 39. Conversely, Contestee Dr. Laura Pressley holds a Ph.D. in Physical Chemistry from the Pressley v. Casar Fifth Amended OP Contest p.13 1550 University of Texas at Austin and holds a minor in mathematics and has worked in the semiconductor and technology industry as a process engineer and senior manager in Austin for over 26 years. She has led defect and yield enhancement engineering teams in Austin, Asia, and Europe and is an expert in mathematical and statistical data analysis. She has successfully led projects that have reduced corporate waste on the order of multimillion dollars, quarter after quarter. See Politi fact article that that discusses Dr. Pressley's chemistry and engineering related statements made during the campaign: http://tinyurl.comllmey73z. Her community involvement has included being the Chair Elect of the SafePlace, on the Executive Committee of the Austin Neighborhoods Council, President of her neighborhood association and a team leader of the Restore Rundberg Revitalization Team. Her main campaign messages were related to reducing waste and debt at City Hall and implementing a City of Austin Homestead Exemption. Attached is a 2014 campaign mailer that compares Dr. Pressley's experience and City Council policy goals with Contestant Casar (Appendix 9.) Procedures Were Violated and Illegal Votes Appear to Have Been Counted 40. Several election safeguards and procedures defined by the Legislature and the Secretary of State that are intended to prevent human errors were mistakenly not followed by Travis County. The mistakes and failure to adhere to the Secretary of State's procedures led to and caused illegal votes to be counted. 41. With regard to the counting of illegal votes, during Early and Election Day Voting, many election irregularities occurred and mistakes were made by Travis County election officers. According to Travis County Election Division director Michael Winn, no Zero Tapes to were printed for machines to verify that directly prior to the first votes being cast, no votes were pre-registered on 10 A "zero tape" is run on the Judge's Booth Controller ("JBC") to ensure no votes reside in the system. When voters arrive they are given a JBC-generated PIN number that they enter on the eSlate. They then vote and the votes are stored on the eSlate, Mobile Ballot Boxes (MBB), and JBC. Pressley v. Casar Fifth Amended OP Contest p.14 1551 the machines. ll This failure is in violation of Texas Secretary of State requirements. The Travis County officers violations affected the outcome of the election because votes may have remained on the voting equipment from prior activities. See Texas Secretary of State Advisory 2012-03, 6(g)(vi), 6(k)(iii) http://www.sos.state.tx.us/elections/laws/advisory20 12-03.shtml (last visited 1-29- 2014). 42. Given so many high volume District 4 precincts showed exactly the same percentage results for Pressley and Casar, it is possible that some memory cards or counting software used in the General Election were mistakenly reused in error for the Run Off. (See Appendix 8.) 43. In addition, with regard to illegal votes being counted, on Election Day, no results tapes were printed at the countywide locations when closing the polls. The SOS procedures require the printing of closing results tapes, also. This failure is in violation of Texas Secretary of State requirements. The Travis County officers violations affected the outcome of the election because votes may have remained on the voting equipment from prior activities. See Texas Secretary of State Advisory 2012-03, 6(g)(vi), 6(k)(iii) http://www.sos.state.tx.us/elections/laws/advisory2012- 03.shtml (last visited 1-29-2014). On Election Day, Pressley campaign official poll watchers were denied access to results tapes for signing purposes at two polling locations, Gus Garcia and Randall's at Research Blvd. Official poll watchers that were denied access are the following: a) Rae Nadler-Olenick was denied access to Results/Tally Tapes on December 16, 2014 at polling location Randalls at Braker and Research. Results Tapes were not printed as required by Secretary of State procedures This affected the 11 Travis County received a waiver of the state requirement for such tapes for the general election only in a letter dated September 30,2014, based on the burden of the extremely long statewide ballot. See attached Appendix 10, September 30, 2014 letter from Texas Secretary of State. The run-off election ballot includes only City Council and Mayoral candidates. The run-off was restricted to two candidates in the races requiring a run-off, unlike the first round, in which as many as twelve candidates participated in some races. Pressley v. Casar Fifth Amended OP Contest p.15 1552  outcome of the Run off election in that errors in counting, ballots cast, and voters signing in, and maintaining security protocols may have occurred. b) Paul Williams was denied access to Results/Tally Tapes on December 16,2014 when the polls closed at Gus Garcia polling location. Results Tapes were not printed as required by Secretary of State procedures 9J.sbl111]). This affected the outcome of the Run off election in that errors in counting, ballots cast, and voters signing in, and maintaining security protocols may have occurred. c) Sergio and Claire Martinez were denied access to Dobie Middle School, SubStation on December 16, 2014 and were not able to monitor for election materials coming from Gus Garcia. This affected the outcome of the Run off election in that errors in counting, maintaining security protocols may have occurred. 44. This violates Secretary of State regulations requiring that poll watchers be allowed to sign such tapes. "The presiding election judge, an election clerk, and not more than two watchers, if one or more watchers are present, shall sign the results tape(s)." The Travis County officers violations affected the outcome of the election because votes may have remained on the voting equipment from prior activities or excess votes may have been added before or after the close of the polls and the lack of "images of ballots cast" makes the results impossible to verify. Texas Secretary of State Advisory 2012-03, 6(k)(i) http://www.sos.state.tx.us/elections/laws/advisory2012- 03.shtml (last visited 1-29-2014). 45. On Election Day, Pressley campmgn official poll watchers not allowed access at the polling substation at Dobie Middle School, where the most important ballots (for the Graham, Gus Garcia, and Virginia Brown precincts) were placed in transit to central counting. Those boxes were the largest and strongest Pressley boxes, as evidenced by the ballot by mail recount results. (See Appendix 3.) This failure is in violation of Texas Secretary of State requirements. The Travis County officers' violations affected the outcome of the election because votes may have remained on the voting equipment from prior activities. See Texas Secretary of State Advisory 2012-03, 6(g)(vi), 6(k)(iii) http://www.sos.state.tx.us/elections/laws/advisory2012-03.shtml (last visited 1-29- 2014). Pressley v. Casar Fifth Amended OP Contest p.16 1553 46. On Election Day, poll watchers were improperly denied access to Central Counting activities with Mobile Ballot Boxes ("MBB"), Tally activities, and the like,12 This failure is in violation of Texas Secretary of State requirements. The Travis County officers violations affected the outcome of the election because votes may have remained on the voting equipment from prior activities or been added improperly later. See Texas Secretary of State Advisory 2012-03, 6(g)(vi), 6(k)(iii) http://w\\<.W.sos.state.tx.us/elections/laws/advisory2012-03.shtml (last visited 1-29-2014). 12 Hart's eSlate System Hart's electronic (DRE) voting system is known as eSlate. The eSlate system is comprised of several distinct components. The Ballot Origination Software System ("BOSS") is used by election officials to define and create individualized electronic ballots. Data is entered once into BOSS and then flows through all components of the eSlate system. The Mobile Ballot Box ("MBB") is a reusable, portable flash memory card. It is used to store and transfer election information. When inserted into the Judge's Booth Controller, the MBB supplies election information and ballot styles, it stores an electronic representation of how votes were cast. Once voting has concluded the MBB is removed and its contents are tallied by the Tally software. The Judge's Booth Controller ("JBC") is the "brain" that manages the system, enabling poll workers to know which voting booths are in use at any time. The JBC issues access codes for the voters' use. It can control up to 12 daisy-chained eSlate units. eSlate refers to the system generally and to the device that voters use to cast ballots, unless using paper ballots, in which case Ballot Now is used. The eSlate may be equipped with a disabled access unit ("DAU") for use by disabled voters. The eSlate units are physically connected to the JBC, which stores cast-vote records. Tally is a software application that reads, stores, and tabulates the cast-vote records from the MBB (the portable flash card that transferred the cast-vote records from the JBC). Tally tabulates all early voting, absentee, and election day results, and produces various reports. Rally is a software application that is capable of reading, storing, and transferring cast-vote data from polling places or collection centers with respect to early returns. The System for Election Records and Verification Operations ("SERVO") software is an election records archiving and asset management system. SERVO is designed to recover data from equipment in the case of a lost or damaged MBB. SERVO also is designed for various recount purposes. Ballot Now is a digital-scan paper ballot system that manages the printing, scanning, and resolution of mailed-in paper ballots. It also records the electronic cast vote records to an MBB to be read and tabulated with Tally. Pressley v. Casar Fifth Amended OP Contest p.l7 1554  The Recount Illegal Votes Counted 47. Because of the previously noted, highly improbable statistical anomalies l3 , the duplicate Ballot by Mail entries, and the fact that there are more ballots than number of voters for Early Voting (overvotes), Contestant requested a manual recount of the Di strict 4 Election with the goal of reconciling the discrepancies. 48. Contestant claims the recount evidence and findings are critically material to this case and the allegations are legally relevant to this election contest. 49. The recount failed to only count legal votes because "images of ballots cast" were not provided and counted. Printing the "cast vote record" or "CVR" data files was in essence reprinting the previous electronically counted results obtained on Election night. A CVR prints data from a data file to a template; it does not count the "images of ballots cast" - it merely reprints the tally on separate sheets of paper. It was not recounting the source data of the "images of ballots cast," and as such it is not a meaningful check on the original count. 14 Using the CVR 13 See Appendix 8. 14 The Secretary of State is somewhat unclear on this issue. While "images of ballots cast" could be considered as a subset of the category "cast vote records," the CVRs in this case are not, in fact, images. In logical terms, the expression would be that just because all A are B does not mean all B are A. (All dogs are animals, but not all animals are dogs.) In its 2014 Electronic Voting System Procedures bulletin, posted online at . the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8 - Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEC § 214.071): 1. The candidate requesting a recount may request that the recount be done electronically or manually. 2. For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 3. For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue. Pressley v. Casar Fifth Amended OP Contest p.18 1555 instead of ballot image also appears to violate Texas Election Code 214.049 (e): "If electronic voting system ballots are to be recounted manually, the original ballot, rather than the duplicate of the original ballot, shall be counted." Ballots are defined in Texas Election Code Chapter 52, Subchapter c. 1S 50. On Sunday January 4,2015, prior to the Recount, Pursuant to TEX. ELEC. CODE § 213.016, "PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES," Dr. Pressley communicated over the phone with the the Travis County Clerk. Pressley informed the Clerk that she desired to be present during the printing of images of ballots cast. "Each candidate is entitled to be present and to have representatives present in the a. The Recount Coordinator shall notifY the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. b. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. c. If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. d. A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records. 15 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name." (e) A square shall be printed to the left of each line provided for write-in voting under Section 52J)66( c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.) Pressley v. Casar Fifth Amended OP Contest p.19 1556 same number as prescribed by Section 213.013(b) for a recount during the printing of the images." The next day, January 5,2015, Pressley sent an email to the Travis County Clerk and copied to the Texas Secretary of State's Office, to the same effect. 51. In addition, on January 5, 2015, Dr. Pressley communicated over the phone with the Director of Travis County Elections Division. Pressley informed the Director that she desired to be present during the printing of images of ballots cast. An email was sent to The Travi s County Clerk and copied to the Texas Secretary of State's Office, to the same effect. 52. On 6,2015, a "manual recount," which did not use "images of ballots cast" for the "direct recording electronic voting machines," was conducted and additional irregularities ensued with regard to and during the recount. No "Images of Ballots Cast" for Recount-Illegal Votes Counted 53. On Tuesday, January 6, 2015, at 11:00 a.m. (See Appendix 12) when the recount was to begin, the Travis County Clerk and the Recount Committee relayed to Contestant and her official recount watcher, Karen Renick, that images of ballots cast were not available, would not be printed, and would not be used for the recount. 16 Dr. Pressley expressly stated, in her "Petition Requesting a Recount," and "Amended Petition Requesting a Recount" that "[w]e are requesting a manual recount of the results using the actual, stored, ballot images." (See Appendix 11.) Pressley also expressly requested "a manual (by-hand) count." "[T]he election code expressly provides for the 'printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount.' See id. § 213.016." Andrade v. NAACP of Austin, 287 S.W.3d 240,258 (Tex. App. Austin 2009), rev'd on other grounds by Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex. 2011). Failure to print images of ballots violates this provision of the 16 See attached Appendix 13, Affidavit of Karen Renick, with Exhibits 1 & 2. Pressley v. Casar Fifth Amended OP Contest p.20 1557 election code. Printing errors 54. Prior to the start of the Recount, Travis County selected the data files to print and pre- printed an aggregated data file of Cast Vote Records ("CVRs"). The pre-printed CVRs contained a fractional subset of the data that a District 4 ballot contains. Upon starting the recount on January 6, 2014 around 1l:00am, Contestant relayed to the Travis County Clerk and the Recount Committee, that not providing printed images of ballots cast was a violation of TEX. ELEC. CODE § 213.016. 55. Cast Vote Records are not "images of ballots cast." Ballots are defined in Texas Election Code Chapter 52, Subchapter C. 17 56. At the same meeting, Dr. Pressley stated that the pre-printing of recount records and starting the recount process was also a violation of 213.016 and 213.009(c), respectively. A member of the recount committee responded to one of the recount watchers: "They started all this on Sunday [January 4,2015]." 57. Pressley warned the County Clerk that the irregularities, of not printing the images of 17 For the purposes of this suit, the most salient portions of that subchapter are Sec. 52.003 and Sec. 52.070. Sec. 52.003. PLACING CANDIDATE'S NAME ON BALLOT. (a) Except as otherwise provided by law, the authority responsible for having the official ballot prepared shall have placed on the ballot the name of each candidate: ... Sec. 52.070. VOTING SQUARE AND INSTRUCTION FOR CANDIDATES. (a) A square for voting shall be printed to the left of each candidate's name on a ballot. (b) Immediately below "OFFICIAL BALLOT," the following instruction shall be printed: "Vote for the candidate of your choice in each race by placing an 'X' in the square beside the candidate's name." (e) A square shall be printed to the left of each line provided for write-in voting under Section 52J)66( c), but failure to place a mark in the square does not affect the counting of a write-in vote. (emphasis added.) Pressley v. Casar Fifth Amended OP Contest p.2l 1558 ballots cast, were in violation of the approved amended Petition for Recount and the Texas Election Code and was grounds for an Incident Report. Printing the CVR data files was in essence reprinting the previous electronically counted results obtained on Election night. A CVR is a printing of a data file to a template - it does not "count" the images of ballots - it merely reprints the tally on separate sheets of paper. It was not recounting the source data of the "images of ballots cast," and as such it is not a meaningful check on the original count. 18 Using the CVR instead of ballot image also appears to violate Texas Election Code 214.049 (e): "If electronic voting system ballots are to be recounted manually, the original ballot, rather than the duplicate 18 Secretary of State is somewhat unclear on this issue. While "images of ballots cast" could be considered as a subset of the category "cast vote records," the CVRs in this case are not, in fact, images. In logical terms, the expression would be that just because all A are B does not mean all B are A. (All dogs are animals, but not all animals are dogs.) In its 2014 Electronic Voting System Procedures bulletin, posted online at the SOS appears to not clearly differentiate cast vote records from ballot images. See, e.g., Section 8: Section 8 - Requested Recounts (if necessary) Requested Recount on DRE Voting Systems (Pursuant to TEe § 214.071): 4. The candidate requesting a recount may request that the recount be done electronically or manually. 