Lawsuit planned over Travis County Clerk’s poll watcher ‘sequester’ during ballot counting

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AUSTIN (KXAN) – As vote counting winds down in Travis County, the Republican Party is working to have the courts hold Clerk Dana DeBeauvoir responsible for “knowingly” obstructing multiple poll watchers during the November election.

The Republicans and Democrats are allowed to appoint poll watchers to monitor ballot tabulation and counting inside the county’s Central Counting Station. But poll watchers claim DeBeauvoir sequestered them inside of a “media room” where they’re unable to hear or see elections staffers counting ballots.

The room has windows that looks into the counting station, but the door to the station is locked. Watchers told KXAN they’re not able to see the tabulation machines and cannot hear vote totals called out by elections officials and have no way to verify the county’s following the law in the counting process.

This photograph shows the inside of the poll watcher room at the Travis County Clerk’s Office on Nov. 3, 2020. It shows an unidentified poll watcher trying to look through a window into the Central Counting Station to see ballot tabulation and counting in the November 2020 presidential election. (Provided by Source)

The party filed a request with the Texas Supreme Court over the weekend, asking the court to force DeBeauvoir’s “compliance with the law,” the mandamus action stated.

The filing was intended to prevent DeBeauvoir “to not sequester duly appointed poll watchers in a locked room separate and apart from the central counting station when it is open such that they cannot observe any activity conducted at that location as required by law,” Austin attorney Eric Opiela wrote in the mandamus filing.

Texas law allows poll watchers to “observe any activity conducted at the location,” and a watcher “is entitled to sit or stand conveniently near the election officers conducting the observed activity.” The law also allows a watcher to “sit or stand near enough” to the election officer “who is announcing the votes to verify that the ballots are read correctly or to a member who is tallying the votes to verify that they are tallied correctly.”

Both the Texas Secretary of State and the Texas Attorney General’s Office have clarified whether an elections office can sequester poll watchers.

In March, the SOS got a complaint from Gillespie County poll watchers that Elections Administrator Anissa Herrera had built a “holding pen” for poll watchers inside the county’s counting station. Watchers were not allowed to move outside of the pen and reported to the SOS they could not see or hear the ballot counting and tabulation.

This March 3, 2020 email from the Secretary of State reminded the Gillespie County Elections Administrator of a criminal penalty for obstructing poll watchers after watchers complained to the SOS about being roped off into a “holding pen” during the March 2020 primary election.

“I was told that you all had sectioned off part of the CCS for poll watchers, and that the presiding judge is prohibiting the poll watchers from getting close enough to the equipment to observe the counting/tabulating activity,” SOS Legal Director Christina Adkins wrote in a March 3, 2020 email.

“Poll watchers do have a right to watch these activities and prohibiting them from doing so is a criminal act,” Adkins continued.

On Nov. 8, the attorney general filed a brief in the Travis County mandamus further explaining that sequestering poll watchers in DeBeauvoir’s “media room” would constitute a crime under the Texas Election Code.

“Local election officials have a duty not to ‘knowingly prevent a watcher from observing an activity the watcher is entitled to observe,’” Texas Solicitor General Kyle Hawkins wrote in the Nov. 8 filing.

The attorney general wrote the brief in support of the Republican Party’s effort to have the Supreme Court order DeBeauvoir to not sequester poll watchers. The court denied the petition for Writ of Mandamus with Justices Eva Guzman, Jeff Boyd, John Devine and Jimmy Blacklock dissenting.

The order stated that Guzman “would grant temporary relief” to allow the Republican Party to take their arguments to a district court.

“We’re doing it now,” Opiela told KXAN when reached by phone Monday morning. Opiela said he’s working to file a lawsuit in Travis County to have the court decide whether DeBeauvoir can continue sequestering poll watchers.

Clerk Defends ‘Media Room’

Travis County Clerk Dana DeBeauvoir did not respond to a request for comment for this report. DeBeauvoir did agree to an interview on Nov. 2 where she defended the use of the “media room” to house poll watchers, keeping them away from her elections staffers.

“We have a whole room that’s been specifically built in the middle of our counting station. It’s got double doors on one side and windows on the other two sides of the doors so that they can, poll watchers can watch the electronic part of the processing and tallying and also the scanning part which beats the paper trails and by mail ballots through scanners,” DeBeauvoir told KXAN investigator Jody Barr.

“It’s a premier spot, it’s an excellent facility for the poll watchers, probably the best in the whole state,” DeBeauvoir said.

Last weekend’s mandamus filing in the Supreme Court contained affidavits from three separate poll watchers, each claiming they could not hear or see what they needed to see inside the counting station in order to perform their legislatively-approved services.

Travis County Clerk Dana DeBeauvoir called the “media room” she built a “premier facility” for poll watchers in Texas. That media room is the subject of what the TX Secretary of State wants the Texas Attorney General’s Office to open a criminal investigation into.

“As a Poll Watcher, I did not have sufficient access to verify the integrity of the process,” Susanna L. Gallun wrote in her affidavit.

As a poll watcher, I am especially concerned about the right hand corner of the room in the back and the PC screens we could not see. I do not understand why the vendors are feeding ballots into the machine and handling ballots. I do not understand why poll watchers are physically separated from the area of the tabulation machines and PCs that adjudicate ballots. I am concerned that the sound is also not good enough for poll watchers to really hear conversations in the room. We had limited access to the opening of several ballot box seals as well due to the desks and PC’s blocking our view of the room,” Gallun continued.

In the Nov. 2 interview, DeBeauvoir also scoffed at allegations from poll watchers about being unable to hear conversations from the other side of the glass. The clerk said she had a PA system “piped into” the media room so poll watchers could hear conversations inside the counting station.

One poll watcher said the clerk’s office was using a speaker on a cell phone application to allow poll watchers to hear what was being said inside the counting station. That watcher also alleged there was no sound being broadcast from inside the central counting station for “two to three hours” the morning of Nov. 2.

This photograph from inside the Travis County Clerk’s “media room” shows the view of what a poll watcher could see into the Central Counting Station.

“I was unable to enter the room, see the displays on the ballot counting machines, or hear conversations between workers in the room. There was a microphone and speaker set up, but conversations were drowned out by machine noise,” Gary McMillian wrote in his affidavit.

DeBeauvoir told KXAN she decided to build the media room in response to a January 2019 Supreme Court order which addressed complaints related to poll watcher obstruction inside the Travis County Clerk’s Office dating back to 2014.

“That’s when we built the room and designed it the way it is today, it was in response to those requests or the additional ability to see what was going on. That’s why the room is built the way it is today,” DeBeauvoir told KXAN on Nov. 2.

“Are these poll watchers able to see all around, everywhere a ballot may be handled, the tabulation may be under way, they may be able to see this and listen to what’s going on with that,” Barr asked DeBeauvoir in the Nov. 2 interview, “Yes, everything from when they’re brought in, checked off the list, you can see the information on the wall that says what’s come in, what hasn’t. The part where it’s opened up, the part where it’s run through the scanners and then the part it’s air gapped, the second part where it’s run through the accumulators and the results are produced. They can see that entire process,” DeBeauvoir said.

The Republican Party’s lawsuit was not filed at the time of this report.

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