Erin Elizabeth Lunceford v. Tamika Craft

Opinion issued February 3, 2026.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00921-CV
———————————
ERIN ELIZABETH LUNCEFORD, Appellant
V.
TAMIKA CRAFT, Appellee

On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2022-79328

CONCURRING OPINION

Harris County’s administration of the 2022 general election was not the

pinnacle of excellence. Some polling places opened late, which led a court to order

they all stay open late. Some didn’t have enough ballots. Thousands of people, upon
being told of delays due to these problems, left polling places and may have given

up on voting altogether.

And those were just the problems apparent on election day. Subsequent

litigation showed well over a thousand individuals were allowed to vote despite

either not completing statutorily required forms or filling out residence forms in a

manner not consistent with being a Harris County resident.

Were the election a blowout, this may have gone unnoticed. But it was close.

Out of 1,107,390 votes cast, two countywide elections were decided by fewer than

a thousand votes, and five other races were decided by fewer than five thousand.

Twenty-one losing candidates filed election challenges. These cases were

assigned to the same visiting judge, the Honorable David Peeples. Judge Peeples

granted summary judgment for the contestees in fifteen cases, four contestants

dismissed their cases after discovery, and two cases went to bench trials.

Both of those trials—this case, and Jones v. Pierce—were appealed and I was

on the panel for both.1 I join the opinion of the court today because I believe Judge

1
In Jones v. Pierce, No. 01-24-00377-CV, the margin of victory in that case was 449
votes. Based on evidence that significantly overlapped with the evidence here, Judge
Peeples found the true winner of the election could not be determined and ordered
a new election. While the appeal was pending the contestee/appellant resigned his
bench and dismissed the appeal, leaving the trial court’s judgment in place. As best
I can tell, in terms of votes cast that is the largest election ever overturned in Texas
history.

There were a variety of legal issues on appeal in Jones, and nothing I say here is a
comment on the proper result of that case. I use the publicly-available information
2
Peeples was within the bounds of his discretion to conclude that Craft’s margin of

victory was too large to be undermined by the number of votes Lunceford proved

were affected by the various election administration mistakes.

With that said, having reviewed the records and arguments for both cases I

have noticed ways in which current Texas law makes election challenges from large

jurisdictions difficult, or perhaps impossible. Some of these are beyond the control

of the courts—it seemed awfully hard for the contestants to get basic information

from the county to verify its election results, such as 1) voter rolls for who was a

registered voter on election day, 2) an accurate list of who voted, 3) cancellation and

suspense lists that were accurate on election day—so I won’t dwell on them.

But one issue falls squarely upon the judiciary: What type of proof suffices to

prove a voter who cast a ballot actually voted in a particular down-ballot election?

To overturn an election Texas law requires not just that illegal ballots were cast, but

that illegal votes were cast in the specific race being contested. In previous cases,

contestants met this burden through testimony by the voters, but the numbers here

make that practically impossible. In future big-jurisdiction cases, I think courts

should be open to the sort of general statistical reasoning Judge Peeples found

persuasive in this case.

and arguments from Jones simply as a data point of a case that had some, but not
complete, factual overlap with this case on the single issue I address here.
3
I. Size Comparisons

With over a million votes, this case is the largest election contest in Texas

appellate law, and it’s not remotely close. The next largest I can find involved

roughly 4% as many votes. See Miller v. Hill, 698 S.W.2d 372 (Tex. App.—Houston

[14th Dist.] 1985), pet. dism’d, 714 S.W.2d 313 (Tex. 1986). Indeed, Texas election

cases typically involve small numbers of votes in small elections. See, e.g., Medlin

v. King, 705 S.W.3d 267, 278 (Tex. App.—El Paso 2024, pet. denied) (litigating

residency of 26 Loving County voters for election with around 80 total votes);

Woods v. Legg, 363 S.W.3d 710, 712 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(litigating residency of voters for Galveston city council runoff where winner got

209 votes and loser 200).

The large number of votes here obscures how small the margin actually is.

For instance, in Rodriguez v. Rangel, 679 S.W.3d 890 (Tex. App.—San Antonio

2023, pet. denied), the contest concerned a 7-vote margin in an election where 3,907

ballots were cast. A 7-vote margin sounds a lot smaller than the 2,743 margin here

or the 449 margin in Jones, but as a percentage of votes cast the 7 votes in Rodriguez

is 0.18%, which is only slightly smaller than the 0.26% margin here, and

considerably larger than the 0.04% margin in Jones.

I point this out to dispel any notion that the litigants here and in Jones

challenged an extraordinarily high portion of voters. It is simply the case that any

4
election challenge in a large Texas jurisdiction is going to involve a challenge to

thousands of votes. The judiciary must be able to resolve a claim like that in a fair

and practical manner.

II. Evidence Large and Small

In election cases with few votes it’s not a huge burden to put on live witnesses.

While having twenty-six challenged voters testify in Medlin was likely a big to-do

in Loving County, that number of witnesses falls within ordinary parameters for a

trial.

But testimony from the thousands of challenged voters here and in Jones does

not. And neither Lunceford nor Pierce attempted to produce such testimony. Instead,

they attacked the lawfulness of large categories of ballots, including ballots

supported by improper documentation and ballots cast after hours, among others.

With those sorts of claims, with these sorts of numbers, how should a court

determine which of the challenged voters actually voted in the relevant election?

Lunceford and Pierce argued the court should simply apply the undervote percentage

for the overall election to the challenged number of votes. In this case, 96.14% of all

ballots cast included a vote for the 189th District Court, so take the number of people

who voted illegally, multiply it by 0.9614, and that’s the number of illegal votes in

this election.

5
Judge Peeples called this approach “reasonable,” and he followed it both here

and in Jones. In both cases the contestees challenged this method, claiming the lack

of testimony from individual voters left this evidence insufficient.

III. The Alternative to Statistical Reasoning

The contestees’ observation that all previous case law involves individual

testimony is true, as far as it goes. Although Judge Peeples’s approach is novel, I

think it was a reasonable adaptation to the numbers involved in a Harris County

election contest. Requiring contestants to put on thousands of witnesses to challenge

even the slimmest election loss would make election challenges insurmountable in

large jurisdictions.

Judge Peeples’s approach was appropriate for the facts of these cases. First,

it’s important to remember the contestants were not seeking to be declared the

winner, which is what many election contestants seek. Here, the contestants’

requested relief was for the trial court to order a new election because it could not

“ascertain the true outcome of the election.” TEX. ELEC. CODE § 221.012(b). This

standard, on its face, embraces a fair amount of ambiguity.

Second, as the size of a sample goes up, the more likely it is to reflect the

whole. Had Judge Peeples found one ballot illegal, it would not have been reasonable

to infer whether that ballot undervoted a particular election. Had he found ten ballots

illegal, it still would have been unreasonable to infer much. But as the sample size

6
increases so does the reasonableness of inferring that it reflects the whole. With the

sample sizes Judge Peeples was dealing with—in Jones it was 1,483 affected votes,

here it was 2,891—in the absence of arguments or evidence to the contrary it would

be reasonable to infer these voters behaved more or less like the other voters.

Third, individual testimony in cases like this has its own problems. This is

shown by Green v. Reyes, 836 S.W.2d 203 (Tex. App.—Houston [14th Dist.] 1992,

no writ). Green involved a multi-race Democratic primary runoff election. There

were 32,338 total ballots cast, with 31,530 votes in Green’s race; Green won the

original count by 186 votes.2

The evidence showed 429 voters illegally voted in the Democratic runoff after

voting in the Republican primary. Id. The question before the trial court was to

determine how many of those voters voted in Green’s race, and, if possible, for

whom did they vote?

Green says that 313 of the challenged voters—0.97% of total voters—testified

(by live testimony, deposition, affidavit, or phone testimony) in an 11-day trial. Two

things stand out from this number. First, even with a concerted effort just a few

weeks after the election, only about three quarters of the challenged voters could be

2
Green has one of the largest vote totals of any Texas election challenge, and it is the
largest election where an appellate court has upheld a trial court’s decision to
overturn the results. The 186-vote margin there is much smaller in absolute terms
than the margin here, but as a percentage of the vote it’s more than twice the margin:
0.59% there compared to 0.26% here.
7
found. The trial court found it was “highly unlikely” that evidence could be obtained

from the other 116 “even with a protracted trial.” Id. at 206-07. If an election

contestant is obliged to put on witness testimony, but a quarter of challenged voters

will be unreachable, that’s a severe hindrance to large-jurisdiction election

challenges. And, intuitively, one would reckon the less legitimate the voter, the less

likely he or she is to respond conscientiously to service.