5. For an electronic recount, the persons specifically permitted by law to be present at the recount are also authorized to be present as the election media are reloaded into the central accumulator system. 6. For a manual recount of a DRE election, the Recount Coordinator shall organize the printing of cast vote records (ballot images) for the affected race or issue. a. The Recount Coordinator shall notifY the parties in the recount of the date, place, and time the printing of cast vote records (ballot images) will take place. b. The full recount committee is not required to be present at the printing of cast vote records (ballot images) and the Recount Chair shall determine how many members should be present. The persons specifically permitted by law to be present at the recount are entitled to be present as the cast vote records (ballot images) are printed and to have the same number of representatives as allowed for the recount. c. If the manual recount does not take place immediately after the printing of the cast vote records (ballot images), the printed cast vote records (ballot images) shall be locked and secured until the recount takes place. d. A manual count of the printed cast vote records (ballot images) shall be conducted in the same manner as a recount of hand-counted paper ballots. After the recount is complete, the printed cast vote records (ballot images) shall be secured and preserved for the appropriate preservation period for maintaining election records. Pressley v. Casar Fifth Amended OP Contest p.22 1559 of the original ballot, shall be counted." (Emphasis added.) 58. Contestant requested to conditionally proceed with the Recount and re-print the available CVR data tiles. 59. Pursuant to TEX. ELEC. CODE § 213.007, the machines, materials, programs, and records may be available to the Recount Committee. Pursuant to TEX. ELEC. CODE § 213.013(h), each person entitled to be present at a recount is entitled to observe recount activities. Contestant was not allowed to view the full recount process and how the recount data was selected from the electronic voting machines. The CVR data files were identified, isolated and pre-selected prior to the beginning of the Recount. Contestant requested to view the source and properties of the CVR files, such as dates of the CVR files and origination, and was denied by the Recount Committee Member, the Travis County Director of Elections, Michael Winn. Recount Precinct Returns-mega] Votes Counted 60. Pursuant to TEX. ELEC. CODE § 214.002, counting procedures for a recount shall be certified in the same manner as the original count. Pursuant to TEX. ELEC. CODE § 65.014(b)(l), the procedures for preparing the original precinct returns must state the total number of voters who voted at the polling location as indicated by the poll list. Poll lists were not apparently reviewed by the Recount Committee during the recount. Dr. Pressley requested the poll lists to be reviewed and the number voters per precinct be reconciled with those documented on the polling location combination sign-in forms. Pressley requested those numbers be reconciled with the recount results, because of Early Voting voter lists discrepancies identified in the Recount Petition. The request was denied by the Travis County Clerk, the Chair of the Recount Committee, and the Director of Travis County Elections. The request was also specifically made prior to the recount in the Amended Petition for Recount (See Attached Appendix 11, Amended Petition for Recount.) Pressley v. Casar Fifth Amended OP Contest p.23 1560 61. Pursuant to TEX. ELEC. CODE § 213.012, the committee chair prepared a report of the vote count. The Travis County Clerk and the Director of the Elections Division repeatedly informed Dr. Pressley that "it was not the scope of the Recount" to reconcile the ballots with the number of voters. The chair wrote, "The numbers of voters matched the number of ballots cast," and signed the report (See Attached Appendix 14, "Recount Affidavit of Jay Brim"). During the Recount, the numbers of voters on voter lists were not publicly reconciled with the ballots recounted by the chair. Dr. Pressley commented to the chair, "Matching the numbers was not supposedly done today," and no explanation was provided by the chair. 62. On January 5, 2015, the Mayor of Austin and City Clerk approved Contestant's amended petition requesting a manual recount of actual stored "images of ballots cast.,,19 Contestant's amended petition included a request to reconcile the ballots cast with the number of voters documented on the sign in sheets and combination fomls for District 4 for the countywide polling locations and Precincts to ensure accurate reporting of results. The number of voters recorded and the number of votes recorded did not match. Ballot by Mail Ballots Are The Only Legal Ballots That Are Properly Preserved 63. This is why printing the "images of the ballots cast" is critical. The ballot in the General Election was very different (8 candidates) from the ballot in the Run Off (2 candidates). If some memory cards or counting software were reused by mistake, then the "images of the ballots cast" will instantly and unmistakably distinguish the tme votes from the illegal votes. This is the intent of the 19 Texas Election Code §213.016. Sec. 213.016. PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES. During any printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount, the full recount committee is not required to be present. The recount committee chair shall determine how many committee members must be present during the printing of the images. Each candidate is entitled to be present and to have representatives present in the same number as prescribed by Section 213.0 13(b) for a recount during the printing of the images. Pressley v. Casar Fifth Amended OP Contest p.24 1561 "images of ballots cast" language of the law. Which ballots were counted is the question that can be answered only by review of the "images of ballots cast." 64. The mandatory nature of this requirement becomes clear in context. [W]e believe that violations of certain recording provisions by election clerks can certainly undermine the purpose of the election code and obscure the true will of the qualified voters. Gonzalez v. Villareal, 251 S.W.3d at 778 65. Failure to retain "image of ballots cast," "ballots" and or "ballot originals" is precisely such a violation, because there is no clear and unequivocal record of the voter's intent, absent such an Image. 66. Given the facts and the election mistakes made by Travis County election officers, all of the 4,023 votes that show to be cast in person, are in question and must be verified. Therefore, we ask the Court to compel Travis County to print and tally the "images of ballots cast" for the District 4 Run Off so the court may ascertain whether the outcome as shown by the canvass is not the true outcome because illegal votes were counted. The list of the 4,023 voters and their Voter ID' s are provided in Appendix 15. 67. The recount included the Ballot by Mail ballots, and those specific results for Pressley and Casar were determined?O Ballot by Mail Votes were cast in seventeen of the eighteen precincts of District 4. 21 Pressley received 240 votes and Casar received 240 votes of the 480 total votes cast for either candidate for the Ballot by Mail ballots. Pressley received exactly 50% of the votes. 68. The Ballot by Mail result is very different from the 33.3 and 33.8% Pressley is reported to ha ve received for early voting and election day voting from the "cast vote records" - a variation from mail-in votes and non-mail-in votes of almost 20% (See attached Appendix 3, "Recount 20 See attached Appendix 3, "Recount Results." 21 One precinct, with a population of a single voter, showed no votes. Pressley v. Casar Fifth Amended OP Contest p.25 1562 Results"). 69. The only actual "ballots" that were preserved and counted during the recount show Pressley and Casar split the vote exactly in half. Moreover, 10 of the 18 precincts showed 50% or more of the vote for Pressley. The Ballot by Mail ballots that were cast for either candidate (total of 480 votes) were over 10% of the total ballots cast for the Run Off election. 70. The 480 Ballot by Mail ballots are the only" ballots," as that term is defined in the Election Code, which were available and counted during the recount. Therefore, the election should have been re-canvassed only with the 480 Ballot by Mail "ballots" and not the results including the 4,023 illegally recounted "cast vote records." 71. This is an additional reason for the court to compel the Travis County Clerk to comply with TEX. ELEC. CODE § 213.016 22 and 214.049 (e?3 to print and count the statutorily required "images of ballots cast" and ascertain whether the previous outcome of the election is not the true outcome. 72. On January 6, 2015, the recount was conducted and completed. After the recount, the totals were unchanged as compared to the original canvassed results. The totals were Laura Pressley 1,563, Gregorio "Greg" Casar 2,854 for a total of 4,417 votes cast. 73. Reconciliation ofvoier signatures on rolls at polling locations and total ballots cast has not been completed. An election contest is the only available remedy to explore the discrepancy between the number of ballots counted and the number of voter names and signatures in the precincts. 74. The sum total of all voting irregularities identified herein exceeds the number of votes by 22 "PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES" 23"If electronic voting system ballots are to be recounted manually, the original ballot, rather than the duplicate of the original ballot, shall be counted." Pressley v. Casar Fifth Amended OP Contest p.26 1563 which the election was decided. 75. If no "images of ballots cast" can be retrieved, printed and counted, Travis County cannot unequivocally determine the outcome of the election. The Court may order each of the more than 4,000 voters who voted in person to testify as to how they voted, pursuant to Texas Election Code Sec. 221.010. "SECONDARY EVIDENCE FOR UNAVAILABLE BALLOTS. 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." 76. In the alternative, if Travis County cannot produce "images of ballots cast" to be printed and counted, then Travis County cannot unequivocally determine the outcome of the election, and the election is void. As a matter oflaw, the Court must therefore order a new election. TEX. ELEC. CODE § 232.041. 24 VII. PETITION TIMELY FILED 77. This Election Contest is brought in accordance with the provisions of TEX. ELEC. CODE §232.008, which requires the Original Petition to be filed with the District Court not later than the 30 th day after the date the official result of the contested election is determined. 78. On Tuesday, December 30 th , the Mayor and City Council of Austin conducted an official canvass and certification of the Run Off results for all races on the December 16,2014 ballot, including District 4. However a recount was conducted on January 6, 2015 and those results did not change. The deadline for submission of a petition in an election contest is January 29, 2015. The original petition was filed on or before that date and was timely filed. 24 Sec. 232.041. NEW ELECTION ORDERED IF CONTESTED ELECTION VOID. In an election contest in which the contested election is declared void, the court shall include in its judgment an order directing the appropriate authority to order a new election. Pressley v. Casar Fifth Amended OP Contest p.27 1564  VIII. CONDITIONS PRECEDENT 79. All conditions precedent have been performed or have occurred. IX. VIOLATIONS OF LAW Texas Election Code Violation Lack of Notice of Relocation of Polling Place 82. The facts asserted above are included herein by reference. Contestant claims that voters were disenfranchised due to the failure of Travis County to provide and/or maintain an adequate notice at the general election polling place (Highland Mall and other voting locations identified herein) detailing the relocation of the polling place to the Travis County offices for the runoff election in December 2014. Such failure to provide notice of relocation of the polling place for the runoff election is a violation of Texas Election Code § 43.062. Section 43.062 states: Sec. 43.062. NOTICE AT PREVIOUS POLLING PLACE. Ifthe location of the polling place for an election precinct is different from the location used for the precinct in the preceding election ordered by the same authority, the authority responsible for giving notice of the election shall, if possible, post notice at the entrance to the previous polling place stating that the location has changed and providing the location of the new polling place. Added by Acts 2001, 77th Leg., ch. 802, Sec. 1, eff. Sept. 1,2001. Contestant seeks an order requiring a vacation of the runoff election and an order requiring a properly noticed runoff election be held forthwith. Failure to Provide "Images of Ballots Cast" 83. Contestant asserts that the December 2014 runoff fails to comply with the statutory requirements of the Texas Election Code Chapters 128 and 213. Section 128.001 states: Sec. 128.001. COMPUTERIZED VOTING SYSTEM STANDARDS. Pressley v. Casar Fifth Amended OP Contest p.28 1565  (a) The secretary of state shall prescribe procedures to allow for the use of a computerized voting system. The procedures must provide for the use of a computerized voting system with: (1) multiple voting terminals for the input of vote selections on the ballot presented by a main computer; and (2) a main computer to coordinate ballot presentation, vote selection, ballot image storage, and result tabulation. 84. Section 213.016 states: Sec. 213.016. PRINTING IMAGES OF BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES. During any printing of images of ballots cast using direct recording electronic voting machines for the purpose of a recount, the full recount committee is not required to be present. The recount committee chair shall determine how many committee members must be present during the printing of the images. Each candidate is entitled to be present and to have representatives present during the printing of the images in the same number as Section 213.013(b) prescribes for watchers for a recount. Added by Acts 2003, 78th Leg., ch. 583, Sec. 2, eff. Sept. 1,2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 1235 (S.B. 1970), Sec. 22, eff. September 1,2009. 85. As asserted above, the Travis County Clerk cannot provide "images of ballots cast" for purposes of a recount in the December runoff election as required by the Texas Election Code. Because the Travis County Clerk cannot produce "images of ballots cast", the ballots cast on the electronic voting machines cannot be verified. Contestant seeks an order from this case vacating the December 2014 runoff election. Since the only verifiable votes in the December runoff are the ballots by mail, said votes resulting in a tie in the runoff, Contestant seeks an order from this Court directing that another nmoff election be conducted and that the Travis County Clerk provide "images of ballots cast" in such a runoff election for purposes of allowing all affected parties to verify the results of said runoff in compliance with the above-referenced provisions of Pressley v. Casar Fifth Amended OP Contest p.29 1566  the Texas Election Code. Violation ofSection 2 of the Federal Voting Rights Act 86. Contestant asserts that failure to provide notice at the general election polling place of the relocation of the polling place for the runoff has a disproportionate impact on minority voters in violation of Section 2 of the Voting Rights Act. 42 U.S.c. §§ 1973b(f), 1973l(c)(3» (now 52 USC 10303) bars voting discrimination against certain language minorities--specifically, persons of American Indian, Asian American, Native Alaskan, and Spanish heritage. Members of the protected class of Spanish heritage in Precincts 142 and 156 (Appendix 1) were disenfranchised by the confusion created by the lack of notice of the change in polling place for the December 2014 runoff election. Contestant seeks an injunction from this Court pursuant to 42 U.S.c. § 1983 vacating the runoff election and requiring a new runoff election forthwith. IX. MOTION TO MODIFY STANDARD DISCOVERY PROCEDURES 87. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign an order shortening the time allowed for Contestee to comply with the discovery requests set forth below to no more than fifteen days. 88. Pursuant to Texas Rule of Civil Procedure 191.1, Contestants request that the Court sign an order shortening the time allowed for Contestee and third-party witnesses, voters, the City of Austin and Travis County, to comply with the discovery requests set forth below in paragraph to no more than ten days, and that the period of notice required for Deposition on Written Questions be reduced to ten days. 89. Contestants further requests that the Court slgn an order requmng that Contestee's Pressley v. Casar Fifth Amended OP Contest p.30 1567 response to the request for disclosure, and all other responses and answers in this case be hand- delivered, faxed or emailed. 