Court refuses delay for Will Hurd-Gina Ortiz Jones election; recount possible

AUSTIN — Despite a setback Tuesday, Democrat Gina Ortiz Jones isn't giving up her push to close the 1,150-vote gap between herself and Republican Incumbent Will Hurd in Texas' most competitive congressional district.

Ortiz Jones asked a Bexar County judge Tuesday to compel election officials in the county to release a list of voters whose ballots need correcting and to give those voters 48 more hours to fix their ballots. The judge denied her request.

Ortiz Jones has been sparring with county officials since Election Day, when a tight race resulted in a lead of less than 700 votes for Hurd. Since then, she has worked to close the gap by ensuring all ballots have been counted and corrected, or "cured."

“This is about making sure every vote is counted," Ortiz Jones said at a press conference Tuesday in San Antonio, after asking the judge to approve her motion. "Just because you voted provisionally does not mean you should be denied the ability to have your ballot cured and counted.”

Chaotic election night

The effort started after a chaotic election night resulted in a 689-vote lead for Hurd.

Ortiz Jones conceded to Hurd on Election Day, after early results showed Hurd with a sizable lead and several news outlets projected that the Republican would win.  

But the race continued to tighten as more precincts reported results. Ortiz Jones appeared to capture the lead in the middle of the night — a jump that the Texas Secretary of State's office later attributed to a reporting mistake in Medina County — but Hurd was back on top the following morning. 

Given the slim margin and fluctuating results, news outlets took back their projections and Ortiz Jones withdrew her concession and asked that ballots not included in the election night results be reviewed.

On Wednesday, after the Bexar County judge denied her motion, Ortiz Jones returned her focus to Medina County. She accused officials of not following appropriate protocol when it came to clearing the area's voting machines.

"Clearly, something is amiss in Medina County and due diligence must be done to make sure their vote count is correct," Ortiz Jones said. "Whether it’s Medina County’s early voting totals being called into question or the machines being zeroed out before officials could verify results, there are serious and concerning questions about this election. These questions need to be answered before anyone moves forward."

More:Too close to call? Texas Republican Will Hurd leads challenger by less than 700 votes

Counting provisional ballots in Bexar County

Tuesday, Nov. 13, was the deadline for counties to accept mail-in ballots, military ballots and provisional ballots. 

While they waited for the ballots to be submitted, members of Ortiz Jones' campaign set out to collect lists of provisional ballots in each of the district's 29 counties. The lists would allow her team to contact those voters whose eligibility was in question when they cast their vote and encourage them to come forward to correct their ballots, allowing them to be counted in the final tally.

Voters can request provisional ballots if they go to their polling place and cannot prove their eligibility at the time. This can happen if a voter's name does not show up on the list of registered voters in the precinct or if a voter does not have the appropriate form of identification. 

At that point, a voter can ask for a provisional ballot. 

The voter is then required to visit the local voter registrar's office within six days of the election with an acceptable form of ID. The registrar's office researches the claim and passes the information on to the local ballot board, which makes the final decision on whether the ballot must be counted.

Ortiz Jones submitted public records requests asking for the lists of provisional ballots from each of the 29 counties in the district and most have complied, including El Paso County, she said. 

Elections administrator denies request

But Bexar County Elections Administrator Jacquelyn Callenen denied her request, even after a county judge ruled the list had to be turned over, Ortiz Jones said. 

More:Democrat Gina Ortiz Jones visits El Paso ahead of Nov. 6 general election

Callanen told the San Antonio Express-News that she cannot release the list until the board tasked with reviewing provisional and mail-in ballots completes its work. 

“They’re beating me up,” Callanen told the Express-News, after Jones staffers implored her to release the list at a Commissioners Court meeting. “They’re asking me to break the law, and I won’t do it.”

Ortiz Jones said Bexar County Judge Rosie Alvarado ruled Monday night to force the county to turn over its list of voters, which the county had not done as of Tuesday morning. 

More:Hurd-Ortiz Jones race was Texas' most expensive House contest in 3rd quarter

Her campaign filed another complaint asking the court to compel Callanen to turn over the list and issue a 48-hour extension to the deadline for correcting, or "curing," provisional ballots, which is the end of the day on Tuesday.

"In light of the delay in providing information that should be available to the voters, we think it is only appropriate to afford the voters the additional time to cure their ballot," Ortiz Jones said Tuesday.

Justin Hollis, Hurd's campaign manager, called the effort "desperate" and criticized Ortiz Jones for trying to "force county election officials to violate Texas law."

"In contrast, our campaign wants every vote to be counted with a clear, uniform standard in accordance with the law," Hollis said in a statement. "If they are, the final vote tally will reflect the will of the voters and re-elect Will Hurd to Congress."

Recount possible in Hurd, Ortiz Jones election

Once the final results are determined, either candidate could ask for a recount. 

For a recount to take place, Texas law says the difference in votes between both candidates has to total less than 10 percent of the vote leader's total support. Although the final number isn't clear, the magic number appears to be about 10,000 votes, based on the count with all precincts reporting last week.

Hurd's lead has grown from 689 to 1,150 as officials continue to review ballots that have been cast and receive ballots through the mail. That is still within the margin for a recount.

A recount would cost $60 for each precinct that uses regular paper ballots and $100 for precincts that use electronic voting systems — a bill the requesting campaign would have to pay. If the outcome of the election changes after the recount, the money would be returned.

If elected, Hurd would be the first person in more than two decades to serve three consecutive terms in the swing district, which has changed party hands five times since it was drawn.

More:2018 Texas primary runoff election: Gina Ortiz Jones will face Will Hurd for District 23

Madlin Mekelburg is a reporter with the USA Today Network Austin Bureau; she may be reached at 512-479-6606; mmekelburg@elpasotimes.com; @madlinbmek on Twitter.