The second thing that stands out is that 313 witnesses in 11 days is a

remarkable pace, but it’s still insufficient for the numbers at issue in a large

jurisdiction election challenge. Had the trial court here heard testimony from 0.97%

of the voters—10,718—even at the pace of thirty witnesses per day, five days a

week, it would take almost a year and a half just to receive evidence. That would be

a stupendous outlay of judicial resources, and the cost to both parties would be a

degree of magnitude more than the government salary of the elected office at issue.

And how useful would this testimony be? The trial court in Green noted that

even though the case was tried within a few weeks of the election the testimony

“must be viewed with caution since many of the voters who disclosed their vote did

so with qualifications such as ‘I think’ or ‘I probably.’” Id. at 206. If the contestant

here or in Jones called thousands of witnesses to testify months after the election

about whether they voted in one of sixty down-ballot judicial races, any testimony

would need to be, at best, “viewed with caution.”

8
And then there’s the very obvious point that witnesses would be testifying

because they voted illegally or, at least, in a manner that did not demonstrate the

highest levels of conscientiousness. If a witness testified she illegally cast a ballot a

year earlier and she “thinks” she voted in a particular down-ballot race, I don’t know

what a factfinder is supposed to do with that.

Multiplying the marginal testimony of a marginal witness by several thousand

doesn’t create clear and convincing proof of anything. If 10,000 witnesses with

obvious credibility problems testified, on appeal any appellate court would defer to

the trial court’s credibility finding no matter what it was. If 10,000 witnesses

testified, “I illegally voted in the election, but I didn’t vote in the race for the 189th,”

or if 10,000 witnesses testified, “I illegally voted in the election, and I definitely

voted for the 189th,” as long as there were at least 10,000 votes and 10,000

undervotes, any finding by the trial court would be upheld. Thus, a trial court would

distill an 18-month trial into whatever result the judge wanted, and that would be

that.3

3
I’m not implying the result would be whimsical, necessarily. Forcing a judge to
make a decision based on overwhelming quantities of incredible testimony is like
forcing him to build a house on sand. The only question is which direction it will
fall.
9
IV. General Statistical Reasoning is Sufficient

I don’t think such an extravagant proceeding is necessary to produce clear and

convincing evidence that votes were cast when the number of challenged voters is

as large as it is here. Green is the only example in the case law of a court calculating

the number of illegal votes by multiplying the number of illegally cast ballots by the

undervote percentage for the contested race. Judge Peeples relied on Green for his

decision to use general inductive statistical reasoning here and in Jones. In both cases

the contestees argued that Green required more evidence than what the contestants

produced here.

The contestees’ basic point was correct: Green had more evidence than Judge

Peeples required. But under scrutiny it’s clear the additional evidence in Green was

unneeded or ignored.

The contestant in Green challenged 429 voters, of whom 313 testified. That

left the trial court with the problem of how to account for the other 116 illegal votes.

The chair of Rice University’s political science department testified about how to

calculate the undervote. Both here and in Jones the contestees pointed at this expert

testimony as distinguishing Green from these cases, where there was no such expert

testimony.

But the Rice professor’s testimony in Green is a great example of a highly

credentialed individual testifying to common sense. The extent of his testimony on

10
the undervote was that “[t]here is absolutely no reason to think that [the] two and a

half percent [undervote] that characterized the entire [contested race] would have

been anything other than characteristic of the [illegal voters].” Id. at 211.

In its findings, the trial court in Green calculated the undervote by applying

the 2.5% undervote to all 429 illegal voters. That is, it disregarded the voters’

testimony about whether they voted and instead used statistical reasoning.

The Fourteenth Court upheld this method based on the Rice professor’s

testimony, but I don’t think the professor’s testimony added anything of value. A

political science professor stating he has no reason to doubt a commonsense

inference about undervoting is like the director of the McDonald Observatory

testifying he had no reason to believe the daytime sky on a certain date wasn’t blue.

Calling an expert to testify he has no reason to doubt a commonsense inference is,

to the degree it is evidence, an affirmation that the commonsense inference is

reasonable. The commonsense inference would have been as reasonable and as

strong without the expert’s testimony.

The other difference between this case (and Jones) and Green is that the

contestant in Green called some, but not all, of the illegal voters, but here (and in

Jones) the contestant did not call any challenged voters. The argument goes that even

if calling thousands of witnesses would be too burdensome, the contestants should

have called some of the challenged voters.

11
This objection to statistical reasoning fails for at least two reasons. The first

is that once we realize any witnesses will have credibility problems and testify

something like “I think I did/didn’t,” it doesn’t matter how many there are. Zero, a

hundred, and a thousand are all less useful than basic statistical reasoning. That

seems to be the conclusion the trial court reached in Green when it applied the

overall undervote percentage rather than relying on witness testimony.

The second is that taking a convenience sample of a sample doesn’t prove

whether the original sample was biased. That is, if we’re trying to determine whether

the 2,891 affected voters in this case behaved like the total population of 1,107,390,

getting testimony from, e.g., 289 of the affected voters doesn’t answer that question.

Instead, it just raises the question of whether those 289 were representative of the

2,891.

Rather than sampling a sample, courts can take the original sample for what

it is. To be sure, if there was something distinctive about the sample of illegal voters

suggesting they were not representative—if they all had the same last name or had

addresses in the same precinct—that’s the sort of thing that could be pointed out to

the trial court as a reason not to make an inference. And contestees are always able

to put on witnesses explaining why the sample of illegal voters isn’t representative

of the whole. But here there was nothing rebutting the commonsense inference that

12
the challenged voters voted in the contested race at more or less the same rate as

voters at large.

V. Caveats

I’m not advocating a blanket rule for all election contests. If a trial court found

there were ten illegal voters and the contested race had an undervote of 50%, you

can’t infer anything of value from that. What makes this case such a good case for

statistical reasoning is 1) the fairly large number of affected votes and 2) the very

low undervote percentage. As the number of affected votes gets smaller and the

undervote gets larger, inferences becomes less useful. Perhaps more marginal cases

would need expert statistical testimony, but Judge Peeples’s inferences here were

justified based on ordinary reason and common sense.

I will make one suggestion for how inferences could be better. Judge Peeples

applied the overall undervote percentage to all affected votes. But we know from the

final results that the undervote varied for different types of votes. For instance, in

the election challenged here, mail-in ballots had an undervote of 8.3%, early voting

ballots had an undervote of 3.2%, and election day ballots had an undervote of 4.4%.

Rather than applying the overall undervote percentage to all ballots, it would be

better to apply the corresponding percentage to each subset. But this approach would

not have created a substantial difference in the final number of affected votes.

13
VI. The Big Picture

No statute or constitutional provision requires that courts use the “clear and

convincing” burden of proof for election cases. It’s purely a matter of common law,

and as such courts should keep an eye to ensuring its application is appropriate.

Anytime the undervote is relevant in an election challenge, it’s only because

the contestant has already proved the number of illegal ballots exceeds the margin

of victory in an election. Without putting too fine a point on it, that’s a bad situation.

If, in such bad situations, courts use unnecessarily high burdens of proof to make

election challenges practically impossible, the public may become skeptical of all

election results, and justifiably so. But if the judiciary allows contestants to use

general statistical reasoning in large election contests, as Judge Peeples did here, we

can render results capable of assuring the public that the true winner won, even if

the election administration was not the pinnacle of excellence.

Clint Morgan
Justice

Panel consists of Justices Rivas-Molloy, Gunn, and Morgan.

Morgan, J., concurring.

Publish.