90. The foregoing modifications to standard discovery procedures are necessary because of the accelerated procedures that apply to this election contest. The foregoing reasons constitute good cause for the requested relief. X. RESPONSE TO SPECIAL EXCEPTIONS Introduction 91. Dr. Pressley has found indisputable election irregularities and mistakes that were made in conducting the District 4 election held on December 16, 2014 that show the outcome as shown by the final canvass is not accurate and she is bringing this election contest. Because illegal votes were counted, eligible voters were prevented from voting, legal votes were not counted, and Travis County election officers made errors and mistakes, Dr. Pressley is asking, pursuant to Section 221.003 (a), for the "court to ascertain whether the outcome of the District 4 Run Off election, as shown by the canvass, is not the true outcome." If a contestant is prevented by the county clerk from proving the actual number of legal votes by the clerk's act of not preserving or requiring or counting images of the ballots actually cast there is no way to conclude the clerk reported the true outcome . Without the images of the actual ballots there is not a true outcome and the run-off election must be repeated preserving the images of the ballots cast as provided and required by state law. 92. Contestee alleges Dr. Pressley is attacking the entire state-wide electronic-voting system. In fact, the contest is limited solely to the discrete errors made by the Travis County Clerk's office in this single election. All counties are capable of complying with the law and preserving images of the actual ballots cast by a voter. Travis county just elected to ignore that law and the sound public Pressley v. Casar Fifth Amended OP Contest p.3l 1568 policy behind it. It cannot certify a true outcome by reason of its own misconduct in this election that is at issue in this case. 93. Weaknesses in the Travis County Election systems are well known and have been extensively identified. Several years ago, Travis County Clerk Dana DeBeauvoir herself convened a Travis County Clerk Election Study Group to evaluate Travis County's current voting system and make recommendation s for future systems. (http://www. traviscountyclerk.org/eclerklcontent/images/presentations_ articles/pdCtc _elections _E SG_Report_2009. pdf) Clerk DeBeauvoir had determined that a study group was needed to address public concerns about electronic voting and to ensure ample time to plan for an upgrade or replacement of the existing system and "its most significant recommendation is that Travis County move away from an all-electronic voting system to one that offers electronically-counted paper ballots." Clerk DeBeauvoir is on record stating the need to redesign and replace Travis County's voting systems: (http://www. traviscountyclerk.org/eclerklcontent/images/presentations articles/pdf tc elections 2 013.07.26 star.pdf and https://www.supportthevoter.gov/files12013/09/Dana-Debeauvoir-STAR- Voting-System-Diagram.pdf and "Three years ago, DeBeauvoir decided that something had to change. "1 said, 'Okay, I'm fed up. I'm going to design my own system.'" Part of her frustration stemmed from complaints lodged against the county that she felt blamed officials for things beyond their control."( https://www.texastribune.org120 14/07/09/travis-county-forges-new- territory-voting-machines/): 94. Given the specific voting irregularities outlined herein, Dr. Laura Pressley fully supports the Clerk's search for a more accountable and election system. One critical component that the Travis County system is lacking is that Texas Election Code allows for a manual recount using Pressley v. Casar Fifth Amended OP Contest p.32 1569 "images of ballots cast." When Pressley requested a manual recount using "images of ballots cast" for the District 4 Run Off election, Travis County is on record stating they cannot comply. Interestingly, in January 20] 5, Pressley was informed both by DeBeauvoir and fonner Travis County Judge Bill Aleshire that no other candidate in Travis County's history had requested a manual recount of "images of ballots cast." A review of reported cases shows no indication that any candidate in the state has requested such a statutorily-allowed recount. This contest, therefore, to the extent it decides issues regarding this mandate and this language, is a case of first . . 25 ImpressIOn. The court will, of course, be guided by the Texas Supreme Court's view of statutory language, 25 which is not as fluid as that of federal courts or other state courts. If the statutory text is unambiguous, a court must adopt the interpretation supported by the statute's plain language unless that interpretation would lead to absurd results. See Tune v. Tex. Dep't ofPub. Safety, 23 S.W.3d 358,363 (Tex.2000) ("We must enforce the plain meaning of an unambiguous statute."); RepublicBank Dallas, NA. v. Interkal, Inc., 691 S.W.2d 605,607 (Tex.1985) ("Unless a statute is ambiguous, we must follow the clear language of the statute. "); Brazos River Auth. v. City of Graham, 163 Tex. 167,354 S.W.2d 99, 109 n. 3 (1962) ("[O]perating as we are under a strict theoretical division of governmental powers, it would take a bit of doing on the part of the judiciary to say, in the absence of ambiguous and uncertain statement or patent and manifest absurdity, that the Legislature intended something different from the clear import of the words chosen by it.. .. "); Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1039 (1916) (The literal meaning of a statute may be disregarded "only where it is perfectly plain that the literal sense works an absurdity or manifest injustice."). Texas Dep't ofProtective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004). (emphasis added.) See also AIC lVff.!tnt. v. Crews. 246 S.W.3d 640 (Willet. J.. concurrim!) (internal citations omitted) (citing to Alex SheshunoffMf.!mt. Servs .. L.P. v. Johnson. 209 S.W.3d 644.652 nA (Tex. 2006) and 542 U.S. 241, 267, 124 S. Ct. 2466, 159 L. Ed. 2d 355 (2004) (Scalia, J., concurring in the judgment). This Court recognizes that legislative intent is best embodied in legislative language. We recently cautioned that "over-reliance on secondary materials should be avoided, particularly where a statute's language is clear. If the text is unambiguous, we must take the Legislature at its word and not rummage around in legislative minutiae." Pressley v. Casar Fifth Amended OP Contest p.33 1570 95. With regard to the fact that Travis Count's use of one version of the Hart InterCivic eSlate system may violate the Texas Election Code requirements for storing, retrieving, and printing of "images of ballots cast," we respectfully assert any regulatory redefinition equating "images of ballots cast" with "cast vote records" exceeds the statutory grant of authority?6 Given that the term "ballot" is defined in the Texas Election Code and "images of ballots cast" is referenced with regard to recounts and "cast vote records" are not, the Texas Election Code trumps the Secretary of State's administrative definitions. 96. Addressing the various pieces of evidence that became available and the irregularities that occurred during the recount is important in the analysis and evaluation of this election contest. The recount evidence is critically material to this case and the allegations are legally relevant to this election contest. Moreover, it is in the recount failures that Travis County's failure to use equipment up to statutory standards becomes clear. 97. The legal question raised by an election contest is whether the outcome of the contested District 4 election is not, or cannot be conclusively detennined to be, the true outcome. Specifically, Dr. Pressley has found that illegal votes were counted, Travis County Elections Division prevented eligible voters from voting, failed to count legal votes, and engaged in other irregularities that materially affected the election results. Moreover, because of the failure of Travis County to maintain "images of ballots cast", the outcome cannot be detennined to be the Faced with clear statutory language, "the judge's inquiry is at an end." It may be a widespread practice to mine the minutiae of legislative records to discern what lawmakers had in mind, but as we have held, relying on these materials is verboten where the statutory text is, as here, absolutely clear. 26 We cannot construe the rule in a manner that is inconsistent with the statute. See, e.g., Centerpoint Enerfc:.Y, Inc. v. Public Uti!. Comm'n, 143 S.W.3d 81,85 (Tex. 2004) (observing that rule is invalid if it violates statutory provision); Texas Workers' Compo Comm'n v. Patient Advocates, 136 S.W.3d 643, 657-58 (Tex. 2004) Tex. }.1ut. Ins. CO. V. Vista Cmty. Aled. Ctr., LLP, 275 S.W.3d 538,557,2008 Tex. App. LEXIS 8602,45 (Tex. App. Austin 2008) (emphasis added.) Pressley V. Casar Fifth Amended OP Contest p.34 1571 true outcome. Case Law Presented by Contestee is largely irrelevant Andrade v. NAACP, 345 S.W. 3d 1 (Tex. 2011) 98. Contestee Casar's ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO CONTESTANT'S ORIGINAL CONTEST OF ELECTION references the Andrade v. NAACP case, seeks to apply it to the instant case, and states that "the Secretary of State's certification of eSlate for use by Travis County did not violate equal protection rights of voters using electronic voting system." 99. Contestee Casar misinterprets Contestant Dr. Pressley's claims in this case. She does not assert a claim of violation of equal protection as it relates to electronic voting systems. Rather, Contestant Dr. Pressley asserts that illegal votes were counted, election officers prevented eligible voters from voting, election officers failed to count legal votes, and election officers made mistakes that resulted in an election outcome which is not the true outcome and did not preserve images of ballots to be used as acheck on the computer results which prevented a detemlination that the election and the recount was a true outcome. Thus, the Andrade case is irrelevant. 100. Contestee Dr. Pressley's election contest claims were not asserted in Andrade v. NAACP and Dr. Pressley has been directly harmed by Travis County's conduct during the District 4 election and she has been directly harmed by the County's inability to ascertain the true outcome because "ballots," "original ballots" and/or "images of ballots cast" cannot be counted. Tex. Democratic Party v. Williams, 285 Fed. Appx. 194, 195 (5 th Cir. 2008) 101. In CONTESTEE'S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO CONTESTANT'S ORIGINAL CONTEST OF ELECTION he references Tex. Democratic Party v. Williams, and applies it to our case with regard to "the eSlate did not violate voters' rights under Pressley v. Casar Fifth Amended OP Contest p.35 1572 the First and Fourteenth Amendments to the United States Constitution." 102. Contestee Casar misinterprets Contestant Dr. Pressley's claims in this case. She does not assert claims of violations of the First and Fourteenth Amendments to the United States Constitution as it relates to electronic voting systems. Rather, Contestant Dr. Pressley asserts, illegal votes were counted, election officers prevented eligible voters from voting, election officers failed to count legal votes, and election officers made mistakes that resulted in an election outcome which is not the true outcome and they did not preserve the images of ballots which is a possible function of the eSlate program. 103. Additionally, as a matter of law, Dr. Pressley claims that "cast vote records" do not meet the statutory requirements of "ballots," "original ballots" and/or "images of ballots cast." Therefore, if "images of ballots cast" were not preserved, and thus cannot be retrieved, printed and counted, then Travis County cannot unequivocally determine the outcome of the election. Pressley v. Casar Fifth Amended OP Contest p.36 1573  Conclusion 104. Therefore, based on the foregoing, the Contestant requests the run-off election be declared void, a new run-off be held at which images of the ballots actually cast be preserved using procedures compliant with the Texas Election Code for use in the event of a contest, the Court award reimbursement for the cost of her election contest, recount fees, and that the Court grant all other and further relief, in law and in equity, to which she may be entitled. Respectfully submitted, David Rogers LA W OFFICE OF DAVlD ROGERS By: /s/ David Rogers David A. Rogers Texas Bar No. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836 - Telephone 512-201-4082 - Facsimile Email: Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney jor Contestant Dr. Laura Pressley Pressley v. Casar Fifth Amended OP Contest p.37 1574  CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on April 20, 2015 on counsel of record as follows: Charles 'Chuck' Herring Jr. 09534100 Jess Irwin - 10425700 Lauren Ross - 24092001 Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580 Kurt Kuhn - 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002- Facsimile ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR Andrew M. Williams Assistant County Attorney Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767 Fax: email: andrew.williams@traviscountytx.gov By: /s/ David Rogers Pressley v. Casar Fifth Amended OP Contest p.38 1575  5/26/2015 8:00:00 AM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-15-000374 D-1-GN-15-000374 LAURA PRESSLEY, § IN THE DISTRICT COURT Contestant, § § V. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR, § Contestee. § 201 st JUDICIAL DISTRICT CONTESTANT'S RESPONSE TO THIRD PARTY MOTION FOR PROTECTIVE ORDER TO THE HONORABLE JUDGE MILLS COMES NOW, Laura Pressley, Contestant responding to Third Party's Motion for Protective Order. I. BACKGROUND 1. Contestant requests this honorable Court to compel the Clerk of Travis County, Texas to provide documents responsive to her Second Request for Production of Documents to Travis County Clerk, Dana DeBeauvoir submitted on May 14, 2015. Also, Contestant request this honorable Court to compel the Clerk of Travis County, Texas to respond appropriately to deposition requests that have been made by Contestant. The Clerk has recently filed a Motion for Protective Order claiming Contestant is conducting discovery which is outside the Court's Order on Third Party Discovery Plan. This is not an accurate representation. The Travis County Clerk has made erroneous objections, or asserted privileges which do not comply with Texas Rule of Civil Procedure 193. Contestant's Second Request for Production ofDocuments submitted to the Pressley v. Casar, Contestant's Response to Third Party Protective Order p.l 4 0 Travis County Clerk is relevant to the subject matter of her pending action and are directly related to new information disclosed in the Clerk's discovery response and Contestant would be unfairly prejudiced without such additional discovery. II. ARGUMENT AND AUTHORITIES 2. The Travis County Clerk continues to make overly broad statements and objections to Contestant's production requests. The Clerk has not provided a good faith factual and legal basis for the objections. Instead the Clerk's objections are broad, non-specific, and do not identify which of the 29 individual requests are problematic and why. 3. According to Texas Rule of Civil Procedure 192.3, it is not a ground for objection that the information sought will be inadmissible at trial if the information appears to be reasonably calculated to lead to discovery of admissible evidence. All of Contestant's requests will be admissible and/or is expected to lead to admissible information. 4. Contrary to the Clerk's assertion, Contestant is not seeking discovery that is contrary to the Court's rulings. Contestant's Second Request for Production of Documents, submitted to the Travis County Clerk, is relevant to the subject matter of her pending action and are directly related to new information disclosed in the Clerk's discovery response and deposition. Furthermore, Contestant would be unfairly prejudiced without such additional discovery. 5. If the Clerk believes a request violates the Court's ruling, the Clerk should be specific as to which requests from Contestant's Second Request for Production of Documents are in violation of the Third Party Discovery Control Plan. At this time, the Clerk has only make broad generalities and no specific details of her allegations have been presented. Pressley v. Casar, Contestant's Response to Third Party Protective Order p.2 4 07 6. If the Court desires, Contestant is more than amendable to providing details for the various production request to explain the importance of each item and describe how the requests will either be admissible evidence at trial or lead to admissible evidence. However, this has been made clear in the response to summary judgment and the motion to compel already on file. 7. In addition, in light of the recent discovery responses and the Clerk's deposition, new pleadings have been filed in Contestant's 6th Amended Petition 1 . Contestant's Second Request for Production of Documents 2 reflect, and are directly related to, new information disclosed in Clerk's recent discovery response and Contestant would be unfairly prejudiced without such additional discovery. 8. In fact, this Court stated to Contestant's Council, Mr. Rogers, "If you can provide the Court with some evidence as to some -- one of these mistakes that you can identify, I'll have them search for those particular issues .... "(Transcript from Special Hearing, April 6, 2015, pp. 124- 5). See below for examples of such mistakes that warrant further discovery requests. 9. The Clerk's discovery responses and her subsequent deposition have validated that numerous mistakes were made during the tabulation of votes on the night of the Runoff election. 3 ' 4 Many vote corruption mistakes (Exhibit C, pages 5, 22, 23, 26, 27, 29 and 42), as evidenced in the Hart Voting System security audit logs errors, "Invalid/Corrupt MBB [Mobile Ballot Box-where 1 Exhibit A, Contestant's 61h Amended Petition. 2 Exhibit B, 2nd Request for Production for Travis County Clerk, Dana DeBeauvoir 3 Exhibit C, Tally system security audit logs 4 Exhibit D, Deposition of Travis County Clerk, Dana DeBeauvoir Pressley v. Casar, Contestant's Response to Third Party Protective Order p.3 4 08 votes are stored]." Regarding these errors, the Clerk said, , "I've never heard of so many." 5 (Exhibit D, Page 98 lines 16-25) 10. Contestant has made additional production requests based on the reasonable calculation that the new information related to corrupt memory cards, corrupt hardware, preventive maintenance of hardware, corrective action logs, those with access to corrupt memory cards, manuals, specifications, backup hardware, software, parallel testing, etc. will be admissible at trial or will lead to admissible information at trial so the Court can determine if the true outcome of the election can be known 11. In addition, discovery documents specifically state ballot images in the form of an image file (.bmp) and cast vote records are stored on the Hart Voting System6 (Exhibit E, page 24 and 259- 260) and thus Contestant has made specific requests related to ballot images stored on the equipment. 12. The Clerk further misrepresents the facts in this case with respect to the manual recount. The manual recount was conducted in violation of the Texas Election Code, in that ballot images were not used to recount votes, A cast vote record is not an image ofballots cast because it is not a ballot, or an image. 