AUSTIN (KXAN) – Nearly two months ago, the Texas Secretary of State’s Office typed a letter, asking for a criminal investigation into the Travis County Clerk’s Office. The letter named three Republican poll watchers who claimed the clerk’s office kept them from doing their jobs.

The poll watchers accused the clerk’s office of committing crimes against the Texas Election Code in the ballot counting from the July 14, 2020 runoff election. One poll watcher said he wasn’t allowed into the counting room at all.

Another two poll watchers said they were sequestered in to a “media room” at the clerk’s office, unable to hear and see ballot tabulations and counts the night the polls closed in July.  

“After review of the submitted documentation, we believe the information regarding the offenses warrants a submission for criminal investigation,” Keith Ingram, the Elections Director at the SOS, wrote in a Sept. 2 referral letter.

State law allows poll watchers to observe every step of the electoral process. The only restriction is watching a voter cast a ballot, according to the Secretary of State’s Office.  

“I was in this glass box I could not hear any conversation. people were doing something, which I could not identify what. All video screens of their information were out of my sight,” John Wood told KXAN. Wood is one of the three complainants listed in the Secretary of State’s criminal investigation request.

Wood said he and his colleagues were not able to get inside the counting room at the clerk’s office and were unable to verify ballot tabulations and counts, which is part of the watchers’ official duties.

“So, I was absolutely useless,” Wood said. “There was nothing I could tell about the process; it was opaque to me, a watcher, and I found very discouraging.”

“I’m saying we were completely obstructed, yes,” Foster told KXAN.

“The complainant alleges that poll watchers were prevented from completing their poll watching duties and were prevented from reviewing central counting station election returns and records,” Ingram wrote in the referral letter to the AG.

Both Wood and Foster said their group called the Secretary of State’s Office on July 14 to complain about what they believed was the clerk’s office obstructing their duties. The SOS suggested they file a complaint, but could not force the clerk’s office to allow them into the counting room, according to Wood and Foster.

“We should be able to just go look and see what people are doing, and we are not able to do that at present, and there is no consequence to the election division for obstructing us, and they know it,” Foster said.

The Texas Election Code doesn’t specify where exactly a poll watcher can stand, but the statute does state, “A watcher is entitled to sit or stand conveniently near the election officers conducting the observed activity,” according to Sec. 33.056 of the code.

“A watcher is entitled to sit or stand near enough to the member of a counting team 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,” the statute continues. “A watcher is entitled to inspect the returns and other records prepared by the election officers at the location at which the watcher is serving.”

Wood and Foster said the problem was, they couldn’t see or hear any of that information, because they were sequestered inside the media room and could only see the clerk’s office workers conducting their business from a distance.

The Texas Election Code makes obstructing a poll watcher a Class A Misdemeanor, punishable by a year in jail and or a fine of $4,000.

“This was a complaint that said a poll watcher had not been allowed into the poll watching area, so I sent a photograph of the poll watcher standing in the middle of the poll watcher area over to the Secretary of State’s Office, and for some reason they felt it necessary to send that photo of the poll watcher in the poll watcher area on to the A.G.’s office,” Travis County Clerk Dana DeBeauvoir told KXAN investigator Jody Barr in a Nov. 2 interview.

DeBeauvoir declined to provide the photographic evidence to KXAN, “Not until I’m free from the AG’s criminal investigation,” the clerk said. The clerk said she had not been contacted by the AG’s office regarding the complaint.

The watcher the clerk claimed to have photographed is a man named Lynn Foster, according to the SOS letter. We could not reach Foster for this investigation. However, the complaint continued to detail other allegations of obstruction concerning Wood and Cornelia Foster.

DeBeauvoir did not deny corralling the poll watchers in her building’s media room.

“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 poll watchers can watch the electronic part of the processing and tallying, and also the scanning part which feeds the paper trails and by-mail ballots through scanners.”

DeBeauvoir said she also installed a public address system in the media room so watchers can hear what’s going on in the counting room next door.

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

“Could there be any element of this complaint that has merit and substance that you may not be aware of,” Barr asked DeBeauvoir. “I am fully aware of everything that went on regarding them and there is no substance to their complaint, and if you were in the room, you would say the same thing.”

We asked DeBeauvoir to tour and photograph the media room. The clerk said she’d have to ask permission from the Secretary of State and her attorney.

We found the media room later that day. Its door is located along a public corridor leading to a public restroom between the Travis County vehicle registration office and the elections office. We saw a group of poll watchers standing inside the room talking to DeBeauvoir. An unidentified staffer identified the room as the “media room,” but said we could not come inside. That staffer then closed the door.

Another reason DeBeauvoir gave for sequestering the poll watchers in a separate room was her concerns regarding the pandemic. The room contains multiple signs telling poll watchers masks are mandatory, but the clerk said she wants to protect her staff.

“They can’t go and stand on top of the people doing processing, because it’s COVID, and we don’t let them breathe on top of people, and you can see everything from inside the room,” DeBeauvoir told KXAN.

DeBeauvoir went on to characterize the SOS criminal investigation referral as “routine” business and nothing she appeared worried about, “When I questioned the Secretary of State’s Office about why they felt it was necessary to forward it, they said they just felt like it was ordinary, routine to forward it to the attorney general so I don’t think that they thought—especially since they had photographs of the poll watchers standing in the middle of the room—that there was any problem.”

“You know they weren’t forwarding something that needed attention, they were just doing a routine forward,” the clerk said.

Pressley v. Casar

This isn’t the first time a poll watcher accused the Travis County Clerk’s Office of obstructing poll watchers. In 2014, Laura Pressley lost her bid for Austin City Council’s District 4 seat to current councilman Greg Casar. Casar won by 1,291 votes.

Pressley, among other allegations, claimed poll watchers were obstructed from “observing the retrieval, sorting, and copying” of election results in that race. Pressley filed complaints with the SOS over what she believed were violations against her poll watchers, but the SOS “rejected Pressley’s interpretation of what her poll watchers could observe,” according to a January 2019 Texas Supreme Court ruling in the case.

The trial court determined Pressley’s arguments in the case were frivolous and had “no legal or factual basis” and fined her $40,000 and her attorney was fined another $50,000 in court-ordered sanctions.

However, the Texas Supreme Court later ruled the trial court “abused its discretion” in its findings against Pressley and her attorney, striking every dollar of sanctions against the pair.

“The election activities that Pressley complains about could create a perception of impropriety, and such impropriety might make the election results unknowable, which is precisely her argument. Her evidence might not have been strong enough to win on the merits, but she had at least some evidence and legal basis for her claims. For that reason, the trial court abused its discretion in sanctioning Pressley and Rogers for making these non-frivolous arguments, and the court of appeals erred in affirming the sanctions,” according to the Jan. 25, 2019 supreme court opinion.

“The Supreme Court of Texas found that there may have been some evidence that what was alleged in this case in 2020 actually had happened in 2014. Do you dispute that,” Barr asked DeBeauvoir, “No, that’s when we built the room and designed it the way it is today. It was in response to those requests for the additional ability to see what was going on. That’s why the room is built the way it is today.”

“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 the clerk.

“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 told KXAN.

Wood and Foster said their goal in filing the complaint is simple: ”Free and open elections,” Wood said.

“The real consequence of not having proper supervision from the outside in all phases of the election is it the right person may not get elected. The people’s choice may not be made. We may not be living in a free country,” Wood said.

“And that’s why I do it. That’s why I watch.”