14

Opinion issued February 3, 2026.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00921-CV
———————————
ERIN ELIZABETH LUNCEFORD, Appellant
V.
TAMIKA CRAFT, Appellee

On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2022-79328

OPINION

This is an appeal from a final judgment in an election contest.1 In four issues,

Appellant Erin Elizabeth Lunceford challenges the trial court’s final judgment

1
See TEX. ELEC. CODE § 221.002(f) (providing that court of appeals has appellate
jurisdiction of election contests originating in district court).
denying her contest to the 2022 general election for judge of the 189th District Court

in Harris County and declaring the results of that election—in which the final

canvass reflected that Tamika “Tami” Craft defeated Lunceford by a margin of 2,743

votes—to be the true outcome.

We affirm the judgment of the trial court.

2022 General Election for Judge of the 189th District Court

On November 8, 2022 (“Election Day”), Harris County conducted a general

election featuring several races for countywide positions on the ballot (“General

Election”).2 Harris County participates in the Countywide Polling Place Program,

which allows a county to establish non-precinct-based voting centers throughout the

county at which voters can cast a ballot.3 For the 2022 General Election, registered

voters were permitted to vote at any one of ninety-nine early-voting polling places

or 782 election-day polling places throughout the county. See TEX. ELEC. CODE

§ 43.007 (setting forth Countywide Polling Place Program).

One of the countywide races featured on the ballot for the 2022 General

Election was the race for District Judge of the 189th Judicial District in Harris

County between Appellant Erin Elizabeth Lunceford and Appellee Tamika “Tami”

2
Early voting was held from October 24 to November 4, 2022.
3
The Secretary of State first approved Harris County for participation in the
Countywide Polling Place Program in March 2019.

2
Craft (“Contested Race”). The Harris County official canvass report reflects that a

total of 1,107,390 votes were cast in the General Election. Of that total vote count,

1,064,677 votes were cast in the Contested Race, resulting in 42,713 undervotes or

a total undervote percentage of 3.86 in the Contested Race.4 Craft received 533,710

votes while Lunceford received 530,967 votes, resulting in a 2743-vote margin of

victory for Craft.

Lunceford’s Election Contest

On December 7, 2022, Lunceford filed suit under Section 221.003 of the

Election Code alleging that the outcome of the Contested Race, “as shown by the

final canvass, [was] not the true outcome.” See TEX. ELEC. CODE § 221.003(a).

Lunceford alleged that the final canvass of the Contested Race was inaccurate

because illegal votes were cast and counted, legal votes were cast but not counted,

and election officials prevented eligible voters from voting, failed to count legal

votes, or engaged in fraud, illegal conduct, or a mistake. As a result, Lunceford

argued that the true outcome of the Contested Race was unascertainable for purposes

4
An undervote occurs when a voter casts a ballot but does not cast a vote in all races
featured on the ballot. Reese v. Duncan, 80 S.W.3d 650, 653 n.2 (Tex. App.—Dallas
2002, pet. denied) (“An overvote is a vote in which the voter voted for both
candidates. An undervote is a vote in which the voter did not vote for either
candidate.”). The term “roll off” is sometimes used instead of “undervote.” Green
v. Reyes, 836 S.W.2d 203, 211 (Tex. App.—Houston [14th Dist.] 1992, no writ)
(quoting testimony stating that “roll off” means voter did not vote in particular
election).

3
of Section 221.012(b) of the Election Code. Id. § 221.012(b). She requested that the

trial court declare the election void and order a new election.

At trial, Lunceford challenged the legality of votes cast in the General Election

based on several categories of alleged irregularities. Relevant to this appeal,

Lunceford alleged that (1) votes were cast by voters who were on the registrar’s

suspense list and had not presented a statement of residence, as required, before

voting, and (2) votes were cast by voters who provided an incomplete reasonable

impediment declaration. She further alleged that (1) the Harris County Elections

Administration Office (“EAO”)5 failed to provide sufficient ballot paper to polling

places in advance of the General Election and as a result, “2,535 voters were

estimated to have been turned away” from twenty-four polling places on Election

Day, and (2) “411 voters were turned away” from twenty polling places on Election

Day for other reasons, including machine malfunctions, poll workers’ inability to

reach the EAO on the phone or by other means, a lack of equipment or supplies, and

other problems.

Lunceford also claimed that the actions of the EAO contributed to the

inaccuracy of the final canvass in the Contested Race, because the EAO and Harris

5
The 2022 General Election was held prior to the Legislature’s abolition of the
position of county elections administrator in counties with a population of more than
3.5 million, like Harris County. On September 1, 2023, all powers and duties of the
county elections administrator were transferred to the county tax assessor-collector
and county clerk. See TEX. ELEC. CODE § 31.050.

4
County Election Administrator (“EA”) made a “mistake” within the meaning of

Section 221.003(c) of the Election Code by improperly agreeing to the issuance of a

temporary restraining order (“TRO”) extending countywide voting at all polling

places from 7 p.m. to 8 p.m. on Election Day. The final canvass reflects that a total

of 1969 provisional ballots were cast during the additional hour of voting in the

Contested Race. Craft received 1147 of those votes, while Lunceford received 822,

resulting in a 325-vote margin in favor of Craft. According to Lunceford, these late-

cast provisional ballots should not have been included in the final canvass and should

have been deducted from Craft’s margin of victory.

Trial Court’s Judgment and Post-Trial Proceedings

The trial court conducted a bench trial over the course of several days. After

hearing testimony from eleven live witnesses, four witnesses by oral deposition, and

thirty-eight others by deposition on written questions (“DWQ”), and admitting

approximately 120 exhibits, the trial court rendered a final judgment denying

Lunceford’s election contest and declaring that “Craft’s victory in the contest for the

Judge of the 189th District Court” was the “true outcome.”

The trial court issued findings of fact and conclusions of law in support of its

judgment. The trial concluded that Lunceford had established by clear and

convincing evidence that a total of 2779 votes had been “affected” in the Contested

Race. Relevant to this appeal, the trial court found that 2600 voters had left polling

5
places on Election Day due to ballot paper shortages and that of those 2600, between

“250 and 850 voters” were not able to cast a vote elsewhere. The court also found

that 380 illegal votes had been cast by voters who filled out a Reasonable

Impediment Declaration because the forms were “lacking [] statutory information.”

And the trial court concluded that the EAO and the EA made a “mistake” within the

meaning of Section 221.003 by “agreeing on Election Day to a Temporary

Restraining Order [TRO] that extended the voting period countywide from 7:00 p.m.

to 8:00 p.m.” based on inaccurate assurances that all polling places would have

enough ballot paper. As a result, the 325 net votes cast for Craft during the extended

hour of voting on Election Day would be “taken into account in the court’s ultimate

decision.”

The trial court found that Lunceford had not established by clear and

convincing evidence that 1995 voters who had a suspense notation next to their name

on the Harris County Voter Roster (“Roster”) had cast a vote impermissibly, and it

did not factor into its consideration any of the 411 additional voters Lunceford

claimed had been turned away from polling places on Election Day for reasons

unrelated to ballot paper shortages, finding that the alleged problems “were not

caused by EAO decisions.”

In all, the trial court concluded that 2891 votes had been “affected” in the

General Election and, applying the 3.86 undervote percentage for the Contested

6
Race, it reduced that number to 2779 total “affected” votes in the Contested Race.6

The court held that while the 2779 votes “slightly exceeded” Craft’s 2743 margin of

victory, the number of affected votes was “not large enough to put the true outcome

[of the election] in doubt.” The court thus declared that Craft’s victory in the

Contested Race was the true outcome.