13. Also, in the Motion for Protective Order, the Clerk misrepresents that documents have been provided to Contestant that "verify the outcome of the election": 5 Exhibit D, Dana Deposition, MBB references. 6 Exhibit E, Hart Voting System Ballot Now Operations Manual Pressley v. Casar, Contestant's Response to Third Party Protective Order p.4 4 0  a. Polling place sign in sheets-These do not verify the votes cast by voters, do not meet requirements in the Texas Election Code as statutory ballot images, and therefore, do not verity the election outcome. b. Audit logs- These do not verity the votes cast by voters, do not meet requirements in the Texas Election Code as statutory ballot images, and therefore, do not verity the election outcome. In addition, the audit logs have been found to have missing entries and thus are not credible. c. Serial numbers of equipment- These do not verify the votes cast by voters, do not meet requirements in the Texas Election Code as statutory ballot images, and therefore, do not verity the election outcome. d. List of Early Votes names- These do not verity the votes cast by voters, do not meet requirements in the Texas Election Code as statutory ballot images, and therefore, do not verify the election outcome. In addition, compared to Early Voting lists provided in December to Contestant, it appears many voters names have been removed and thus is not a credible list. e. Canvass Reports- These do not verify the votes cast by voters, do not meet requirements in the Texas Election Code as statutory ballot images, and therefore, do not verify the election outcome.. These lists are produced from the same system that was subject to the "Invalid/Corrupt MBB" errors and thus are unreliable. Pressley v. Casar, Contestant's Response to Third Party Protective Order p.5 4 10  f. Zero Tapes-These do not verity the votes cast by voters, do not meet requirements in the Texas Election Code as statutory ballot images, and therefore, do not verify the election outcome. In addition, discovery documents provided by Travis County show no "Zero Tapes" that meet the Texas Secretary of State's definition were printed and retained for the Runoff and thus were not provided to Contestant. 14. To be clear, documents have not been provided to Contestant that meet Texas Election Code to verity the voters' intent in the District 4 Runoff election and thus do not verify the outcome of the election. 15. Furthermore, the Clerk misrepresents the intent of the Court's Discovery Control Plan Order7 paragraph 8 whose subject matter specifically refers to communication documents and Contestant's Second Request for Production do not ask for any communication related documents: a. " ... emails, memos, correspondence, or text messages regarding communications regarding the election without specificity as to the email and basis ... " b. " ... communications (including reports, emails, memo, correspondence, text messages, IM's, video conferencing or power points) regarding the election ... " 7 Exhibit F, Court's Discovery Plan Order Pressley v. Casar, Contestant's Response to Third Party Protective Order p.6 4 11 16. It is unreasonable for the Clerk to claim immunity from further discovery requests since the election records of the Runoff are statutorily held by the Travis County Clerk's office. Additional discovery requests are needed to ascertain if the true outcome can be determined. 17. Also, for the Clerk to continue to make statements that Contestant's case is a "frivolous contest" is highly disingenuous and inappropriate given the numerous election irregularities and possible criminal violations that have caused statutorily required election records to be missing and/or deleted. Because of the missing election records, the true outcome of the Runoff cannot be known and Contestant will continue to make requests for documents and depositions that will be admissible in trial or lead to admissible information for trial. 18. It is not been proven by the Travis County's Clerk's office that the Hart Voting System does not have the capability to produce "images of ballots cast" per the Texas Election Code. Based on Hart Manuals, and Hart patents, the equipment has the capability to store and use ballot image files in the form of a bitmap (.bmp ). Contestant asserts that Travis County may not understand how their equipment stores or retrieves ballot images: a. Firstly, the Ballot Now manual 8 provided to Contestant clearly documents the system saves "ballot images" in the form of a bitmap (.bmp format) file and in addition, it stores cast vote records (data structure format) to transfer data to Tally system. In the Clerk's deposition, she stated, the Ballot Now does not store ballot images. This is clearly a misinformed statement. 8 Exhibit E, Hart's Ballot Now Operations Manual (page 24 and 259-260) Pressley v. Casar, Contestant's Response to Third Party Protective Order p.7 4 12  b. Secondly, in Contestant's First Request for Production, all Cast Vote Records were requested and we know they have not been produced. It has been repeatedly stated by the Clerk's counsel, Mr. Williams, that they have produced all cast vote records. This is clearly a misinformed statement given the Ballot Now manual9 clearly states Cast Vote Records are stored and used to transfer Absentee/Mail in Ballot voter data, and c. Thirdly, in Contestant's First Request for Production, all Ballot Images were requested and we know they have not been produced. It has been repeatedly stated by the Clerk's counsel, Mr. Williams, that they cannot produce any ballot 1mages. This is a misinformed statement given Travis County's Ballot Now Operations manual clearly states ballot images in the form of a bitmap file (.bmp) are stored and can be retrieved. 10 Thus, given these three examples of Travis County not being aware of the full capabilities of the Hart system as they relate to cast vote records and ballot images, Contestant seeks information to prove or disprove ballot images remain on the eSlate, JBC, and the Mobile Ballot Boxes (MBB' s) for the Runoff. 19. Contestant understands and is sensitive to proprietary concerns given she holds four U.S. patents herself and because of her extensive background in the technology industry here in Austin. With that in mind, Contestant is amenable to gaining access to documents under a 9 Exhibit E, Hart's Ballot Now Operations Manual (page 24 and 259-260) 10 Exhibit E, Hart's Ballot Now Operations Manual (page 24 and 259-260) Pressley v. Casar, Contestant's Response to Third Party Protective Order p.8 4 13 protective order or in camera inspection. The intent of the discovery requests are to determine if the true outcome of the election can be known. 20. Oral deposition of those Travis County employees and/or contractors that have information regarding security database error codes or security protocols that occurred during the Runoff given the security breaches, missing audit log entries, corrupt error codes, duplicate vote entries, that occurred with the tabulation of votes is critical and is reasonably calculated to lead to admissible information. In addition, in her deposition, the Travis County Clerk agreed to provide names of such individuals. 11 21. The needs and circumstances of this election contest warrant the above referenced Second Request for Production and deposition of Travis County employee( s) that have knowledge of the details of the Runoff election as it relates to the error codes and entries documented in the audit logs. Respectfully submitted, David Rogers LAW OFFICE OF DAVID ROGERS By: Is/ David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836- Telephone 512-201-4082- Facsimile Email: Firm@DARogersLaw.com 11 Exhibit D, Deposition of Travis County Clerk, Dana DeBeauvoir, p. 7lines 1-9, p. 74lines 13-24 and p. 87 lines 1 - 10 Pressley v. Casar, Contestant's Response to Third Party Protective Order p.9 4 14  Mark Cohen 805 W. lOth Street, Suite 100 Austin, Tx. 78701 512-474-4424 512-472-5444 (f) Mark@cohenlegalservices.com www.CohenLegalServices.com Attorney for Contestant Dr. Laura Pressley Pressley v. Casar, Contestant's Response to Third Party Protective Order p.JO 4 15 22. 23. CERTIFICATE OF SERICE This is to certifY that a true and correct copy of the foregoing has been served in accordance with the Texas Rules of Civil Procedure on May 25,2015 on counsel of record as follows: Charles 'Chuck' Herring Jr. 09534100 cherring@herring-irwin.com Jess Irwin- 10425700 j ess@herring-irwin. com Lauren Ross - 24092001 laurenbross@herring-irwin.com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580 Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 Phone: (512) 476-6000 Fax: (512) 476-6002 ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR Jessica Belinda Palvino McGINNIS, LOCHRIDGE & KILGORE LLP 600 Congress A venue Suite 2100 Austin, TX 78723 Phone: 512-495-6000 Fax: 512 495-6093 jpalvino@mcginnislaw.com David A. Escamilla Pressley v. Casar, Contestant's Response to Third Party Protective Order p.ll 4 1 Travis County Attorney Sherine E. Thomas Andrew M. Williams Patrick M. Kelly Assistant County Attorneys Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767 Phone: (512) 854-9472 Fax: (512) 854-4808 email: Sherine. Thomas@traviscountytx. gov, Pat.Kelly@traviscountytx. gov, andrew. williams@traviscountytx. gov By: Is/ David Rogers Pressley v. Casar, Contestant's Response to Third Party Protective Order p.l2 4 17  6/5/2015 11 :44:20 AM Velva L. Price District Clerk Travis County NO. D-I-GN-15-000374 D-1-GN-15-000374 LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § 201ST JUDICIAL DISTRICT § GREGORIO "GREG" CASAR § Contestee § 201ST JUDICIAL DISTRICT § § NOTICE OF WITHDRAWAL AS CO-COUNSEL TO THE HONORABLE JUDGE OF SAID COURT: 1. Comes now David Rogers, attorney of record for Contestant Laura Pressley, and notices this court that he has withdrawn as co-counsel. 2. Contestant notified attorney David Rogers in writing on June 3, 2015 that his services have been terminated. 3. As such, attorney Rogers cannot appear before this court or correspond with this court or with any party to this suit in any capacity that purports to represent Contestant's interests. 4. At the time of filing of this Notice, attorney Mark Cohen continues to represent Contestant Laura Pressley as lead counsel. 5. Attorney Rogers would respectfully request this court direct all filings, correspondence and other communications to lead counsel Mark Cohen at his address and phone number on file with the court. 13  RESPECTFULLY SUBMITTED, LAW OFFICE OF DAVTD ROGERS By: Is/ David Rogers David A. Rogers Texas BarNo. 24014089 1201 Spyglass Drive, Suite #100 Austin, Texas 78746 512-923-1836- Telephone 512-201-4082- Facsimile Email: Firm(qiDARogersLaw.com CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Notice has been served in accordance with the Texas Rules of Civil Procedure on June 5, 2015 on counsel of record as follows: Charles 'Chuck' Herring Jr. 09534100 cherring(ii{herring-irwin.com Jess Irwin- 10425700 j ess@herring-irwin. com Lauren Ross - 24092001 laurenbross(il:{herring-irwin.com Herring & Irwin, L.L.P. 1411 West Avenue, Ste 100 Austin, TX 78701 Phone: 512-320-0665 Fax: (512) 519-7580 Kurt Kuhn- 24002433 Kurt@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive,# 310 Austin, Texas 78731 Phone: (512) 4 76-6000 Fax: (512) 476-6002 ATTORNEYS FOR CONTESTEE, GREGORIO "GREG" CASAR Jessica Belinda Palvino McGINNIS, LOCHRIDGE & KILGORE LLP 600 Congress A venue 14 Suite 2100 Austin, TX 78723 Phone: 512-495-6000 Fax: 512 495-6093 jpalvino@mcginnislaw.com David A. Escamilla Travis County Attorney Sherine E. Thomas Andrew M. Williams Patrick M. Kelly Assistant County Attorneys Travis County Attorney's Office P.O. Box 1748 Austin, Texas 78767 Phone: (512) 854-9472 Fax: (512) 854-4808 email: Sherine. Thomas@traviscountytx. gov, Pat.Kelly@traviscountytx.gov, andrew. williams@traviscountytx. gov By: Is/ David Rogers 15  6/15/2015 11 :53:52 AM Velva L. Price District Clerk Travis County D-1-GN-15-00037 4 No. D-1-GN-15·00.0374 LAURA PRESSLEY, § IN THE DISTRICT COURT Contestant, § § v. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR, § Contestee. § 20.1st JUDICIAL DISTRICT NOTICE OF ACCELERATED APPEAL TO THE HONORABLE COURT: NOW COMES, Laura Pressley, Contestant herein and give notice of her intent to appeal the trial court's judgment rendered on May 26, 2015 by accelerated appeal. This accelerated appeal is taken to the Third Court of Appeals, in Austin, Texas. This appeal does not pertain to a parental termination or child protection case as defined in Appellate 28.4. Respectfully Submitted, Mark r-n''"'"""" SBN: 04508400 805 W. 1oth Street, Suite 100 Austin, Texas 78701 (512) 474-4424 Phone (512) 472-5444 Facsimile mark@cohenlegalservices.com ATTORNEY FOR CONTESTANT 5224  CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing has been served by efile and/or facsimile to the following persons on this 15th day of June, 2015. Charles 'Chuck' Herring Jr. Jess Irwin Lauren Ross Herring & Irwin, L.L.P. 1411 West Avenue, Suite 100 Austin, TX 78701 (512) 320-0665 Telephone (512) 519-7580 Facsimile cherring@herring-irwin .com jess@herring-irwin.com Jessica Palvino McGinnis, Lochridge and Kilgore, LLP 600 Congress, Suite 2100 Austin, Texas 78701 (512) 495-6079 Telephone (512) 505-6379 Facsimile jpalvino@mcginnislaw.com Kurt Kuhn KUHN HOBBS PLLC 3307 Northland Drive,# 310 Austin, Texas 78731 (512) 476-6000 Telephone (512) 476-6002 Facsimile kurt@kuhnhobbs. com 5225  FILE COPY COURT OF APPEALS Filed In The District Court THIRD DISTRICT OF TEXAS ofT avis Cornty, Texas PO.BOXI2547,AUSTIN,TEXAS78711-2547 on ._ b 1 Z..0tS'" .M A:Jt www.txcourts.gov/3rdcoa.aspx (512) 463-1733 O . 3 . . l!:."" Velva L. Price, District Clerk JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE June 16,2015 Mr. Charles Herring, Jr. Mr. Mark A. Cohen Herring & Irwin LLP Law Office of Mark A. Cohen 1411 West Avenue Suite I 00 805 West 10th Street Suite 100 Austin, TX 78701 Austin, TX 78701 *DELIVERED VIA E-MAIL* *DELIVERED VIA E-MAIL* RE: Court of Appeals Number: 03-15-00368-CV Trial Court Case Number: D-1-GN-15-00037 4 Style: Laura Pressley v. Gregorio "Greg" Casar Dear Counsel: The Court has been advised that appellant has given notice of appeal. The cause in this Court will bear the number and style shown above. If appellant has not already done so, he must make a written request to the clerk and the court reporter and make arrangements for payment of the record within ten days of the receipt ofthis notice. See Tex. R. App. P. 34.6(b)(l). Very truly yours, JEFFREY D. KYLE, CLERK Courtland Crocker, Deputy Clerk cc: Ms. Mary Lou Taylor The Honorable Velva L. Price 1111111111111111111111111111111111111111111111111111111 004077088 5226  6/17/2015 10:48:35 AM Velva L. Price District Clerk Travis County NO. D-I-GN-lS-000374 D-1-GN-15-000374 LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR § Contestee § 201 st JUDICIAL DISTRICT CONTESTEE GREG CASAR'S REPLY TO DAVID ROGERS' RESPONSE TO CONTESTEE'S MOTION FOR SANCTIONS TO THE HONORABLE JUDGE DAN MILLS: Gregorio "Greg" Casar ("Casar") files this reply to David Rogers' Response to Contestee's Motion for Sanctions and would show as follows: 1. Rogers Misstates the Standard for Chapter 10 Sanctions Contestee Casar seeks relief under Chapter 10 of the Texas Civil Practice and Remedies Code. He does not seek sanctions under Texas Rule of Civil Procedure 13, and Rogers' Response confuses the two standards. Contestee's burden is not, as Rogers asserts, to prove that the Contestant's pleadings were "groundless," or brought for an "improper purpose." See Reply at 5-7. This is the standard under Texas Rule of Civil Procedure 13. A different test applies under Chapter 10 of the Civil Practices and Remedies Code, the authority under which Contestee seeks sanctions. Under § 10.001, the signer of a pleading or motion certifies that "each claim, each allegation, and each denial is based on the signatory's best knowledge, information, and belief, formed after reasonable inquiry." Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007)(emphasis in original) (upholding sanctions under CPRC Chapter 10 against an attorney who plead that two doctors provided or prescribed a certain drug to the plaintiff, in spite of 1 2020 information to the contrary in the plaintiff's medical records which the attorney possessed); see also Tex. Civ. Prac. & Rem. Code 10.001(2)-(3) (referring to "each claim" and "each allegation"). Casar is not required to show bad faith or malicious intent by Rogers. He must only show that Rogers certified he made a reasonable inquiry into all of the allegations when he did not and that he certified that all the allegations in the petition had evidentiary support when some allegations did not. Low, 221 S.W.3d at 617. A reasonable inquiry is that amount of examination that is reasonable under the circumstances of the case. Softech Int'l, Inc. v. Diversys Learning, Inc., No. 03-07-00687-CV, 2009 WL 638203, at *5 (Tex. App. Mar. l3, 2009) (citing Robson v. Gilbreath, 267 S.W.3d 401, 406 (Tex.App.-Austin 2008, pet. denied)). The trial court must examine the facts and circumstances as they existed when the pleadings were filed, and determine what information the plaintiffs did and could discover before filing suit. Softech Int'l, 2009 WL 638203 at *5 (citing Armstrong v. Collin Co. Bail Bond Bd., 233 S.W.3d 57, 63 (Tex.App.-Dallas 2007, no pet.)). The relevant portions of Section 10.001 state that: "The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory's best knowledge, information, and belief, formed after reasonable inquiry: . . . (2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery .... " 2 2021  Thus, § 10.001(2) addresses legal contentions, and § 10.001(3) addresses factual allegations. Section 10.001(2) applies only to counsel, Mr. Rogers, and § 10.001(3) applies to both Ms. Pressley and Mr. Rogers. II. Rogers Failed to Make a Reasonable Inquiry into the Claims and Legal Contentions Asserted under 10.001(2) Rogers repeatedly, throughout six separate Contests, made the legal contention that a "ballot image" differs from a "cast vote record." See Original Contest at 32-38; Second Amended Contest at 31-37; Third Amended Contest at 43-53; Fourth Amended Contest at 43-53; Fifth Amended Contest at 49-59; Sixth Amended Contest at 3, 13,82,84,97- 138. In his reply, he attempts to justify these contentions by claiming that he reasonably relied on several sources. See Rogers' Response at As an initial matter, Rogers did not cite most these supposed legal sources until the Sixth Amended Contest and therefore could not have relied on them for the first five Contests he filed. Furthermore, a close examination of these sources reveals that Rogers failed to make a reasonably inquiry into his claim that a Ballot Image differs from a Cast Vote Record. Simply put, Rogers' inquiry was not reasonable. He ignored an abundance of controlling and persuasive legal authority from the Texas Secretary of State, Election Assistance Commission, and Travis County, which define ballot image and cast vote record as synonymous. See, e.g., Contestee's Motion/or Summary Judgment at Ex. 15, U.S. Election Assistance Commission Glossary of Key Election Terminology (2007) at 10; Ex. 16, Memo from Keith Ingram, Electronic Voting System Procedures, (April 1,2014). He also ignored the letters that the Secretary of State's Election Administrator sent to Ms. Pressley, before suit was filed, expressly stating that the Travis County Clerk had printed ballot images. See Contestee's 3 2022 Amended Motion for Summary Judgment, Ex. 6, Letter from Texas Secretary of State Director of Elections Keith Ingram to Pressley (Jan. 20,2015); Ex. 7, Letter from Texas Secretary of State Director of Elections Keith Ingram to Pressley (Jan. 27,2015). Instead, he pieced together unrelated and outdated excerpts from the Election Code, the Texas Constitution, and various other sources. See Rogers' Response at The chart below analyzes the evidence upon which Rogers claims he relies, and the reasons why his reliance on these authorities is unreasonable. Source Reliance is Unreasonable Because ... Tex. Elec. Code § 124.063; These authorities do not state that a cast vote record Texas Election Code § 12S.001(a) differs from a ballot image. Moreover, Rogers' Texas Election Code Chapter 52; Texas citation to these sections is selective and he ignores Constitution Article 6, Sec. 4 other, clearly applicable authority to the contrary. For example, Texas Election Code § 52.075 gives the Secretary of State authority to prescribe the form and content of ballots for electronic voting machine. Similarly, § 129.002 of the Election Code gives the i , Secretary of State the authority to implement Direct Recording Electronic voting systems, like the Hart Intercivic System, that utilize Cast Vote Records. 1990 Federal Election Commission Rogers did not cite these supposed legal sources Performance and Test Standards until the Sixth Contest. The 1990 report is outdated and was superseded by a 2002 report from the FEC. Rogers failed to consider the more recent definition from the FEC, which does define a ballot image in a way that includes a CVR. See Contestant's Response to Summary Judgment at Ex. A-S, pages 2-21. The 2002 standards define ballot image as "an electronic record of all votes cast by the voter." Id. Furthermore, the Election Assistance Commission, not the Federal Election Commission, is the appropriate governing agency._The FEC enforces campaign finance laws. The EAC provides guidance on election administration. The Election Assistance Commission has unequivocally defined "ballot 4 2023  image" as synonymous with "CVR." Source Code review of the Hart Intercivic Rogers did not cite this supposed legal source until voting system the Sixth Contest. The California Source Code review does not distinguish a ballot image from a cast vote record or provide any direct support for Roger's contentions. Even if did, however, an analysis conducted more than seven years ago by a foreign Secretary of State is not controlling and would have minimal persuasive effect, especially if it directly contradicted the Texas Secretary of State's definition. Travis County has used the eSlate system since 2002 without incident. Jacobson's Expert Declaration Jacobson had not made his declaration or been designated as an expert at the time the most of Rogers' legal contentions were made, therefore Rogers' could not have reasonably relied on his opinions. Softech Int'l, 2009 WL 638203 at *5 (citing Armstrong v. Collin Co. Bail Bond Bd., 233 S.W.3d 57, 63 (Tex.App.-Dallas 2007, no pet.)) (holding that the trial court must examine the facts and circumstances as they existed when the pleadings were filed). In any event, he had zero qualifications in election technology and was not a legally competent or qualified source. A review ofthe totality oflegal authorities available to Rogers reveals that he did not conduct a reasonable inquiry before making his legal contention that a ballot image differs from a Cast Vote Record. TEX. Cry. PRAC. & REM. CODE 10.001. This contention was not warranted by existing law nor was there a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. TEX. Crv. PRAC. & REM. CODE 10.001(2). His failure to conduct such an inquiry is sanctionable. TEX. Cry. PRAC. & REM. CODE 10.001, 10.004. 5 2024  III. Rogers Failed to Make a Reasonable Inquiry into the Factual Allegations and Contentions Under § 10.001(3) Rogers also failed to make a reasonable inquiry concerning the factual allegations. The Texas Supreme Court held that the pleading party must meet the pleading-certification requirements separately for each allegation: "[ e]ach allegation and factual contention in a pleading or motion must have, or be likely to have, evidentiary support after a reasonable investigation." Low, 221 S.W.3d at 612. In the present case, the Court granted Mr. Casar's no-evidence summary judgment motion. Thus, the Court has already held that Ms. Pressley failed to present evidence raising a genuine issue of material fact. This ruling shows that Ms. Pressley failed to meet the § 10.001(3) evidentiary-support requirement. Even apart from the summary judgment, however, the evidence for Ms. Pressley's relevant allegations is non-existent. Many of Ms. Pressley's allegations are nothing more than unsupported suspicions. Suspicions are not evidence. Softech Int'l, Inc. v. Diversys Learning, Inc., No. 03-07-00687-CV, 2009 WL 638203, at *4 (Tex. App. Mar. 13,2009) (citing Continental Coffee Prod. Co. v. Cazarez, 937 S.W.2d 444,450 (Tex. 1996); Litton Indus. Prod., Inc. v. Gammage, 668 S.W.2d 319,324 (Tex. 1984)) (holding that "when circumstances surrounding an action are consistent with more than one inference and nothing shows that one inference is more probable than the other, the circumstances constitute mere suspicion, and not legally cognizable evidence.") In Softech, for example, the Austin Court of Appeals upheld an award of sanctions against an attorney who failed to perform a reasonable factual inquiry before filing suit. Id. In so holding, the Court chastised the Plaintiff, stating that: 6 2025  "[Plaintiff] confuses mere suspicion with circumstantial evidence. The circumstances .... could be sufficient to arouse suspicion, but do not rise to the level of circumstantial evidence. The civil practice and remedies code requires that potential plaintiffs conduct a "reasonable inquiry" to determine if there is any evidence to support their suspicions before filing suit ... [Plaintiff] skipped this crucial step." Id. at *5. Like the Plaintiff in So/tech, Ms. Pressley and her legal team failed to conduct a reasonable inquiry to determine if there was any evidence supporting their suspicions before filing suit. The chart below lays out some of the factual allegations asserted by Ms. Pressley and Mr. Rogers, and the evidence showing that a reasonable inquiry was not made into the accuracy of these facts before pleading them. Pressley Allegation Facts Establishing No Reasonable Inquiry Widespread and "illegal" voter In her deposition, Ms. Pressley admitted that she disenfranchisement occurred as a result of could not identify a single voter who was prevented a consolidation in voting locations, from voting based on the change in voting location. resulting in a "conservative count" of See Contestee's Amended Motion for Summary 1,108 disenfranchised voters. Original Judgment at Ex. 8, Pressley Deposition pp. 114-15. Contest at 13; Second Amended Contest 13; Third Amended Contest at 12- She also claimed that if a voter had to drive only 20 23; Fourth Amended Contest at 12-23; seconds to a new voting location, that 20-second Fifth Amended Contest at 12-29. drive would constitute voter disenfranchisement. See Contestee's Amended Motion for Summary Judgment at Ex. 8, Pressley Deposition pp. 100-101. That is nonsense, and Pressley has no legal support for that odd notion. Pressley or her counsel apparently realized that they had no factual support for this assertion, and dropped it from their Sixth Amended Contest. Travis County election officers "instructed This is a false and misleading assertion. As Ms. election officials" to not print zero tapes or DeBeauvoir explained in her deposition, results results tapes on election day. Original tapes were printed on election day. But, on election Contest at 14; Second Amended Contest day, results tapes are called by a different name - 11, 14; Third Amended Contest at "access codes" - not results tapes. See Contestee's 35; Fourth Amended Contest at 35; Fifth Amended Motion for Summary Judgment at Ex. 25, Amended Contest at 41; Sixth Amended DeBeauvoir's deposition p. 126-27. 7 2026 Contest at 8, 42, 43, and 64. By falsely claiming that the County did not print "results tapes" on election day, Pressley was attempting to mislead this Court into believing that the County somehow failed to comply with the Election Code. Similarly, Ms. Pressley's claim that no zero tapes were printed is false and misleading. Ms. Pressley testified that didn't know if zero tapes were printed, where they were printed, or when. See Pressley Deposition, p. 134. Thus, she had zero factual support for her statement when she made those allegations in the Contests. Furthermore, MS.DeBeauvoir explained in her deposition that zero tapes were printed before the election, as required by the Secretary of State. See Contestee's Amended Motion for Summary Judgment at Ex. 25, DeBeauvoir's deposition p. 125-26. In fact, Ms. Pressley and her legal team attached a Zero Tape to her Sixth Contest. See Exhibit C to Pressley's Sixth Contest. Travis County Director of Elections Ms. Pressley claims that Mr. Winn violated on Michael Winn committed a criminal Texas Election Code Section 33.061 1 by not violation by not allowing Pressley and her allowing her and her poll watchers to view the source and properties of the CVR files during the poll watchers to view the source, recount. See Sixth Contest, 93 and 94. Under properties, and copying of the CVR files. Election Code § 213.016, Ms. Pressley and her poll See Sixth Contest, 93 and 94 watchers were allowed to be present for the printing of the CVRs. However, nothing in the Election Code authorizes Ms. Pressley or her poll watchers to view the source and properties of the CVR files, such as dates of the CVR files and origination. The factual statement that Mr. Winn committed a criminal violation is false and unsupported. 1Texas Election Code Sec. 33.061, UNLAWFULLY OBSTRUCTING WATCHER, provides that "(a) A person commits an offense if the person serves in an official capacity at a location at which the presence of watchers is authorized and knowingly prevents a watcher from observing an activity the watcher is entitled to observe. (b) An offense under this section is a Class A misdemeanor." 8 2027  CONCLUSION Contestee Casar respectfully requests that this Court grant his motion for sanctions, award him the remedies provided by Texas Civil Practices and Remedies Code Chapter 10, and any additional relief to which he is entitled. Respectfully submitted, MCGINNIS, LOCHRIDGE AND KILGORE LLP 600 Congress, Suite 2100 Austin, TX 78701 (512) 495-6079 (512) 505-6379 - Facsimile Jessica Palvino - 24048780 jpalvino@mcginnislaw.com Charles Herring, Jr. State Bar No. 09534100 cherring@herring-irwin.com Lauren Ross State Bar No. 24092001 laurenbross@gmail.com HERRING & IRWIN, L.L.P. 1411 West Avenue, Suite 100 Austin, Texas 78701 (512) 320-0665 (512) 519-7580 FAX Kurt Kuhn - 24002433 KUli@KuhnHobbs.com KUHN HOBBS PLLC 3307 Northland Drive, # 310 Austin, Texas 78731 (512) 476-6000 (512) 476-6002 - Facsimile ATTORNEYS FOR CONTESTEE GREGORIO "GREG" CASAR 9 2028  CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document has been delivered to Mr. David A. Rogers, Law Office of David Rogers, 1201 Spyglass Drive, Suite #100, Austin, Texas 78746 and to Mr. Mark Cohen, 805 W. 10th Street, Suite 100, Austin, Tx. 78701 by electronic service through the electronic filing manager, or if counsel is not registered with the electronic filing manager, by email, on this 17th day of June, 2015. 10 2029  Filed In Tbe Dlstrict Court of Travis County, Texas APR 13 2015 At ?: CAUSE NO. D-1 15-000374 Velva L. Prlce;Olstrlf) Clerk LAURA PRESSLEY § IN THE DISTRICT COURT Contestant § § v. § OF TRAVIS COUNTY, TEXAS § GREGORIO "GREG" CASAR § Contestee § 20lst JUDICIAL DISTRICT On April 6, 2015, Contestant, Contestee and Travis County Clerk and Voter Registrar came before the Court. After considering Motion Protective Order and Motion for Third Party Discovery Control Plan, the Court finds that the County Clerk and Voter Registrar's Motion is meritorious in part. It is therefore ORDERED ; Travis County Clerk and Voter Registrar's Objections to Contestant's discovery requests are ,TAINED in part and Motion for a Third Party Control Plan is GRANTED in part as follows: 1. Travis County Clerk and Travis County Voter Re shall respond to requests for production by April20, 2015, as limited by this Court's ruling on below. 2. To the extent that voter information is available a publicly accessible website, Travis County shall provide to Contestant the appropriate specific address. To the extent that information is not publicly available, Travis County shall produce for inspection and copying voter registration data. This is subject to Contestant's disclosure of as addressed in paragraph 11. 3. To the extent that Travis County contends : data requested is proprietary or they are contractually prohibited from turning over that data, ' County is ordered to turn over the contracts providing the basis for such objections for and copying. Travis County shall not be required to produce access to proprietary or inspection of direct recording electronic voting machines, eStates, judge's booth controllers, or hardware used in conjunction with the eSlate system. 4. The County shall produce as soon as practicable Cast Vote Records for the December runoff for District 4 for inspection and copying. 5. The County shall produce all records showing machines were used in the November and December elections, including voting machines, le Ballot Boxes, Judge's Booth Controllers, Direct Record Electronic machines, Ballot Now or any other machines used to count votes or ballots in the November election and December 1 including but not limited to those reports produced for the Texas Secretary of State's office to reporting requirements and requests. 6. To the extent the County makes copies, it shall the copy costs at the rate of$ .50 per page. Case# 0-1-GN-15-000374 .... \\II\ It II\ I\ II\II \\\\1 \1\\I \Ill\ tilIIIII\1 \til llll 003978729 2 44 3 7. The County shall produce all documents required wi lin 15 days of the hearing on discovery, with the following exceptions: results of Logic and Ace : y Testing shall be produced as soon as practicable and the previously produced cast vote rec :rds shall be made available immediately on request. , 8. Travis County shall not be required to produce emai : , memos, correspondence, or text messages regarding communication regarding the election withou: specificity as to the email and basis for that request. Travis County, to the extent known. shall pr ; ide emaHs, memos, correspondence or text messages regarding the December 16, 2014 runoff elec: on as it relates to any known issues relating to any type of failure or operating issues as to the elec: onic voting machines. Travis County shall not be required to produce documents or communi' ations (including reports, emails, memos, correspondence, text messages. IM' s, video conferenci ! g or power points) regarding the election or eSlate system, its components and the related perso; I, access, location, security, programing, training, maintenance, operation, capacity or warranties.! 9. The County shall produce all incident logs and ot :er reports that show problems it is aware of with regard to the November election and runoff. ' 10. The scope of Discovery shall be limited to the A tin City Council District 4 December 2014 I • I runoff and subsequent recount, except as otheiWise ord : d. I 11. However, responses to those requests which seek i dividual voter information or documentation 1 regarding poll watchers shall be due no sooner than/ 10 days after the Contestant identifies the individuals, either in a separate document or in h : amended pleading to be filed in response to the Court's order on Contestee's special exceptions; , o the extent possible, Travis County should provide information on request regarding individual vq ers alleged to have voted illegally as soon as practicable due to the expedited nature of this matter. I 12. The Travis County Clerk shall make the Cast Records or "CVRs" for each vote cast in the December Runoff available to the parties for inspectio 1 no later than April 16, 2015. The parties and 1 the Travis County Clerk are ordered to establish a utually agreeable time for the inspection of records which is to take place at 5501 Airport Blvd, A :tin, TX 78751. 13. The Travis County Clerk and/or Travis County : oter Registrar may object to any remaining requests and provide statutory cites or other law as the : asis for those objections. I 14. IT IS SO ORDERED. 44 4  Page 46 iDepos Prepared for sherine.thomas@traviscountytx.gov 1 is that correct? 2 3 Q. Yes. Okay. It certainly isn't Exhibit 10 that 4 they see. 5 6 7 Q. Okay. They do see Exhibit 10 when they vote? ' 8 _L _l ___ : 9 10 11 12 13 Q. So it 14 15 16 Q. Okay. So if I when I go in and I decide who 17 to vote for and I mark who I vote for, then the computer 18 says, "This is who you vote for. Are you sure you want 19 to vote for them?" Is 20 e 21 Q. that correct? 22 23 Q. Okay. 24 25 http y.pdf-it.com/idepos/ 3 44 5  Page 47 iDepos Prepared for sherine.thomas@traviscountytx.gov 1 2 Q. Okay. Right. And if you don't change it, 3 that's who you vote for? 4 5 Q. Okay. But when you make your decision, you're 6 looking at Exhibit -- something like Exhibit 8 or 9, not 7 something like Exhibit 10? 