Lunceford appealed from the final judgment, and Craft filed a notice of cross-

appeal.7

6
In addition to the 325 net votes cast for Craft during the extended hour of voting on
Election Day, the 250 to 850 votes the trial court concluded were “not cast” on
Election Day due to ballot paper shortages, and the 380 votes the trial court found
were cast using incomplete Reasonable Impediment Declarations (a total of 1555
votes), the trial court considered other alleged irregularities asserted by Lunceford.
The trial court concluded that a total of 1336 illegal votes had been cast based on
these other alleged irregularities because (1) a number of mail-in-ballots lacked a
proper signature, were not timely mailed, or were not properly reviewed by the
signature verification committee, (2) a number of provisional ballot affidavits were
improperly approved for voting because they lacked a signature from the voter, the
election judge, or the early voting ballot board, (3) a number of voters who
completed a Statement of Residence were permitted to vote even though the SOR
was incomplete or reflected the voters resided outside Harris County, and (4) a
number of voters whose voter registration had been cancelled had cast a vote.
Because it is not necessary to our disposition, we do not address, nor do we express
an opinion regarding, the correctness or sufficiency of the trial court’s conclusions
of law or findings of fact as to the alleged voting irregularities involving these 1336
votes, nor do we address Craft’s corresponding crosspoints on these matters.
7
Craft does not seek to obtain greater relief on appeal than she received by the final
judgment or to alter any portion of the judgment. See TEX. R. APP. P. 25.1(c). Her
arguments are thus more accurately described as “cross-points” or “counter-points.”
See Dudley Constr., Ltd. v. Act Pipe & Supply, Inc., 545 S.W.3d 532, 538 (Tex.
2018) (“Counter-points assist the appellate court in finding the answers given to the
points of the appellant [and their] function is to show that the point or points of the
opposite party are not valid. Cross-points, on the other hand, . . . are used to preserve
error committed by the trial court [and they] are the means by which an appellee

7
Before we analyze the issues on appeal, we address Craft’s motion to dismiss.

Motion to Dismiss

Craft moved to dismiss the appeal on the basis that Lunceford’s notice of

appeal was untimely. She asserts that Lunceford’s appeal is an accelerated appeal

subject to Rule of Appellate Procedure 28.1(a) and the accelerated deadlines in Rule

26.1(b).8 TEX. R. APP. P. 26.1(b), 28.1(a). Because Lunceford did not file her appeal

within twenty days of the final judgment, and she did not request an extension of

time to file her notice of appeal within fifteen days of the deadline, Craft argues

Lunceford’s notice of appeal was not timely. See id. R. 26.1(b).

The timely filing of a notice of appeal vests the court of appeals with

jurisdiction over the appeal. See Sweed v. Nye, 323 S.W.3d 873, 875 (Tex. 2010).

An appeal is perfected when a written notice of appeal is filed with the trial court

clerk. TEX. R. APP. P. 25.1(a). Appellate deadlines begin to run on the date the trial

may bring forward complaints of some ruling or action of the trial court which the
appellee alleges constituted error as to him.”) (internal quotation and citations
omitted); Dean v. Lafayette Place (Section One) Council of Co–Owners, Inc., 999
S.W.2d 814, 818 (Tex. App.—Houston [1st Dist.] no pet.) (“If an appellee is
satisfied with the relief granted by the trial court, but merely wants to present
additional, independent grounds for affirming the trial court’s judgment, no notice
of appeal is required. The independent grounds for affirmance can be raised in a
cross-point as long as the appellee is not requesting greater relief than that awarded
by the trial court.”).
8
Craft also seeks dismissal arguing that Lunceford missed the deadline to pay her
appellate filing fee. The record reflects that Lunceford paid the appellate fee one
day before Craft filed her motion. We thus reject this basis for dismissal.

8
court signs the judgment or other appealable order. See Mitschke v. Borromeo, 645

S.W.3d 251, 253 (Tex. 2022). “[A]ppeals required by statute to be accelerated or

expedited, . . . are accelerated appeals.” TEX. R. APP. P. 28.1(a). “[I]n an accelerated

appeal, the notice of appeal must be filed within 20 days after the judgment or order

is signed .” Id. R. 26.1(b).

Craft argues that this appeal is accelerated because Lunceford pleaded in her

Fifth Amended Petition that her case should be expedited, relying in part on Section

231.009 of the Election Code. Section 231.009 states that “[a]n election contest has

precedence in the appellate courts and shall be disposed of as expeditiously as

practicable.” TEX. ELEC. CODE § 231.009. Lunceford responds that Section 231.009

does not create an accelerated timetable. And while an appeal from a general election

can be accelerated under Section 232.015 of the Election Code, neither she nor Craft

requested that the appeal be accelerated under that section. She thus argues that her

appeal is a regular appeal.

The opinion in Perez v. Trevino, No. 13-17-00087-CV, 2017 WL 2705477

(Tex. App.—Corpus Christi–Edinburg June 22, 2017, no pet.) (mem. op.) is

persuasive and instructive with respect to the nature of Lunceford’s appeal. The

appeal in Perez was from a final judgment rendered in an election contest

challenging the results of a runoff election for a city commissioner’s race. Id. at *1.

The court of appeals held that because the runoff election was a special election, the

9
nature of the appeal was governed by Section 232.015 of the Election Code. See id.

at *5; see generally TEX. ELEC. CODE § 232.001 (“This chapter applies to a contest

of an election for nomination or election to a public office or an office of a political

party.”). Section 232.015(a) states that a trial or appellate court “may accelerate the

appeal in a contest of a general or special election in a manner consistent with the

procedures prescribed by Section 232.014” for accelerated appeals in primary

contests. Id. § 232.015(a). The Perez court held that the use of the term “may” in

Section 232.015 provided Perez with “the discretionary authority to accelerate his

special election contest appeal,” but it “did not create a mandatory acceleration of

the appeal.” Perez, 2017 WL 2705477, at *5.

Lunceford is appealing from a final judgment rendered in an election contest

challenging the results of a judicial race in the 2022 General Election, and thus the

nature of her appeal is governed by Section 232.015(a). Section 232.015(a) affords

courts discretion to accelerate appeals in a general election contest. See TEX. ELEC.

CODE § 232.015(a). Neither Lunceford nor Craft requested that the court accelerate

the appeal pursuant to Section 232.015(a). Lunceford’s appeal is thus subject to the

notice of appeal rules for regular appeals, not accelerated appeals.

There is no dispute that Lunceford filed a timely notice of appeal for a regular

appeal. We thus deny Craft’s motion to dismiss.

We now turn to the issues on appeal.

10
Summary of Issues

Lunceford raises four issues on appeal. In her first issue, and in part of her

third and fourth issues, she challenges the factual and legal sufficiency of the trial

court’s findings that only between 250 to 850 voters were unable to cast a vote on

Election Day due to ballot paper shortages. She argues the trial court should have

factored all 2600 voters who were turned away from polling places on Election Day

due to ballot paper shortages when considering whether it could ascertain whether

the reported outcome of the Contested Race was the true outcome. In her second and

third issues, Lunceford argues that the trial court erred by not taking into account the

“411 voters [who] were turned away from specific voting locations for reasons

unrelated to ballot paper” and the 1995 votes cast by voters on the suspense list who

did not provide a statutorily required Statement of Residence when deciding whether

it could ascertain whether the reported outcome of the Contested Race was the true

outcome. Last, in her fourth issue, Lunceford argues that the evidence presented at

trial prevented the court from declaring that the purported outcome of the Contested

Race was the true outcome. Lunceford’s fourth issue largely overlaps with her first

three issues on appeal. We thus address her fourth issue as part of our overall

discussion of her first three issues.

Craft raises several crosspoints on appeal. She argues that (1) the trial court

erred in permitting Lunceford’s witnesses to provide expert testimony, (2) the trial

11
court erred in holding that Section 51.005 of the Election Code applied to the 2022

General Election and that the EAO failed to comply with it, (3) the evidence is

legally and factually insufficient to support a finding that illegal votes were cast by

out of county residents, (4) the evidence is legally and factually insufficient to

support a finding that illegal votes were cast based on incomplete reasonable

impediment declarations, (5) the trial court erred in concluding that the EAO made

a “mistake” within the meaning of Section 221.003, and (6) the trial court erred in

applying the undervote percentage for the Contested Race without expert testimony

or other competent evidence supporting its application of that percentage to calculate

the number of affected votes in the Contested Race.

We overrule Lunceford’s issues on appeal.9

Election Contests

A. Scope of Inquiry

“An election contest is not an ordinary civil suit but a special statutorily

created special proceeding that provides a ‘remedy for elections tainted by fraud,

illegality or other irregularity.’” Medlin v. King, 705 S.W.3d 267, 281 (Tex. App.—

El Paso 2024, pet. denied) (quoting Blum v. Lanier, 997 S.W.2d 259, 262 (Tex.