8 9 MS. THOMAS: Objection, form. 10 C' .L '·_.) -i ·--'-· 11 12 Q. (BY MR. COHEN) Okay. 13 14 Q. Exhibit No. 8 or 9 is what shows up in your 15 face when you try to decide who you want to vote for, 16 correct? 17 18 Q. Yes. Okay. 19 20 Q. And so you don't see No. 10 when you're 21 deciding who to vote for. You see No. 10 to make sure 22 that who you marked on Exhibit 8 is what you really want 23 to do; is that correct? 24 MS. THOMAS: Objection -- 25 y.pdf-it.com/idepos/ 44 From: Mark Cohen To: Charles Herring; "Dan l\1ills"; Warren Vavra Cc: Andrew Williams; firm(mdarogerslaw.com; Sherine Thomas; Pat Kelly; "Lauren Ross"; "Kurt Kuhrl"; "Palvino, Jessica B." Subject: RE: Pressley - Casar Date: Friday, April 24, 2015 1:46:34 PM I will review the discovery docs and your agreement to stipulate to the ad111issibility of the county's production. If I think I need any other testimony from the county to respond to your motion I will ask you to stipulate to it and if you feel that you cannot do that I will do my job as an attorney and get the evidence I think I need in admissible form and assert my right to do so before a summary judgment is set or considered. That is the best I can do to accommodate everyone's goal to expedite a final decision while still doing so based on all the available evidence Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512-474-4424 512R472-5444 (f) Ma rk@cohen !ega lservices.com www. CohenLegal Services .com Everyone needs a break for peace of mind- especially those involved with the legal system. Rent our Villa with pool in Playa Del Carmen near the beach and town. Need a vacation? see http:Uvillaalegreplaya.com and http://www.steinhardt.us/villaalegre/ CONFIDENTIALITY NOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer. TREASURY DEPARTMEf\JT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. From: Charles Herring [mailto:cherring@herring-irwin.com] Sent: Friday, April 24, 2015 1:40PM To: Mark Cohen; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar 4 44 7 Whether you depose Ms. DeBeauvoir will be up to you, her, the County, and the Court. I was just pointing out that based on the only two reasons you have given thus far for deposing her, the deposition appears unnecessary. From: Mark Cohen [mailto:markCwcohenlegalservices.com] Sent: Friday, April 24, 2015 1:33 PM To: Charles Herring; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar Thank you for that stipulation I will prepare one for the response to the rnsj. That will shorten the deposition somewhat. However I have my reasons for wanting a deposition and it certainly is not to delay resolution of this matter past July 20. I am certain you would never let an opposing counsel tell you when you need to take a deposition either Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512•474a4424 512-472H5444 (f) Ma rk@cohen !ega lservices.com www.CohenLegalScryices.com Everyone needs a break for peace of mind- especially those involved with the legal system. Rent our Villa with pool in Playa Del Carmen near the beach and town. Need a vacation? see http:Uvillaalegreplaya.com and http://www.steinhardt.us/villaalegre/ COI\IFIDENTIALITY i'JOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer. TREASURY DEPAR.TMENT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. From: Charles Herring [mailto:cherring@herring-irwin.com] Sent: Friday, April 24, 2015 1:29PM 44 8 To: Mark Cohen; 'Dan Mills'; 'Warren. Vavra' Cc: 'Andrew Williams'; firm@darogerslaw.com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar We agree to stipulate in advance to the authenticity of any document that Travis County produces, f\]o deposition is necessary for that. Given that the Secretary of State, the County Clerk, the City Clerk, and the United States Election Commission all say exactly the same thing-that for electronic voting a Cast Vote Record is a ballot image--we can stipulate to that. Pressley filed for the recount on the last possible day, then filed suit the last possible day (1/30), and then failed to serve Casar until 2/10. The general election was November 4, six rnonths before the early May hearing date. Six months after the election is the opposite of "speed" for an election contest. In many instances, trial of an election contest has to be set within 5 days after the filing of an answer. Election Code sec. 232,012(d), --Chuck Herring From: Mark Cohen [mailto:mark@cohenlegalservices.com] Sent: Friday, April 24, 2015 1:02PM To: 'Dan Mills'; 'Warren. Vavra'; Charles Herring Cc: 'Andrew Williams'; firm@darogerslaw,com; 'Sherine Thomas'; 'Pat Kelly'; 'Lauren Ross'; 'Kurt Kuhn'; 'Palvino, Jessica B.' Subject: RE: Pressley- Casar Dear .Judge Mills: We will need to take the deposition of Travis County clerk before we can be prepared to respond We have third party discovery from them but we will need admissible testimony to get them admitted . we also need admissible testimony from them that the cvr's are the only document they have to meet the image of ballot cast requirement, Sheri, the county attorney in charge is out until next week. As I told Mr. Herring I will be contacting Sherri and him for a mutually convenient date to take the depositions and then we have of course the printing of the deposition and the time for the deponent(s) to read and sign and I will need time to prepare a response to the Motion. The phantom need asserted to move this case so fast that it prejudices my client's chance to fairly present the case is strongly objected to and it just unnecessarily creates additional grounds for necessitating an appeal which will delay the final decision even more, The pendency of this case is having no more of an effect on Mr. Casar that every litigant waiting for the procedures of a trial to work their way and there is no evidence that the city is being adversely effected in any way. Frankly Mr, Herring's tactical efforts to prevent Ms, Presley from having a fair opportunity to provide you with all of the admissible evidence just affirms how important it is that I have the time to provide it to you. Given the trial is not until July 20 Ms. Pressley will object to any shortening of her time to respond and notice of hearing that is less than the 21 days required by the rules and ignores our right to conduct reasonable discovery before being required to respond to a Motion for Summary .Judgrnent. Let's not sacrifice fairness for speed. I respectfully request that the Motion be set 21 days or more after I receive the deposition of the county clerks in form that is not subject to objection(it is signed or signature is waived or excused) necessary to have my evidence to meet the Summary Judgment allegations. As in most case some of the evidence if not most of it comes from other sources so it is not frivolous to take depositions to obtain it from the source that will satisfy the rules of evidence as to admissibility, My client is anxious to get the facts out and obtain a final 44 resolution as anyone since she is the one who is being deprived of an election with a true outcome. The city council and Mr. Casar are proceeding quite efficiently as if this case had never been filed Mark Cohen 805 W. 10th Street, Suite 100 Austin, Tx. 78701 512R474M4424 512a472M5444 (f) Ma rk@cohenlega lservices.com www.CohenLegalServices.com Everyone needs a break for peace of mind- especially those involved with the legal system. Rent our Villa with pool in Playa Del Carmen near the beach and town. Need a vacation? see http://villaalegreplaya.com and http:Uwww.steinhardt.us/vi!laalegre/ CONFIDENTIALITY NOTICE The information contained in this message may be privileged and confidential and protected from disclosure.lf the reader of this message is not theintended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination,distribution or copying of thiscommunication is strictly prohibited. If you have received this communicationin error, please notify us immediately by replying to the message and deleting it from your computer. TREASURY DEP.L\RTMENT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication {including any attachrnents) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any transaction or matter addressed herein. 4500  EXHIBIT Page 1 (Pages 1-4) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 1 Page 3 NO. D-1-GN-15-000374 I FOR THE CONTESTEE, GREGORIO "GREG" CASAR: 2 LAURA PRESSLEY IN THE DISTRICT COURT 2 CHARLES HERRING, JR. Contestant 3 HERRING & IRWIN, L.L.P. 3 1411 West Avenue 4 vs. TRAVIS COUNTY, TEXAS Suite 100 5 4 Austin, Texas 78701 6 512.320.0665/512.519.7580 (fax) GREGORIO 11 GREG 11 CASAR 5 cherring@herring-irwin.com 7 Contestee 201ST JUDICIAL DISTRICT 6 -and- 8 ****************************************** 7 JESSICA PALVINO 9 ORAL DEPOSITION OF MCGINNIS LOCHRIDGE 8 600 Congress Avenue, Suite 2100 10 DANA DEBEAUVOIR Austill, Texas 78701 78701 II MAY 11, 2015 9 512.495.6079/512.505.6379 (fax) 12 jpalvino@mcginnislaw.com 10 13 11 14 ORAL DEPOSITION OF DANA DEBEAUVOIR, produced as 12 ALSO PRESENT: 15 a witness at the instance of the Contestee GREGORIO 13 Laura Pressley, Ph.D. 16 11 GREG 11 CASAR, and duly sworn, was taken in the Abbe Waldman 14 17 above-styled and numbered cause on May 11, 2015, from 15 18 9:44a.m. to 12:24 p.m., before KATHERINE A. BUCHHORN, 16 19 Certified Shorthand Reporter in and for the State of 17 18 20 Texas, reported by machine shorthand, at the offices of 19 21 County Clerk 1 s Courthouse Conference Room, Room 222, 20 22 Heman Marion Sweatt Courthouse, 1000 Guadalupe, Austin, 21 22 23 Texas 78701, pursuant to the Texas Rules of Civil 23 24 Procedure and the provisions stated on the record or 24 25 attached hereto. 25 Page 2 Page 4 I APPEARANCES 1 INDEX 2 3 FOR THE CONTESTANT: 2 PAGE 4 MARKCOHEN 3 Appearances. . . . . . . . . . . . . . . . . 2 THE LAW OFFICES OF MARK COHEN & ROSE COHEN 4 Exhibits . . . . . . . . . . . . . . . . . . 5 5 805 W. I Oth Street 5 Requested Infom1ation. . . . . . . . . . . . 7 Suite 100 6 Austin, Texas 78701 6 Stipulations .......... , . . . . . 8 512.474.4424/512.472.5444 (fax) 7 7 mark@cohen1ega1services. com DANA DEBEAUVOIR 8 8 9 FOR THE DEPONENT, DANA DEBEAUVOIR: 9 Examination by Mr. Herring ........ . 9 10 SHERINE E. THOMAS DIRECTOR LITIGATION DIVISION-TRAVIS COUNTY Examination by Mr. Cohen ......... . 40 11 314W.11thStreet 10 Further Examination by Mr. Herring .... . 128 Austin, Texas 78701 11 12 512.854.9513/512.854.4808 (fax) Reporter's Certificate. . . . . . . . . . . 132 sherine. thomas@traviscountytx.gov 13 12 -and- 13 Changes and Signature........... . 135 14 14 ANDREW M. WILLIAMS 15 15 ASSISTANT COUNTY ATTORNEY -TRAVIS COUNTY 314 W. 11th Street, Suite 500 16 16 Austin, Texas 7870 I 17 512.854.9513/512.854.9472 (fax) 18 17 andrew. williams@traviscountytx. gov 19 18 19 20 20 21 21 22 22 23 23 24 24 25 25 Sympson R'eporting·""' 51'2:374':0596 · 4543  Page 2 (Pages 5-8) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 5 Page 7 I EXHIBITS 2 NO. DESCRIPTION PAGE I DOCUMENTS/INFORMATION REQUESTED 3 I 9 (OR MAY BE REQUESTED) Travis County Clerk Dana DeBeauvoir 4 2 Curriculum Vitae 5 2 -- NO. DESCRIPTION PAGE ***NOT INTRODUCED *** 3 6 3 . 21 1 . ................... 74 7 Election Advisory No. 2012-03 4 Names of tally administrators 8 4 22 Electronic Voting System Procedures 5 2 .................... 75 9 Name of tally administrator making 5 . 23 6 specific entry 10 Glossary of Key Election Terminology- 2007 7 3 .................... 87 II Names of people more familiar with 6. 51 12 eSiate Voting System- About the eSlate 8 Audit Log Voting System 9 13 10 7 44 14 By-Mail Ballot example 11 15 8 45 12 By-Mail Ballot example 16 13 9 -- 14 17 ***MARKED- NOT INTRODUCED or PROVIDED TO REPORTER*** 15 18 16 10 . 42 17 19 Votes by Precinct- JBCs Election Day GR!4, Precinct 133C 18 20 19 II 119 21 District 4 Runoff Cast Vote Record 20 Recount files Meta-Data- Date Modified 21 22 22 12 . 56 23 Audit Log- Official, Travis County 23 December 16 2014 Joint Special Runoff 24 24 Election 25 25 Page 6 Page 8 I EXHIBITS I STIPULATIONS 2 NO. DESCRIPTION PAGE 3 13 54 2 GR14 City of Austin Manual Recount of 3 The attorneys for all parties present stipulate and 4 District4 5 14 -- 4 agree to the following items: ***NOT MARKED*** 5 6 15 -- 6 The deposition of DANA DEBEAUVOIR is taken pursuant 7 ***NOT MARKED*** to Notice; 7 8 16 .................... 129 Precinct 133 Voters- December 16, 2014 8 9 Voting location: Memorial United 9 That all objections will be made pursuant to the Methodist Church 10 10 Texas Rules of Civil Procedure; 17 130 II II Precinct 142 Voters- December 16, 2014 Voting location: Travis County Airp01t 12 That the original transcript will be submitted for 12 Offices 13 18 130 13 signature to the witness' attorney, SHERINE E. THOMAS, Precinct 209 Voters- December 16, 2014 14 and that the witness or the witness' attorney will 14 Voting location: Grant AME Worship Center 15 return the signed transcript to Sympson Reporting within 15 16 20 days of the date the transcript is provided to the 19 . 130 16 Precinct 258 Voters- December 16, 2014 17 witness' attorney. If not returned, the witness may be Voting location: Walnut Creek Elementary 18 deemed to have waived the right to make the changes, and 17 20 130 19 an unsigned copy may be used as though signed. 18 Precinct 260 Voters- December 16,2014 20 Voting location: Lanier High School 19 21 20 22 21 22 23 23 24 24 25 25 Sympsun·Reporting'- 512':374.0596' 4544  Page 3 (Pages 9-12) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 9 Page 11 I PROCEEDINGS A. It would be thousands. It would be thousands 2 THE REPORTER: Are there any special 2 of candidates. 3 stipulations today or just by the Rules? 3 Q. You have great experience in elections. 4 MR. COHEN: Just regular stuff 4 A. Yeah. 5 (Witness swom.) 5 Q. All right. And you've also won, I see from 6 DANA DEBEAUVOIR, 6 your resume, awards from various bodies, local and 7 having been first duly swom, testified as follows: 7 national, for your work in elections. 8 EXAMINATION 8 A. Yes. 9 BY MR. HERRING: 9 Q. Is that a fair statement? 10 Q. Would you state your name for the record? 10 A. Yeah. II A. My name is Dana DeBeauvoir. II Q. And I need you to answer out loud -- 12 Q. And Ms. DeBeauvoir, you are the county clerk of 12 A. Yes. 13 Travis County, right? 13 Q. --so we can make sure we have it. 14 A. Travis County Clerk. 14 Let me just see. One of them was the 15 (DeBeauvoir Exhibit No. I marked) 15 National Association of County Recorders, Election 16 Q. (BY MR. HERRING) And let me hand you a copy of 16 Officials and Clerks. 17 what I have marked as Exhibit 1, which I believe is your 17 A. Yeah. 18 resume. 18 Q. And I can't pronounce the acronym, so I'll just 19 A. (Moved head up and down.) 19 leave it at that. And you won, in 2009, Public Official 20 Q. And is that what that is? 20 ofthe Year. 21 A. Yes, sir. 21 A. I did win that incredible award. 22 Q. And that's current? 22 Q. All right. And then also, the same year, the 23 A. Yes, it is. 23 National Association of Election Officials awarded you 24 Q. Okay. And I just want to ask you -- it's a 24 the 2009 Minute Man Award for developing effective 25 lengthy resume. I just want to ask you a few points 25 security practices that were effective, inexpensive, and Page 10 Page 12 I from it. Your educational background, just very 1 easy for election officials to adopt; is that correct? 2 briefly, college and your master's. 2 A. Yes, I did. 3 A. Right. I have a college degree from the 3 Q. And then in 2005, you were the national 4 University of Texas at Arlington. It's a dual in 4 recipient of the Election Center's Best Practices Award 5 sociology/social work; and I have a maste1·'s degree from 5 for your work in risk analysis to implement security 6 the LBJ School of Public Affairs, 1981. 6 measures for electronic voting systems; is that right? 7 Q. And you've been a county clerk since when? 7 A. Yes, I did. 8 A. I was elected in '86 and took office Janua1-y 1, 8 Q. Let's see. You also serve as-- on the board, 9 1987. 9 the Standards Board, it looks like, of the United States 10 Q. Right. And do you have any idea how many 10 Election Assistance Commission. II elections you have presided over since then? II A. I am a current member, yes. 12 A. We keep meaning to add it up, but a couple of 12 Recently appointed. 13 h und •·ed, at least. 13 Q. And how long have you been on that? 14 Q. And I assume it would be-- I mean, you would 14 A. I was with the original group; so since 15 have city, county, state, federal, school district, bond 15 two-thousand-- late 2003. 16 issues, referendum. Referenda, sometimes. Have I left 16 Q. Okay. And that came into existence because of 17 anything out? 17 the-- 18 A. Pl"imaries. 18 A. The beginnings of-- 19 Q. And primaries. And runoffs. 19 Q. --the Help America Vote-- 20 A. Runoffs; special, uh-huh. 20 A. --the Help America Vote Act. 21 Q. So I mean, if you-- and if you added up all 21 Q. -- which was enacted 2002; is that right? 22 the candidates -- 22 A. It was written in 2002, it started in 2003, and 23 A.Oh. 23 the act was fully implemented as of January 1, 2006. 24 Q. -- on the ballots, for all those years, it 24 Q. And you have also been an international 25 would be thousands. 25 election observer and monitor in a series of elections Sympson"Reportin·g- 512:3'74'.0596 ·· 4545  Page 4 (Pages 13-16) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 13 Page 15 1 around the world, the most famous, I suppose, being the I A. Okay. 2 South African election that ended Apartheid in 1994, was 2 Q. -- the chief election officer in the State of 3 it? 3 Texas, under the Election Code? 4 A. Apl'il of 1994. 4 A. The Secretary of State provides guidance and 5 Q. And you have done similar functions in Bosnia 5 instructions on all election law and procedure, and they 6 and Kosovo? 6 are the ones we turn to for any instructions; so they 7 A. Bangladesh. Yes, I've done several 7 are the chief officer for elections for the state. 8 assignments. 8 Q. And that would be true not just for you, as the 9 Q. Okay. You've also-- am I correct, you-- I 9 chief election administrator for Travis County, but for 10 guess you still do -- you serve as chair of the 10 election administrators across the state of Texas? 11 Elections Legislative Committee for the County and II A. All county clerks, election administrators, and 12 District Clerk's Association? 12 anybody else who conducts elections. 