1999)); see also Woods v. Legg, 363 S.W.3d 710, 713 (Tex. App.—Houston [1st

Dist.] 2011, no pet.) (same). “The purpose of an election contest is to determine

9
Given our disposition, we need not reach Craft’s crosspoints on appeal.

12
whether the outcome of an election is correct.” Flores v. Cuellar, 269 S.W.3d 657,

660 (Tex. App.—San Antonio 2008, no pet.).

Section 221.003 of the Election Code dictates the scope of a trial court’s

inquiry in an election contest. Under Section 221.003(a), a trial court “shall attempt

to ascertain whether the outcome of the contested election, as shown by the final

canvass, is not the true outcome” because:

(1) illegal votes were counted; or

(2) an election officer or other person officially involved in the
administration of the election:

(A) prevented eligible voters from voting;

(B) failed to count legal votes; or

(C) engaged in other fraud or illegal conduct or made a
mistake.

TEX. ELEC. CODE § 221.003(a). Section 221.003(b) defines “illegal vote” as “a vote

that is not legally countable.” Id. § 221.003(b). Section 221.003(b) does not define

what it means to make a “mistake.”10

During its inquiry, if the trial court can ascertain the candidate for whom an

illegal vote was cast, it “shall subtract the vote from the official total for the

candidate . . . as applicable.” Id. § 221.011(a). If, however, the trial court “finds that

10
“The language used in the election code regarding mistakes is obviously broad and
could be read to include all sorts of election code violations.” Gonzalez v. Villarreal,
251 S.W.3d 763, 778 (Tex. App.—Corpus Christi–Edinburg 2008, pet. dism’d).

13
illegal votes were cast but cannot ascertain how the voters voted, the [trial court]

shall consider those votes in making its judgment.” Id. § 221.011(b). After its

inquiry, if the trial court “can ascertain the true outcome of the election, the [trial

court] shall declare the outcome.” Id. § 221.012(a). The trial court, however, “shall

declare the election void if it cannot ascertain the true outcome of the election.” Id.

§ 221.012(b). “If the number of illegal votes is equal to or greater than the number

of votes necessary to change the outcome of an election, the tribunal may declare

the election void without attempting to determine how individual voters voted.” Id.

§ 221.009(b).11

B. Burden of Proof in Election Contest

Lunceford argued in the trial court that the results of the Contested Race

should be voided because alleged irregularities made it impossible to ascertain the

true outcome of the race. “An election contestant’s burden is a heavy one, and the

declared results [of an election] will be upheld in all cases except when there is clear

and convincing evidence of an erroneous result.” Medlin, 705 S.W.3d at 292; see

also Price v. Lewis, 45 S.W.3d 215, 218 (Tex. App.—Houston [1st Dist.] 2001, no

pet.) (same).

11
Section 221.009(a) states: “A voter who cast an illegal vote may be compelled, after
the illegality has been established to the satisfaction of the tribunal hearing the
contest, to disclose the name of the candidate for whom the voter voted or how the
voter voted on a measure if the issue is relevant to the election contest.” TEX. ELEC.
CODE § 221.009(a).

14
To overturn an election, an election contestant must demonstrate by clear and

convincing evidence that a voting irregularity occurred, and the irregularity

materially affected the outcome of the election. Reese v. Duncan, 80 S.W.3d 650,

655 (Tex. App.—Dallas 2002, pet. denied); see also Medlin, 705 S.W.3d at 292

(holding that “an election will not be overturned unless an election contestant proves

voting irregularities materially affected the results”); Woods, 363 S.W.3d at 713

(same). The outcome of an election is “materially affected” when a different and

correct result would have been reached in the absence of irregularities, see Woods,

363 S.W.3d at 713, or the irregularities in the election render it impossible to

determine the true will of a majority of the voters. McCurry v. Lewis, 259 S.W.3d

369, 373 (Tex. App.—Amarillo 2008, no pet.).

Clear and convincing evidence means the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established. In re J.F.C., 96 S.W.3d 256, 264 (Tex.

2002). The clear and convincing standard applies when particularly important

individual interests are at risk, and it requires more proof than the preponderance of

the evidence standard applicable in most civil cases. Stary v. Ethridge, 712 S.W.3d

584, 592 (Tex. 2025). It is “an intermediate standard, falling between the

preponderance standard of ordinary civil proceedings and the reasonable doubt

standard of criminal proceedings.” In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).

15
C. Standard of Review

In an election contest, we review the record to determine whether the trial

court abused its discretion. Woods, 363 S.W.3d at 713. A trial court abuses its

discretion when it acts without reference to guiding rules or principles or in an

arbitrary or unreasonable manner. In re Garza, 544 S.W.3d 836, 840 (Tex. 2018).

To determine whether the trial court abused its discretion in ruling on an election

contest, we may consider the sufficiency of the evidence supporting its findings of

fact. Rodriguez v. Rangel, 679 S.W.3d 890, 903 (Tex. App.—San Antonio 2023, pet.

denied).

When an appellant challenges the legal sufficiency of an adverse finding on

an issue on which she had the burden of proof, such as Lunceford does here, the

appellant “must demonstrate on appeal that the evidence establishes, as a matter of

law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d

237, 241 (Tex. 2001); DeSpain v. DeSpain, 672 S.W.3d 486, 492 (Tex. App.—San

Antonio 2023, no pet.) (reviewing legal sufficiency challenge by party who bore

burden of proof on issue at trial by clear and convincing evidence). “The point of

error should be sustained only if the contrary proposition is conclusively

established.” Dow Chem. Co., 672 S.W.3d at 492. A matter is conclusively

established only if reasonable people could not differ as to the conclusions to be

drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.

16
2005). If the evidence shows there was a conflict, then the elements were not

conclusively established. See Gilbreath v. Horan, 682 S.W.3d 454, 491 (Tex.

App.—Houston [1st Dist.] 2023, pet. denied) (citing Hathaway v. Gen. Mills, Inc.,

711 S.W.2d 227, 229 (Tex. 1986)).

When an appellant challenges the factual sufficiency of an adverse finding on

an issue on which she had the burden of proof, the appellant generally must establish

that the finding was against the great weight and preponderance of the evidence. See

Dow Chem. Co., 46 S.W.3d at 242. That standard, however, is not adequate where

the burden of proof at trial was clear and convincing evidence. Aguilar v. Soliz, No.

03-20-00121-CV, 2021 WL 2750456, at *3 (Tex. App.—Austin July 2, 2021, no

pet.) (mem. op.) (citing Burns v. Burns, 434 S.W.3d 223, 227–28 (Tex. App.—

Houston [1st Dist.] 2014, no pet.)). In election contests, where the standard is

heightened to clear and convincing evidence, we review the entire record to

determine whether the trial court’s failure to form a firm conviction or belief in

support of the issue is “contrary to the overwhelming weight of the evidence and

clearly wrong.” Burns, 434 S.W.3d at 227. We may not reweigh the evidence or

judge the credibility of witnesses, and we defer to the trial court’s credibility

determinations so long as they are not unreasonable. See In re A.B., 437 S.W.3d 498,

503 (Tex. 2014) (stating under clear and convincing standard “[a] court of appeals

must nevertheless still provide due deference to the decisions of the factfinder, who,

17
having full opportunity to observe witness testimony first-hand, is the sole arbiter

when assessing the credibility and demeanor of witnesses”); see also Aguilar, 2021

WL 2750456, at *3 (citing In re J.P.B., 180 S.W. 570, 573 (Tex. 2005) and

articulating factual sufficiency standard where appellant bore clear and convincing

burden of proof at trial). “We examine the record []in light of the high evidentiary

burden that [the party] bore and our required appellate deference to the trial court’s

decision that the evidence did not meet it.” Burns, 434 S.W.3d at 228.

D. Findings of Fact and Conclusions of Law

In a bench trial, we defer to the trial court’s findings of fact, and we review

conclusions of law de novo. Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 683

(Tex. 2020). A party may not challenge conclusions of law for factual sufficiency,

but we may review conclusions of law to determine their correctness based upon the

facts. Citizens Nat’l Bank v. City of Rhome, 201 S.W.3d 254, 256 (Tex. App.—Fort

Worth 2006, no pet.). We will uphold a conclusion of law if the judgment can be

supported on any legal theory supported by the evidence. Tex. Dep’t of Public Safety

v. Stockton, 53 S.W.3d 421, 423 (Tex. App.—San Antonio 2001, pet. denied). We

will not reverse a conclusion of law unless it is erroneous as a matter of law. Id. If a

trial court’s conclusion of law is erroneous but the court rendered the proper

judgment, the erroneous conclusion does not require reversal. BMC Software Belg.,

N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

18
“[F]indings of fact and the conclusions of law will be construed together; and

if the findings of fact are susceptible of different constructions, they will be

construed, if possible, to be in harmony with the judgment and to support it.” Tex.