13 A. Yes, I do. 13 Q. And going back to the certification process, in 14 Q. And that's been true since 1995? 14 general, what does the Secretary of State do to certify 15 A. Yes. Twenty years. 15 election systems? 16 Q. Wow. All right. And then you've also been a 16 A. They're first going to follow the federal 17 member of the Election Center's Postal Task Force for 17 standards that are established by the Standards Board of 18 By-Mail Voting, since 2005. 18 the EAC. 19 A. Right. I'm -- I'm no longer cunent on that, 19 Q. That's -- the EAC is Elections -- 20 but I just left that one. 20 A. Elections Assistance Commission. 21 Q. Okay. And you made a variety of presentations 21 THE REPORTER: One at a time, please. 22 on developing security procedures for a DRE environment 22 THE WITNESS: Sorry. 23 and that sort of thing, across Texas and elsewhere, 23 A. Elections Assistance Commission. 24 right? 24 Q. We just have the to be careful not to talk over 25 A. Yes. We've-- we've-- it's sot·t of become our 25 each other. Page 14 Page 16 1 pet project, over the years, to teach people about how A. Right. 2 to improve security with DRE systems. 2 Q. You will know my questions before I finish 3 Q. Very good. Since you've been in office, what 3 them, but --okay. It's the way we always have it 4 types of voting systems have you worked with? 4 happen in depositions, so don't worry about it, but... 5 A. I've done paper ballot elections. I inherited 5 So the EAC is the -- that's the 6 a punch card voting system from the County, when I was 6 commission -- can I help you? 7 first elected. I operated that fm· three years. Then 7 A. I'm looking for a tissue. 8 we had-- I purchased an Optical Scan Centml Count 8 Q. Oh. 9 system. We operated that until appt·oximately 2000. And 9 (Discussion off the record) 10 then in 2000, we brought in Hart eState. 10 A. All right. So what does the Secretary of State II Q. And you brought in the Hart eSiate system after II do, in tet·ms of certified election equipment? 12 the Secretary of State had certified that? 12 Q. (BYMR. HERRING) Yes. 13 A. Yes. 13 A. All right. First of all, they're going to 14 Q. And explain, briefly, the certification 14 follow all the federal standards, so they're going to 15 process; in other words, what the Secretary of State 15 look at what the system has been through, in terms of 16 does, relative to the certification -- by the way, the 16 all the federal qualifications, testing, all of that. 17 Secretary of State is the chief election officer, under 17 And then they are going to put the system through an 18 the Election Code for the Texas; is that correct? 18 additionallayet· of state testing, which involves 19 A. It is. 19 calling in a set of experts; and they have a cadre of 20 MR. COHEN: Objection; form. 20 folks that they pull from. Those folks will then look 21 A. That is correct. 21 at the software coding, and then they'll put it through 22 MR. HERRING: Sorry? 22 a sel'ies of tests fot· the system itself, and then they 23 MR. COHEN: Form objection. 23 will put the vendor that's selling it through a series 24 Q. (BY MR. HERRING) Let me --let me ask that 24 of question and answer. 25 again, then. Who is-- 25 And after that piece is finished, then the Sympson· Reporting'- 5'1'2'.37Ll': 0596 454  Page 5 (Pages 17-20) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 17 Page 19 I panel of-- it's usually two computer science-type m· I said, many, many elections? 2 software enginee•·-type folks, and then a third person 2 A. Many elections. 3 who is knowledgeable about Texas election law. It's-- 3 Q. And are you comfortable and confident in its 4 it's a panel. And it could be more than that, but 4 security, based on that experience? 5 it's a-- it's a minimum ofth•·ee people. And then they 5 A. The way we run it, yes. 6 will go over all theil· notes and they will give the 6 Q. And its efficiency? 7 system a rating and they will decide if it needs to have 7 A. Yes. 8 anything upgraded, repail·ed, fixed, added, anything like 8 Q. Overall, for that time period, has it been a 9 that. And then depending on theil· final answer, the 9 good system? 10 SeCJ"etary reviews their final repmi, accepts or rejects 10 A. Yes. Yes. II their •·ecommendation, and then lets the company know II Q. Do you know how many other jurisdictions use 12 whether they're certified in Texas. 12 the eSlate, in Texas? 13 Q. And so that would be true, say, for the eSlate 13 A. A bunch. 14 system, from the beginning -- from the beginning, in 14 Q. I think I read, over 100 counties? 15 each version of the eSlate system? 15 A. That would be right. 16 A. Yes. There-- the•·e have been some 16 MR. COHEN: Objection; form. 17 recognitions that upgrades, over the yem·s, don't 17 Q. (BY MR. HERRING) Does that sound right? 18 necessarily have to start at zero and •·epeat the whole 18 A. A bunch of counties. 19 process; but, yes, you -- you have to step through 19 Q. Maybe-- 20 everything, for every new system. 20 A. One hund1·ed sounds reasonable. 21 Q. So if we looked at the eState system, there 21 Q. You're aware that one of the issues that 22 would be some of the earlier versions that may not be 22 Ms. Pressley has raised in this election contest is, she 23 certified now; but the current versions all would have 23 has questioned whether the CVR, the cast vote record, is 24 been through this, or the predecessors would have 24 a ballot image, for purposes of the Election Code and 25 been-- 25 the regulations that the Secretary of State has issued. Page 18 Page 20 I A. That's COJTect. 1 Are you aware that she has raised that -- that issue? 2 Q. --through this? 2 A. I'm aware of that, yes. 3 Okay. Who made the choice, in Travis 3 Q. And as far as you are concerned, based on your 4 County, to go to the eSlate system? Who-- who made the 4 understanding from the Secretary of State, is the CVR, 5 decision? 5 the cast vote record, a ballot image or not, for 6 A. Ultimately, it was Travis County Commissioners 6 electronic voting systems? 7 Court. A group ofapp•·oximately 45 Travis County 7 A. It's the same thing. Yes, it is the image. 8 citizens from all walks of life, under my direction, 8 Q. It is a ballot image? 9 studied that issue for at least two years. Worked very 9 A. It's a ballot image. I0 hard, and they arrived at the conclusion, after doing 10 Q. And have you-- before Ms. Pressley came up II research beforehand, deciding what we needed. And then II with her different interpretation, had you ever heard 12 they compa1·ed that needs assessment to what was 12 anyone say it was not a ballot image? 13 available in the ma1·ket; reviewed the available systems; 13 A. No. No. 14 judged that this-- that the Hart eState was the best of 14 Q. So is that an interpretation that is 15 the available systems, and then made that •·ecommendation 15 consistent, in your experience, in your dealings, with 16 to the CommissionCJ"s Court, along with me. And 16 the Secretary of State? 17 Commissionus Court accepted that recommendation and 17 MR. COHEN: Objection; form. 18 decided to pui'Chase it. 18 Q. (BY MR. HERRING) Is it or is it not consistent 19 Q. And that was roughly 2000,2001, that time 19 with what the Secretary of State has instructed your 20 frame? 20 office that a CVR is a ballot image? 21 A. Roughly. It might have even been late '99. 21 A. It's consistent with the Secretary of State, 22 Q. All right. And then that's what we've used, 22 the CVR and ballot image are the same thing. 23 eSiate, since then? 23 Q. And is that true or is that not true of the 24 A. Since then. 24 United States Election Assistance Commission? 25 Q. So this system has been through, as you've 25 A. Their terms are also the same. It's consistent Sympson Reporting 4547  Page 6 (Pages 21-24) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 21 Page 23 I with the Election Assistance Commission, that ballot I document issued to the county election officers and 2 image and CVR are the same thing. 2 other political subdivision officials, by Keith Ingram, 3 Q. Do you have any question in your mind, but that 3 Director of Elections? 4 ballot image equals CVR, in electronic voting systems? 4 A. Yes, it is. 5 A. No, I do not have any question. 5 Q. And what's the date on that? 6 Q. And has the Secretary of State, indeed, handed 6 A. April 1st, 2014. 7 out, distributed, various advisories, over the years, 7 Q. And let me ask you to tum to numbered page 12. 8 that say the same thing? 8 They're numbered in the lower right-hand comers. And 9 A. Many advisories. 9 does that have the same defmitions we just went through 10 (DeBeauvoir Exhibit No. 3 marked) 10 in the election advisory, for "ballot image" and "cast II Q. Let me show you what has been marked as Exhibit II vote record"? 12 3 and ask you if that is, indeed, the type of election 12 A. "Ballot image" and "cast vote record" are the 13 advisory you received from the Texas Secretary of State? 13 same. 14 A. It is the copy of the advisot·y I t·eeeived, yes, 14 (DeBeauvoir Exhibit No. 5 marked) 15 it is. 15 Q. (BY MR. HERRING) Let me show you what's been 16 Q. And this one is -- is -- I guess they come 16 marked as Exhibit 5 and ask you if that is a document 17 out -- they're numbered; is that right? 17 from the U.S. Election Assistance Commission, again, a 18 A. That's conect, they are. Yes. Advisory. 18 Glossary ofKey Election Terminology? 19 Q. This is one is numbered Election Advisory 19 A. Yes, it is. 20 No. 2012-03. 20 Q. And does that also have a definition of" cast 21 A. Uh-huh. 21 vote record"? 22 Q. 2012-03. 22 A. Yes, it does. 23 A. Correct. 23 Q. And that's on page 10 of this exhibit; is that 24 Q. And I'll ask you to tum to, oh, about four 24 right? 25 pages from the back of that document. And it's a 25 A. Yes, it is. Page 22 Page 24 I glossary that begins with "Audit Logs." Do you see I Q. And what is the definition of"cast vote 2 that? 2 record"? 3 A. Yeah. 3 A. "Cast vote t·ecord. Permanent record of all 4 Q. And you see the second term that's defined in 4 votes produced by a single votet· whethet· in electt·onic, 5 that-- in that glossary, is the term "Ballot Image"? 5 papet·, ot· othet· fot·m. Also refened to as ballot image 6 A. Yes. 6 when used to refer to electJ"Onic ballots." 7 Q. Would you read the definition of that? 7 Q. And is that consistent with the definitions 8 A. "Ballot Image. Electronically pt·oduced t·ecord 8 that you've had all along, since you've had the eSlate 9 of all votes cast by a single voter." 9 system, from Secretary of State? 10 Q. And then the next definition or defined term or 10 A. Yes, it is. II phrase is "Cast Vote Record." Would you read that II Q. Is that a standard meaning of the term, that 12 definition? 12 particular term, across the United States? 13 A. "Cast Vote Rec01·d. Permanent record of all 13 A. It is the standard meaning of the term. 14 votes pi"Oduced by a single voter whether in electronic 14 Q. And, indeed, that's issued by the-- well, let 15 or paper copy form. Used for counting votes. Also 15 me ask. 16 referred to as ballot image when used to refer to 16 You mentioned you are on the Board of 17 electronic ballots." 17 Standards for the commission. Is that a term that you 18 Q. And is this definition in this advisory, this 18 and your board have worked with, through the years, 19 2012 advisory, consistent with what you've known and 19 that-- 20 what you've been informed by the Secretary of State 20 A. Yes, it is. 21 since you started using the eSlate system? 21 Q. -- that definition? 22 A. Yes, it is. 22 A. Since we developed the first standards, yes. 23 (DeBeauvoir Exhibit No. 4 marked) 23 Q. Ms. Pressley has asked the Court, in one or 24 Q. (BY MR. HERRING) Let me show you what's been 24 more of her pleadings, to have an election with paper 25 marked as Exhibit 4 and ask you if that's another 25 ballots. How long has it been sinee we had a completely 512'.374.0596 ·· · 4548  Page 7 (Pages 25-28) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 25 Page 27 I paper ballot election in Travis County? I maintained on a list such that as you hand out a dollar 2 A. I don't remember exactly, but I'm thinking 2 bill to a voter, the serial numbet· for that dollar bill 3 sometime in the '80s. A very small election, and it 3 gets crossed off the list as having been used. All 4 would have been-- I'm not sure, but I think it would 4 right? 5 have been side by side with some larger election, a 5 That set·ial number is nevet· connected to 6 little add-on piece. 6 the voter or the voter's name. All right? But the 7 Q. So in the larger election, the general process 7 serial number gets crossed off, and it has to go 8 would have been -- 8 through-- this process has to go through a system 9 A. Regular procedure: punch card or optical scan. 9 whereby we account for the fact that we've used one 10 Q. In those days? 10 ballot, so we've-- we've used it, out of the inventory, 11 A. Yeah. And then it would have been some buddied II and we have to manage to retl"ieve, from the central 12 extra that needing something, that was perhaps added on 12 inventory, a replacement ballot for that, because the 13 late. Could have been a MUD. 13 next voter needs to have that ballot available; bring it 14 Q. Suppose that the Court said, "Well, you're 14 back out to the vote center; resupply it into the 15 going to have to have a complete paper ballot system." 15 inventory and account for its serial number, both 16 What would that require your office, you, Travis County, 16 including into the inventory at the location, and its 17 the other jurisdictions, to do? 17 subtmction from the inventory at whatever central 18 A. Well, it would be huge. We are completely-- 18 county is. 19 we have no infrastructure any longer to do a paper 19 And the closer you get to election day, 20 ballot election. We don't have even ballot boxes 20 there would be a reduction of any kind of central 21 anymore. So we would have to start over from scratch 21 inventory so that-- such that, on election day, 22 for everything we would need. 22 evet-ything would be decentralized out into the vote 23 Travis County is no longer the 200,000 23 centet·s, and you would have very little central 24 registered voters from back in the 80's that it once 24 inventory left. It would all be distributed. 25 was. We are now over 600,000 registered voters. And we 25 Q. So you have a security issue with just the Page 26 Page 28 I typically now use vote centet·s. So tt·ying to conduct a I number of paper ballots that have to be distributed-- 2 paper ballot election in our new wol"ld of convenience 2 A. Yes. 3 voting calls for levels of secul"ity for those papet· 3 Q. --I assume. And do you have a logistics issue 4 ballots, for inventory contJ"Ol, and fot· the balancing 4 with how many ballots are printed for the election and 5 that you're reqnit·ed to do every day. And to maintain 5 how many go to different voting locations? 6 those stocks, I'm -- the levels of secul"ity needed fot· 6 A. Yes, we do have a logistics issue. We have a 7 all those key steps are mind-boggling. 7 policy in Tt·avis County, and have for many, many, many 8 Q. So it would be expensive to convert? 8 years, that we don't under-order our ballots, based on 9 A. Vet·y expensive, to keep the papet· levels high 9 projections of turnout. Many counties do that to save 10 enough and, mostly, the security levels there to pt"Otect 10 money. We don't do that here. We order 100 percent of II that papet· inventot·y. II ballots. That actually translates into ordering a 12 Q. Would you need a new training system for 12 little more than 100 percent so that you can make sure 13 everyone? 13 that your inventory at one location accounts for the 14 A. Absolutely. All-new training systems. All new 14 fact that somebody from that particular area might go 15 tmining manuals; all new packets, what we call the 15 vote someplace else; and so you have a suitable 16 "kits," that go out into the individual vote centers; 16 inventory at all of your locations, for wherever that 17 pt·epat·ation matel"ials to conduct the election. 17 voter might turn up. 18 Q. Ballot boxes? 18 Q. And I seem to recall, from the paper ballot 19 A. Yeah, ballot-- cet·tainly, ballot boxes, yeah. 19 days, you also had issues of high turnout in -- 20 Multiple ballot boxes. 20 unanticipated high turnout -- 21 Q. What are some of the security issues with paper 21 A. Correct. 22 ballots that you don't have with an electronic voting 22 Q. --in one precinct and not in another and 23 system? 23 having to then transfer paper ballots, with the 24 A. The-- it's like handling dollat· bills. And 24 security -- 25 the serial numbet· that's on each dollar bill has to be 25 A. Correct. Sympso·n· Reporting ""' 5·12':374:0596' 454  Page 8 (Pages 29-32) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 29 Page 31 I Q. -- transfer, as well. I bids or financial numbers, for replacing the Hart eSiate 2 A. Right. And for security, we use law 2 system, completely, with a different system? 3 enforcement. That's constables and sheriffs. So a 3 A. Yes. Yes. 4 third party that is accountable to the public. 4 Q. And what's the ballpark range of what that 5 Q. And I recall from -- from those days, that we 5 would cost? 6 used to have a problem of potential voter fraud with-- 6 A. We have an estimate that if we were to-- 7 because so many people have to handle the ballots -- 7 making some assumptions, if we were to replace the 8 with the very simple over-voting technique -- 8 existing system we have with something similat·, say, 9 A. Uh-huh. 9 another Hat"t system that had some similar qualities, the 10 Q. -- which is, "I don't want Candidate A to win, 10 cost of that system would be approximately 14 million. 11 so I'll -- his name has been filled in. I'll put -- 11 Q. $14 million? 12 I'll fill in Candidate B's name." And then you've got 12 A. $14 million. 13 an over-vote and an invalid vote. Isn't that what used 13 Q. Okay. Another argument that Ms. Pressley has 14 to be-- 14 raised, as to why she thinks the election outcome was 15 A. Paper ballots have their problems, that they 15 not valid, is the changes between the general election 16 are susceptible to handling errors. 16 and the runoff election day, of some voter locations. 17 Q. The way our electronic voting system works in 17 A. Yeah. 18 Travis County, is it safer and more secure against voter 18 Q. Are you familiar with her making that argument? 19 fraud or election fraud, than a paper ballot system? 