Outfitters Ltd., LLC v. Nicholson, 534 S.W.3d 65, 74 (Tex. App.—San Antonio

2017), aff’d, 572 S.W.3d 647 (Tex. 2019) (quoting Gulf Liquid Fertilizer Co. v.

Titus, 163 Tex. 260, 270, 354 S.W.2d 378, 385 (1962)).

Discussion

A. Ballot Paper Shortages at Polling Places on Election Day

In her first issue, and as part of her third and fourth issues, Lunceford

challenges the legal and factual sufficiency of the trial court’s finding that only

between 250 to 850 voters were unable to cast a vote on Election Day due to ballot

paper shortages resulting from the EAO’s failure to comply with Section 51.005 of

the Election Code. She argues that because “the evidence conclusively

demonstrated” that 2600 potential “voters tried to vote but were turned away” from

polling places on Election Day due to ballot paper shortages, the trial court erred in

factoring only 850 voters when considering whether it could ascertain whether the

reported outcome of the Contested Race was the true outcome. In other words, she

argues the trial court should have concluded that as a result of the EAO’s violation

of Section 51.005, a total of 2600 voters were unable to cast a ballot on Election Day

due to paper ballot shortages.

19
Craft responds that Lunceford is seeking to lower her burden of proof by

requesting that this Court, in sustain her first issue, “assume,” without any evidence,

“that all 2,600 [persons who left their polling place on Election Day] were unable to

vote elsewhere because proving otherwise” would be “both impossible and

impractical.” In her crosspoint on this issue, Craft also argues that the trial court

abused its discretion in finding that 2600 lawful voters left a polling place without

voting because of ballot paper shortages and estimating that between 250 to 850 of

those potential voters did not vote elsewhere on Election Day. She argues the trial

court abused its discretion because there is no clear and convincing evidence that

any of the 2600 potential voters who were eligible to vote “left because of ballot

paper issues as opposed to any other reasons,” were “unable to vote elsewhere or did

not vote at a different polling location after leaving,” and would have voted in the

Contested Race. There is thus no competent evidence from which the trial court

could have reasonably “estimated” that 250 to 850 of 2600 potential voters did not

vote on Election Day. And she further disputes that the EAO violated Section 51.005

of the Election Code.

1. Section 51.005 of the Election Code

Section 51.005 of the Election Code, titled “Number of Ballots,” states:

(a) The authority responsible for procuring the election supplies
for an election shall provide for each election precinct a
number of ballots equal to at least the percentage of voters

20
who voted in that precinct in the most recent corresponding
election plus 25 percent of that number.

(a-1) The number of ballots provided may not exceed the total
number of registered voters in the precinct unless the county
participates in the countywide polling place program under
Section 43.007.

TEX. ELEC. CODE § 51.005(a), (a-1).

Lunceford challenged the results of the Contested Race, arguing, among other

things, that the EAO did not comply with Section 51.005 of the Election Code,

because, contrary to its provisions, the EAO supplied polling places with the same

amount of ballot paper on Election Day—1200 pages, enough for 600 voters—rather

than allocating ballot paper by accounting for “125% of the voters from the last-like

election.” She argued that due to the EAO’s violation of Section 51.005, several

polling places experienced ballot paper shortages on Election Day and, as direct

result, 2535 persons who were in line to vote on Election Day were “turned away.”12

Craft argued that Section 51.005 is not applicable because it applies to

precinct-based elections, and the 2022 General Election involved a countywide

polling place election. She further argued that the EAO could not have used the

information from the most recent corresponding election to allocate ballot paper on

12
Although the trial court found that 2600 potential voters left a polling place on
Election Day due to ballot paper shortages, Lunceford acknowledges that she
presented evidence of only 2535 such potential voters. It is unclear how the trial
court arrived at the 2600 figure.

21
Election Day because the most recent corresponding election—the 2018 general

election—had been a precinct-based election and not a countywide polling place

election, and further, Harris County underwent redistricting and “re-precincting” in

early 2022.

In its final judgment and findings of fact and conclusions of law, the trial court

held that Section 51.005 applied to the 2022 General Election and that the EAO had

not complied with it because it had allocated an identical number of ballot paper to

766 of the 782 polling places on Election Day rather than “calculat[ing] the 2022

need for ballot paper scientifically by looking at known numbers from” the 2018

general election. As a result, the court concluded that “several polling locations ran

out of paper” on Election Day and 2600 voters left the polling places where such

shortages occurred without voting. “Given the state of the evidence,” the trial court

“estimated” that “between 250 and 850 voters left [the first polling place] and did

not vote elsewhere” on Election Day. The trial court found that the “EAO’s ballot

paper decision to ignore section 51.005 was both ‘illegal conduct’ and a mistake.” It

thus factored a total of 850 “affected” votes when making its final determination.

We need not decide whether Section 51.005 applied to the 2022 General

Election or whether the EAO’s purported failure to comply with Section 51.005

constitutes illegal conduct or a mistake because even assuming Section 51.005

applied and that the EAO failed to comply with it—issues we do not reach—

22
Lunceford failed to establish conclusively that 2600 potential eligible voters were

denied the privilege of voting in the Contested Race on Election Day due to ballot

paper shortages.

2. Analysis

To satisfy her burden at trial with respect to the 2600 voters, Lunceford had

to establish not only that the voters left polling places on Election Day due to ballot

paper shortages, but also that those voters (1) were eligible to vote,13 (2) would have

cast a vote in the Contested Race, and (3) were unable to cast a vote on Election Day.

See Medlin, 705 S.W.3d at 309 (“The relevant inquiry on appeal is whether []

election officials prevented eligible voters from voting in the contested elections.”);

Reese, 80 S.W3d at 656 (holding that in multi-race election, contestant “must []show

the illegal votes were cast in the race being contested”).

The evidence at trial established that on Election Day, 24 of the 782 polling

places throughout the county experienced ballot paper shortages at some point

during election hours. Three election officials testified at trial (one live and two by

deposition), and twenty-one others submitted testimony via depositions by DWQs

13
To qualify as an eligible voter, a voter must meet the requirements of “a qualified
voter as defined by Section 11.002 [of the Election Code] on the day the person
offers to vote,” be “a resident of the territory covered by the election for the office
or measure on which the person desires to vote,” and “satisfy all other requirements
for voting prescribed by law for the particular election.” TEX. ELEC. CODE
§ 11.001(a).

23
on this issue.14 While they all testified that at some point during Election Day they

experienced ballot paper shortages at their polling places and that some voters left

due to the shortages, with the exception of one election official, no other election

official testified that they knew that specific number of those voters were unable to

cast a vote elsewhere. Indeed, some election officials conceded it was possible that

the voters they “turned away” from their polling place could have voted at one of

the other 782 election-day polling places, and some testified that they informed the

“turned away” voters of nearby polling places at which they could vote.

Victoria Williams, a presiding judge on Election Day, was the only witness

who testified that she knew that some of the voters at her polling place who left due

to ballot paper shortages were unable to cast a ballot elsewhere on Election Day. She

testified that she started running low on ballot paper, and when she had about 100

pages left—enough for fifty voters to cast their vote—she counted the first fifty

people waiting in line. She and her clerks informed the rest of the people in line that

they were running low on ballot paper, and they directed them to a posted list of

nearby polling locations. See TEX. ELEC. CODE § 43.007(O) (“Each countywide

polling place must post a notice of the four nearest countywide polling place

locations by driving distance.”). According to Williams, some of the people looked

14
The trial court considered a total of thirty-eight DWQs from election officials: (1)
twenty-one addressed ballot paper shortages, and (2) the remainder addressed
alleged irregularities unrelated to ballot paper shortages.

24
at the list of nearby polling places, some waited, and others left. Asked whether she

had any evidence that any of the “turned away” voters had been unable to vote

elsewhere, she said she could only “guarantee without a doubt” that seventy-one

people, who were “in [her] line at 7:00 pm” had not been able to cast a vote, because

there were seventy-seven people inside her polling place and “[b]y the time the paper

arrived [at 10:15 p.m.] there were only six left.” She testified that with respect to the

people who left her polling place before 8 p.m., those voters could have cast a ballot

elsewhere if that location had paper.

The trial court therefore was not presented with conclusive evidence that 2600

eligible voters were unable to cast a vote on Election Day due to paper ballot

shortages. See City of Keller, 168 S.W.3d at 816 (stating matter conclusively

established only if reasonable people could not differ as to conclusions to be drawn

from evidence). At most, the court was presented with evidence that seventy-one

people were unable to cast a ballot on Election Day due to ballot paper shortages.

Even giving due deference to the trial court’s finding that as many as 850 voters

were unable to cast a ballot on Election Day due to paper shortages attributable to

EAOs’ alleged illegal conduct or mistake, the result would be the same because there

25
is no conclusive evidence that the remaining 1236 voters were unable to cast a vote

on Election Day as a result of the EAO’s conduct.15

As part of her fourth issue on this point, Lunceford argues that because the

“evidence conclusively demonstrated” how many voters tried to vote but were

turned away”—2600—the trial court’s findings were in error. She argues the trial

court was “obligated” to find that it was not necessary for her to prove the identity

of the 2600 voters who left without voting, whether they ultimately voted elsewhere

on Election Day, whether they would have cast a ballot in the Contested Race, and

for whom they would have voted, because it was “impossible and impractical” for

her to prove these “unprovable facts.”

According to Lunceford, the trial court should have factored not just 850

voters, but a total of 2600 voters in its final determination. She reasons the trial court

was required to do so because she proved that as a result of the EAO’s purported

illegal conduct and mistakes, at least twenty-four polling places ran out of ballot

paper on Election Day and 2600 potential voters left those polling places without

voting due to the ballot paper shortages. She argues that “all that is required [of her]

is to show that these things occurred, so that the Court may take them into account

15
Even assuming the 850 number is supported by the evidence, as we conclude later
in our opinion, the trial court did not abuse its discretion in concluding that the total
number of affected votes was “not large enough to put the true outcome [of the
Contested Race] in doubt.”

26
when determining whether the true outcome of the election may be ascertained.” We

disagree.

As the election contestant in this case, Lunceford bore the heavy burden of

proving by clear and convincing evidence that voting irregularities occurred in the

Contested Race and that those voting irregularities materially affected the outcome

of the race. See Reese, 80 S.W.3d at 655 (stating contestant must prove by clear and

convincing evidence that “voting irregularities materially affected the outcome of

the election”); Medlin, 705 S.W.3d at 292 (“An election contestant’s burden is a

heavy one, and the declared results will be upheld in all cases except when there is

clear and convincing evidence of an erroneous result.”). This heavy burden required

her to establish that eligible voters were unable to cast a vote in the Contested Race

due to ballot paper shortages.

Citing to Section 221.012 of the Election Code, Lunceford argues she was not

required to prove whether any of 2600 potential voters ultimately voted elsewhere

and whether they would have cast a ballot in the Contested Race, because it was

impossible and logistically impractical for her to do so, and thus the trial court should

have taken all 2600 potential votes into account “when determining whether the true

outcome of the election may be ascertained.” Lunceford’s argument does not survive

scrutiny.

27
Under Section 221.003, titled “Scope of Inquiry,” the tribunal must first

“attempt to ascertain whether the outcome of the contested election, as shown by the

final canvass, is not the true outcome” because illegal votes were counted or election

officials prevented eligible voters from voting, failed to count legal votes, or engaged

in other fraud or illegal conduct or made a mistake. TEX. ELEC. CODE § 221.003(a).

This inquiry is based on the evidence presented to the trial court. After engaging in

this analysis, Section 221.012 dictates the action of the tribunal. Section 221.012,

titled “Tribunal’s Action on Contest,” provides that if a “tribunal hearing an election

contest can ascertain the true outcome of the election, the tribunal shall declare the

outcome.” Id. § 221.012(a). If, however, the tribunal “cannot ascertain the true

outcome of the election,” the tribunal “shall declare the election void.” Id.

§ 221.012(b).

Read together, these two provisions clarify that an election contestant must

first “allege and prove (1) particularized material irregularities in the conduct of an

election,” and after, the trial court will determine whether (2) the irregularities render

it impossible to determine the true outcome of the election. See Reese, 80 S.W.3d at

656 (explaining that “[a]fter the contestant has proved that illegal votes were cast in

the contested race,” pursuant to Section 221.012(b), “if the trial court can ascertain

the true outcome, it must declare the outcome,” but if the “trial court cannot ascertain

the true outcome of the election, it must declare the election void”) (emphasis

28
added); Guerra v. Garza, 865 S.W.2d 573, 576 (Tex. App.—Corpus Christi–

Edinburg 1993, writ dism’d w.o.j.) (stating contestants “must allege and prove

particularized material irregularities in the conduct of the election” and, separately,

“that the irregularities rendered impossible a determination of the majority of the

voters’ true will”).

Section 221.012(b) thus did not absolve Lunceford of her burden to establish

that 2600 eligible voters were unable to cast a vote in the Contested Race due to

ballot paper shortages—the alleged irregularity. See Guerra v. Ramirez, 364 S.W.2d

720, 724 (Tex. App.—San Antonio 1963, writ dism’d) (“The fact that a number of

witnesses are thereby necessary does not relieve the contestant of the heavy burden

he must carry to overthrow the presumption that the election officials discharged

their duty properly in rejecting the ballots.”).16

Lunceford cites to Gonzalez v. Villarreal, 251 S.W.3d 763 (Tex. App.—

Corpus Christi–Edinburg 2008, pet. dism’d) and Green v. Reyes, 836 S.W.2d 203

(Tex. App.—Houston [14th Dist.] 1992, no writ) in support of her argument.

Lunceford’s reliance on Gonzalez and Green is misplaced because the issue

16
Lunceford argues in her brief that “[n]owhere in the documentary or testimonial
evidence is there any proof whatsoever whether, and to what extent, any of the 2600
turned away voters ended up voting somewhere else.” But it was not Craft’s burden
to establish that these voters were able to cast a vote on Election Day; it was
Lunceford’s burden to establish they were unable to do so because of EAO’s
actions.

29
presented in those cases was whether the outcome of the contested elections could

be determined based on evidence that purported illegal votes had been cast in the

contested races.17 See TEX. ELEC. CODE § 221.003(a)(1) (stating court “shall attempt

to ascertain whether the outcome of the contested election, as shown by the final

canvass, is not the true outcome because. . . illegal votes were counted”).

Gonzalez and Green are also distinguishable because the contestants in those

cases challenged the legality of votes that had been cast in the contested races,

whereas Lunceford argues that the trial court should have concluded, based on

evidence that 2600 voters left twenty-four polling locations on Election Day, and

that all 2600 voters were unable to cast a vote on Election Day. If the 2022 General

Election had been a precinct-based election requiring voters to cast a vote at a

17
In Green, the contestant presented evidence that over 400 voters had cast a vote in
both the Republican and Democratic primaries in a congressional race rendering
those “crossover” ballots void. Green v. Reyes, 836 S.W.2d 203, 204 (Tex. App.—
Houston [14th Dist.] 1992, no writ). The trial court heard evidence “concerning the
voting conduct of 313 alleged crossover voters,” including testimony from 246
voters who appeared in person or through telephone depositions, and it concluded,
based on the evidence, that there had been 305 illegal crossover votes. Id. at 206.
For the remaining votes, the trial court found “there was no reliable way of
determining how the 126 unascertained votes should be considered to further adjust
the votes for each candidate.” Id. at 207. Similarly, in Gonzalez, the contestant
presented evidence that “voters who were not on the registration rolls and did not
have voter registration cards were allowed to vote with only their identification
cards.” Gonzalez v. Villarreal, 251 S.W.3d 763, 768 (Tex. App.—Corpus Christi–
Edinburg 2008, pet. dism’d). In determining whether the court could ascertain the
true outcome of the contested race based on the challenged votes, the court
concluded that “disheveled election records” made “it impossible to determine
whether those votes were legally cast and countable.” Id. at 768, 781. Thus, in both
Green and Gonzalez, the contestants presented evidence of the alleged irregularity.