19 A. lam. 20 A. In my opinion, the way we run it here, it is 20 Q. And to begin with, let me go back to the point 21 far superior to paper ballots. It's far -- far more 21 you mentioned previously; and that is, we use voting 22 accurate and secure. 22 centers in Travis County, correct? 23 Q. Are you able to estimate the potential cost -- 23 A. Conect. 24 if, say, in this case, Ms. Pressley says, "Well, let's 24 Q. And I think in Ms. Pressley's deposition, we 25 have another election for District 4, and let's have 25 had a question as to whether, for the runoff election Page 30 Page 32 1 only paper ballots," do you have any kind of way to give 1 for city council, for District 4, there were either 135 2 me a rough estimate of what the cost would be? 2 or 136 voting centers; but approximately 135 or 136 3 A. I'm --I don't think I do, right this minute, 3 voting centers were available to anyone who wanted to 4 no. It's-- it's-- it would be-- it would be a 4 vote in those runoff elections, correct? 5 completely different wol"ld that we would have to start 5 A. Con·ect. 6 from zero to build. 6 Q. And so ifl were a resident of District 4 and I 7 Q. And would it say time to even develop such a 7 wanted to take off my lunch hour-- I work downtown and 8 system? 8 want to take off my lunch hour and go to a voting 9 A. Yes, it would. 9 center, I can go anyplace in the county and vote at one 10 Q. Are we talking a week or are we talking months? 1o of those centers, correct? 11 A. Oh, months. We would have to go thJ"Ough 11 A. Any place -- 12 pm·chasing requit·ements, in ordet· to put out bids to buy 12 MR. COHEN: Objection form. 13 evet·ything that we would need. We would have to t·edo 13 A. --that's convenient for you, you can vote. 14 all of the election management softwat·e project -- 14 Q. (BY MR. HERRING) Suppose I were a voter in 15 pi"Oducts that we have. I-- I-- and at this point, I 15 District 4 and I was wanting to take off and vote when I 16 can't even think tht·ongh the list of things that we 16 was downtown working, at lunch. Where could I vote? 17 would have to t·edo. 17 A. Thet·e at·e a lot of places to vote. I would 18 Q. Now, there has been some discussion of 18 need to have a list in front of me; but, typically, 19 upgrading or changing from eSlate, which we've had for, 19 we've got City Hall. There are some places aJ"Ound the 20 I guess, 13, 14 years, whatever the number is, to a new 20 university. There are lots of schools around, that have 21 system. And that's, I assume, an ongoing evaluation 21 locations. I mean, thet·e are multiple places. 22 that all election administrators make. Have you looked 22 Q. In fact, ifl wanted to drive, I could vote at 23 at that possibility, down the line? 23 any one of the 136 -- 24 A. Yes, we have. 24 A. You know-- 25 Q. And have you seen any -- any cost estimates or 25 Q. -- locations. True? Sympson· Reporting'- 4550  Page 9 (Pages 33-36) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 33 Page 35 1 A. -- that's con·ect. 1 A. Uh-huh. That's correct. 2 MR. COHEN: Objection; fonn. 2 Q. So you had a vast reduction in the number of 3 Q. (BY MR. HERRING) Could I vote at any one of 3 candidates on the ballot? 4 the 136locations, ifl wanted to take off and drive at 4 MS. THOMAS: Objection; form. 5 lunch? 5 Q. (BY MR. HERRING) Is that right? 6 A. You absolutely could vote anywhere you wanted. 6 A. We had very much fewer candidates on the 7 Q. Okay. And ifl were taking a child to school 7 ballot. It was a much, much shorter ballot. 8 and the school was outside of District 4, could I vote 8 Q. And how does --how did you go about deciding 9 in a voting center near a school? 9 which locations to make that-- that more cost-efficient 10 A. You can stop-- drop the child off, stop, go in I0 footprint, which locations to consolidate or -- or 11 and vote. Absolutely. I1 close? 12 Q. All right. So in no sense was any resident of 12 A. Right. This was the first time we evet· did it, 13 District 4 limited to voting at the locations within 13 because this was the fii'St time we ever had to deal with 14 District 4? 14 this election. So we used a variety of sources to 15 MR. COHEN: Objection; fom1. 15 advise us how to do this. 16 A. No one was limited to a single voting place, 16 Certainly, we consulted with the City. 17 undet· a vote center scenario. 17 They were our main source to advise us which way to go. 18 Q. (BY MR. HERRING) Now, explain-- explain 18 We did look at turnout patterns. We talked to people in 19 why -- strike that. 19 the community. We made our best judgment. 20 Is it -- is it common practice, between a 20 Q. So you received input from as many sources 21 general election, whether it's a primary election and a 21 as you could? 22 runoff or some other runoff-- of course, it's the first 22 A. As possible. 23 time we've had the runoff for city council this way-- 23 Q. And if Ms. Pressley had wanted to come to you 24 A. Right. 24 and say, "No, I don't think that you should close a 25 Q. --but is it common practice, between the first 25 particular voting location," would you have listened to Page 34 Page 36 I election day and the runoff election day, to change I her? 2 locations for voters, to consolidate or to modify? 2 A. Absolutely. 3 A. It is common practice to reduce the footpl'int 3 Q. Did she do that? 4 of the election, fot· a runoff election. 4 A. No. 5 Q. Why? 5 Q. And it's also true, isn't it, that the city 6 A. It's to save money. Typically, the turnout is 6 council has a role in approving the election locations 7 so much lowet· fot· mnoff elections, that most elections, 7 for the runoff? Is that right? 8 most jul'isdictions, cut back, for the mnoff. 8 A. Yes, they do. 9 Q. And going back to our listing elections 9 Q. And did they have a public notice and posting 10 earlier, for this -- in this instance, the November 4th 10 and hearing, to allow citizen input on where the voting 11 election, of course, had that entire ballot -- 11 locations would be? 12 A. Yeah. 12 A. Yes. In addition to the opinions we recruited 13 Q. -- coJTect? 13 and asked fot·, the City has a public process to ask for 14 A. Correct. 14 opinion. 15 Q. So city, county, state, federal. We had a 15 Q. Okay. And Ms. Pressley has testified that she 16 ballot, constitutional -- 16 did not, and her campaign did not, appear before the 17 A. Constitutional amendment, uh-huh. 17 city council to protest or question or challenge or make 18 Q. --amendment. School district? 18 suggestion or provide any input whatsoever to the 19 A. Uh-huh. 19 council, concerning the voting locations for the runoff. 20 Q. And then the runoff election, as I recall, had 20 Is that your understanding? 21 only two categories. It would have had city council, 21 A. I'm not aware of any additional input. 22 mayor, and then it would have had the school district 22 Q. Okay. Do you also consolidate voting 23 runoff, as I -- 23 locations, change voting locations, say, in a party 24 A. Uh-huh. Uh-huh. 24 primary, between the primary election day and the runoff 25 Q. -- recall, coiTect? 25 day? Sympson· 512:37'4:05§6· 4551  Page 10 (Pages 37-40) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 37 Page 39 I A. Pretty commonly, yes. I and said, you know, "I really want this candidate to 2 Q. Same process, generally? 2 win"-- in any of these elections-- "and so we ought to 3 A. Generally, yes. 3 change voting locations," what would you have done? 4 Q. And is that true for election jurisdictions 4 A. I would have been insulted and told them that 5 throughout Texas? 5 that is a completely inappropriate role for the county 6 A. Yes, it is. 6 clerk to play. 7 Q. And do they all follow that same, generally, 7 Q. Based on -- strike that. 8 standard process? 8 You've had quite a few interactions with 9 A. Yes, they do. 9 Ms. Pressley, concerning the election, correct? 10 Q. Now, in Ms. Pressley's deposition, I asked her 10 A. I have. II about a couple of locations. The Highland Mall location II Q. She filed a series of complaints against you 12 and then the Airport Boulevard location. And it turned 12 and your office, with the Secretmy of State, correct? 13 out, it would -- according to Google Maps, it would take 13 A. Correct. 14 about three minutes to drive from the one location to 14 Q. The Secretmy of State rejected those 15 the other. 15 complaints; is that correct? 16 MR. COHEN: Objection; form. 16 A. The Secretary did. 17 Q. (BY MR. HERRING) And Ms. Pressley said that 17 Q. Do you have -- after you have been through this 18 that's voter disenfranchisement, to have to drive three 18 whole process, viewed her complaints, do you have any 19 minutes. 19 question in your mind, but that the election results 20 MR. COHEN: Objection; form. 20 certified for the runoff was the true outcome of the 21 Q. (BY MR. HERIUNG) In your-- in your opinion, 21 election? Do you have any doubt about that? 22 is that -- is that disenfranchisement, to drive for 22 A. No question at all. We are very clear of the 23 three minutes? 23 outcome. It's been manually recounted. There's no 24 MR. COHEN: Objection; form. 24 question. 25 A. None of the places that we used for the -- for 25 Q. And Mr. Casar received 1200 and any one more Page 38 Page 40 I the runoff election, are inconvenient, nor represented I votes than Ms. Pressley? 2 any particular obstacle or barrier for voters. We 2 A. Correct. 3 believe everything was fair and equitable, in the 3 Q. Thank you for your patience. 4 distribution of those vote centers for the runoff 4 MR. HERRING: I'll pass the witness. 5 election. 5 We'll play musical chairs here, and Mr. Cohen will ask 6 MS. THOMAS: Objection; forn1. 6 some questions. 7 Q. (BY MR. HERRING) Since we've got some-- a 7 THE WITNESS: Okay. 8 series of objections, why don't we ask you a related 8 Do you want to take a break? 9 question. 9 MS. THOMAS: I was going to say, how long 10 Do you have a11 opinion concerning whether 10 have we been going? II the voting locations used in the runoff, were fair and II (Simultaneous speaking- unreportable) 12 reasonable? 12 MR. HERRING: Let's take a little break. 13 A. Do I have an opinion? Yes, I have an opinion. 13 MS. THOMAS: Can we take a break, just 14 Q. And what's the opinion? 14 because it's a good stopping point? 15 A. Yes. The opinion is-- 15 MR. HERRING: Yeah. That's great. 16 MR. COHEN: Objection; fmm. 16 THE WITNESS: Okay. All right. 17 A. --they were all very much reasonable, 17 (Recess 10:23 a.m.- 10:38 a.m.) 18 ADA-compliant, fully accessible, well-lmown, well-used, 18 (DeBeauvoir Exhibit Nos. 6- 12 marked) 19 and fully advertised; so they were fair and equitable. 19 EXAMINATION 20 Q. (BY MR. HERRING) Did you receive any input 20 BY MR. COHEN: 21 from anyone, to the effect of, "Well, we ought to change 21 Q. Good morning, Ms. DeBeauvoir. 22 some voter locations in District 4 to effect the outcome 22 A. Good morning, again. 23 of the election"? 23 Q. We have known each other-- 24 A. I received nothing. No input. 24 A. Many years. 25 Q. And would you have-- if somebody came to you 25 Q. -- since you started --the first time you ran Sympson- Reporting·""' 51"2':37'4·:0596· 4552  Page 11 (Pages 41-44) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 41 Page 43 1 for election. I think -- 1 twice, right? They show their ID, and if they have a 2 A. Yeah. 2 proper-- well, if they don't have a voter's 3 Q. --I was a big supporter of you then-- 3 registration certificate, they show some ID and sign 4 A. You are. 4 next to that, correct? 5 Q. -- and I have been ever since. 5 A. Correct. 6 A. I know. And I'm a fan of yours. 6 Q. And then they go to the next person-- at least 7 Q. That's good. Okay. So I know that you-- what 7 I do in my poll, because I don't have a voter ID card 8 you want to do is make sure that you have the true 8 when I vote; and then I sign for a number, right, that 9 results of every election that you're in charge of, 9 I'm going to feed into the machine? 10 correct? 10 A. More or less correct. That's okay. II A. That's correct. II Q. Yeah. And when I do that, what does the 12 Q. And that you want to be able to verifY the 12 machine show me, in order for me to decide who I'm going 13 results of the election if someone challenges that. 13 to vote for? It doesn't show me that, correct? It 14 A. Correct. 14 doesn't show me Exhibit I 0? 15 Q. Okay. And so we are here because someone 15 A. Okay. Let-- 16 challenged them-- 16 Q. Is that correct? 17 A. Uh-huh. 17 A. Your question is confusing to me. 18 Q. --and we just-- we're not sure that we had a 18 Q. Okay. Let me help --then tell me what-- 19 system in place that really actually verified it. Okay? 19 A. Olmy. 20 A. I understand. 20 Q. -- so I can get you to understand. 21 Q. All right. So I'm going to show you-- and you 21 A. All right. You-- you were talking about the 22 have said that, in your opinion, a cast vote record is 22 sign-in process, so-- 23 the same as an image of a ballot, correct? 23 Q. Yeah. 24 A. Yes-- 24 A. -- you only sign once -- 25 Q. And is that-- 25 Q. Yeah. Okay. Page 42 Page 44 I A. --it is. 1 A. -- and then you go over to the station that 2 Q. -- because what everybody else told you, or do 2 issues you your access code. 3 you actually believe that? 3 Q. Yeah. 4 A. I actually believe that. 4 A. It's a four-digit code. Okay. The access code 5 Q. And you believe that's the best way to 5 is what you're going to take over to the voting booth-- 6 double-check the computer's compilation of the votes on 6 Q. Right. 7 election day? 7 A. --enter the access code, and the entire ballot 8 A. I believe it's the only way to know, yes. 8 is going to come up for you. 9 Q. The only way. Okay. So I'm going to show you 9 Q. Right. 10 what's marked as Exhibit 10. It's a little bit out of I0 A. Okay? So I'm just walk-- walking through. 11 order. II Okay. So the ballot-- you're going to 12 MR. COHEN: Would you give Mr. Herring a 12 wot·k through the ballot, marking the ballot. 13 copy of his -- 13 At the end of yom· ballot, there is -- 14 MS. PRESSLEY: Okay. Is this it? 14 Q. Let me stop you there, because I want to go 15 MR. COHEN: Yeah. It's the cast vote 15 through the process -- 16 record. 16 A. Okay. 17 MS. PRESSLEY: Okay. 17 Q. -- a little bit slower than that. 18 Q. (BY MR. COHEN) What is that, Exhibit I 0? 18 So I'm looking at a ballot. I'm not 19 A. It looks like an election day report. 19 looking at that, at Exhibit 10, am I? 20 Q. Is that a cast vote record? 20 A. No. 21 A. Yes, I believe it is. This is -- 21 Q. Okay. Am I looking more like-- especially in 22 Q. So on election day -- let's go through this. I 22 this election, like Exhibit 7 -- tell me what Exhibit 7 23 know we all know this, but -- 23 is. 24 A. Uh-huh. Okay. 24 MR. HERRING: Can I have a copy of 25 Q. Okay. So the voter comes in. They sign in 25 Exhibit 7? Sympson Reporting- 51'2:374'.0596'' 4553  Page 12 (Pages 45-48) Pressley vs. Casar Dana Debeauvoir- May 11, 2015 Page 45 Page 47 1 MS. THOMAS: Yes. Yes. I'm sorry. I opportunity to change it. 2 A. This is what a by-mail ballot would look like. 2 Q. Okay. Right. And if you don't change it, 3 Q. (BY MR. COHEN) Okay. That's-- 3 that's who you vote for? 4 A. This is sort of like an optical scan ballot. 4 A. Correct. 5 Q. Okay. And that says-- it says "Sample Ballot" 5 Q. Okay. But when you make your decision, you're 6 on the side of it. 6 looking at Exhibit-- something like Exhibit 8 or 9, not 7 A. Okay. This is what a by-mail ballot looks 7 something like Exhibit 10? 8 like. 8 A. No. 9 Q. Okay. 9 MS. THOMAS: Objection, fonn. 10 A. Our sample ballots don't look like this. I 10 A. No. This is yom· final chance. It'll look 11 realize it says that on the side. II like this. 12 Q. Yeah. 12 Q. (BY MR. COHEN) Okay. 13 A. This is what a by-mail ballot looks like. It 13 A. It's a-- it looks like the summa1·y screen. 14 looks like an optical scan ballot. 14 Q. Exhibit No.8 or 9 is what shows up in your 15 Q. Okay. And then I'll show you, marked 15 face when you try to decide who you want to vote for, 16 Exhibit 8, and what is that? I thought that was 16 correct? 17 what a-- 17 A. You voting. The process, yes. 18 A. Same thing. 18 Q. Yes. Okay. 19 Q. That's what a mail-in ballot looks like. You 19 A. Con·eet. 20 said that -- is that correct? 20 Q. And so you don't see No. 10 when you're 21 A. By mail, yes, uh-huh. 21 deciding who to vote for. You see No. 10 to make sure 22 Q. Okay. All right. And then when a person goes 22 that who you marked on Exhibit 8 is what you really want 23 to vote at the machine, No. 7 and No. 8 are-- it may be 23 to do; is that correct? 24 a little bit different, but that's what they look at, in 24 MS. THOMAS: Objection-- 25 deciding whether -- what -- who they want to vote for; 25 A. No. Page 46 Page 48 1 is that correct? 1 MS. THOMAS: -- form. 2 A. Similar. 2 Hang --just -- let me just get the 3 Q. Yes. Okay. It certainly isn't Exhibit 10 that 3 objection in, and then you can answer. 4 they see. 4 Q. (BY MR. COHEN) You still have to answer the 5 A. That's not correct. That's what I keep trying 5 question. You said "No"? 6 to tell you. 6 A. Oh, excnse me. No. It's-- it's not. This is 7 Q. Okay. They do see Exhibit 10 when they vote? 7 a part of the final decision process, and you still have 8 A. llh-huh. llh-huh. What will happen is, is that 8 the chance to change it, and it does look exactly like 9 after you've voted, the last screen that you will see is 9 the summary sCJ"een. 10 what's called a "summary screen." And this information 10 Q. Okay. So when you see that, it's asking you if II is contained on the summary sCJ"een, so it looks almost II you want to change -- 12 exactly like this. 12 A. It is asking yon-- 13 Q. So it-- 13 Q. --what you did on-- 14 A. This part is going to be missing; but what 14 THE REPORTER: Wait. One at a time. 15 you'll see on the summary, is this. 15 Q. (BY MR. COHEN) Hold on. It-- when you see 16 Q. Okay. So if!-- when I go in and I decide who 16 Exhibit 10, it's asking you if you want to change what 17 to vote for and I mark who I vote for, then the computer 17 you marked on Exhibit 7 or 8? 18 says, "This is who you vote for. Are you sure you want 18 A. Correct. 19 to vote for them?" Is-- 19 Q. Okay. And you're saying-- it's your opinion, 20 A. Yes. 20 I guess -- or the electronic system tells you that the 21 Q. -- that correct? 21 ballot is-- the last chance, this No. 10, your last 22 A. Yes. 22 chance to change, is -- is what you considered to be the 23 Q. Okay. 23 ballot -- the image of the ballot? 24 A. Do you want-- this-- it will say, "Here are 24 A. Correct. 25 yonr selections," and it will give you a last 25 Q. Okay. And then Exhibit 10 is somehow preserved Sympson