30
designated precinct, Lunceford’s argument might carry more weight. But the

General Election was a countywide polling place election, allowing voters to vote at

any one of 782 election-day polling places. The evidence established that only

twenty-four of 782 polling places were affected by ballot paper shortages on Election

Day, that they were affected only during some portion of the day, that additional

ballot paper was delivered to some of these polling places, and that at some of these

affected polling places, voters were informed about nearby polling places at which

they could vote. Evidence that a person left a polling place on Election Day without

voting is thus not conclusive evidence that that voter was unable to cast a vote

elsewhere at one of the remaining 758 unaffected polling places on Election Day,

nor does it establish that the trial court’s finding on this issue was contrary to the

overwhelming weight of the evidence and clearly wrong.

“Given the state of the evidence,” the trial court found that “2600 voters who

tried to vote at their polling place of choice left without voting” due to “paper

shortages,” “estimated that 250 to 850 lawful voters did not cast votes because of

the EAO’s ballot-paper decision,” and took 850 of those voters into account when

considering whether it could “ascertain the true outcome of the election.” Because

Lunceford did not conclusively establish that 2600 eligible voters were unable to

cast a ballot on Election Day due to ballot paper shortages, the trial court did not

abuse its discretion by failing to factor all 2600 votes into account when considering

31
whether it could ascertain the outcome of the Contested Race. “The law is well

settled that irregularities in the conduct of an election which cannot be shown to have

materially affected the results of the election are immaterial.” Woods, 363 S.W.3d at

716 (quoting Kennelly v. Gates, 406 S.W.2d 351, 358 (Tex. Civ. App.—Houston

1966, no writ)).

After examining the record in light of Lunceford’s high evidentiary burden,

and “defer[ring] to the trial court’s decision that the evidence did not meet it,” we

conclude that Lunceford did not conclusively establish that 2600 voters were unable

to cast a vote on Election Day due to ballot paper shortages resulting from the EAO’s

failure to comply with Section 51.005 of the Election Code. Nor can we say that the

trial court’s failure to form a firm conviction or belief that 2600 voters were unable

to cast a vote on Election Day due to ballot paper shortages resulting from the EAO’s

failure to comply with Section 51.005 of the Election Code was contrary to the

overwhelming weight of the evidence and clearly wrong. See DeSpain, 672 S.W.3d

at 492 (legal sufficiency); Burns, 434 S.W.3d at 227–28 (factual sufficiency); see

generally City of Keller, 168 S.W.3d at 816 (stating matter conclusively established

only if reasonable people could not differ as to conclusions to be drawn from

evidence).

We overrule Lunceford’s first issue and the portion of Lunceford’s third and

fourth issues on this point.

32
B. Non-Ballot Paper Related Problems at Polling Places

In her second issue, Lunceford argues that in addition to the voters who left

polling places due to ballot paper shortages, she established through the DWQ

testimony of several election officials that an additional 411 potential voters left their

first polling place for reasons unrelated to ballot paper shortages, such as machine

malfunctions, poll workers’ inability to reach the EAO on the phone or by other

means, a lack of equipment or supplies, and other problems. Notwithstanding, she

argues the trial court “completely ignored” and failed to take these 411 voters into

account when it considered whether it could ascertain the true outcome of the

election.

In its final judgment and calculation of “affected votes,” the trial court did not

include the 411 voters who purportedly left their polling places for reasons unrelated

to ballot paper shortages. In its finding of fact number 17, the trial court stated:

From the evidence, the court finds that because of paper shortages 2600
voters who tried to vote at their polling place of choice left without
voting. These numbers do not include voters discouraged by long lines
who voted elsewhere due to machine malfunctions or paper jams, which
were not caused by EAO decisions.

(Emphasis added).

Contrary to Lunceford’s position, Craft argues that the trial court addressed

the 411 voters in this finding of fact when it found that the 2600 voters who left

polling places without voting due to ballot paper shortages did “not include voters

33
discouraged by long lines who voted elsewhere due to machine malfunctions or

paper jams, which were not caused by EAO decisions.” Craft argues the trial court

properly refused to consider these 411 voters who left a polling place without voting

because “there was no nexus between the cause of long lines and the conduct or

decisions of an election official,” and furthermore, “the evidence of those 411

potential voters suffers from all of the same flaws as the 2600 potential voters that

supposedly left for ballot paper reasons.”

We agree with Craft that in its findings of fact, the trial court implicitly

addressed the approximately 411 potential voters who left polling places for reasons

unrelated to ballot paper shortages, concluding they left the polling place without

voting for reasons “not caused by EAO decisions.” We also conclude that the trial

court did not abuse its discretion in rejecting Lunceford’s contention that the trial

court should have taken these 411 voters into account when considering whether the

outcome of the Contested Race, as shown by the final canvass, was not the true

outcome.

Under Section 221.003(a)(2), the “tribunal hearing an election contest shall

attempt to ascertain whether the outcome of the contested election, as shown by the

final canvass, is not the true outcome” because an election officer or other person

officially involved in the administration of the election “prevented eligible voters

from voting” or “engaged in other fraud or illegal conduct or made a mistake.” TEX.

34
ELEC. CODE § 221.003(a)(2)(A), (C). Lunceford did not argue that election officials

“prevented eligible voters from voting” or that election officials “engaged in fraud

or illegal conduct or made a mistake” with respect to the alleged problems at polling

places unrelated to ballot paper shortages. The trial court thus did not abuse its

discretion by failing to include in its calculation of “affected votes” the number of

“voters discouraged by long lines who voted elsewhere due to machine malfunctions

or paper jams, which were not caused by EAO decisions.” (Emphasis added).

Moreover, even assuming there was sufficient evidence that 411 potential

voters left a polling place without voting on Election Day due to non-ballot paper

shortages attributable to the EAO’s conduct, like the 2600 potential voters who left

a polling place without voting due to ballot paper shortages, Lunceford did not

conclusively establish that these 411 voters were unable to cast a vote elsewhere on

Election Day.18 Nor did she establish that the trial court’s finding on this issue was

contrary to the overwhelming weight of the evidence and clearly wrong.

We overrule Lunceford’s second issue.

18
Indeed, the only voter to testify at trial testified through a DWQ that he left three
polling locations without voting on Election Day for non-ballot paper related
reasons, but that he ultimately was able to cast a vote at a fourth polling place.

35
C. Reasonable Impediment Declarations (“RIDs”)

In her third issue, Lunceford argues there is legally and factually insufficient

evidence supporting the trial court’s finding that 350 illegal votes were cast by voters

who presented incomplete RIDs. She argues the correct number should have been

380 illegal votes based on incomplete RIDs.19

In its finding of fact number 44, the trial court stated:

The court concludes that 380 of the 532 challenged RIDs are so lacking
in the statutory information that they are improper, and votes cast by
these 350 voters should not have been counted.

(Emphasis added). Similarly, in its final judgment, the trial court held:

A RID is the voter’s chance to comply with the code’s effort to make sure that
voters can demonstrate who they are with documents. The court concludes
that 380 of the 532 challenged RIDs are so lacking in the statutory information
that they are improper, and votes cast by these 350 voters should not have
been counted.

(Second and third emphasis added).20

19
Under Section 63.001(b) of the Election Code, a voter must present to an election
officer at the polling place “(1) one form of identification listed in Section
63.0101(a); or (2) one form of identification listed in Section 63.0101(b)
accompanied by the declaration described by Subsection (i).” TEX. ELEC. CODE
§ 63.001(b). Under Section 63.001(i), if the requirement for identification
prescribed in Section (b)(1) is not met, “an election official shall notify the voter
that the voter may be accepted for voting if the voter meets the requirement for
identification prescribed by Subsection (b)(2) and executes a declaration declaring
the voter has a reasonable impediment to meeting the requirement for identification
prescribed by Subsection (b)(1).” Id. § 63.001(i).

36
Lunceford “assumes the Trial Court made a mistake and intended to say 380

instead of 350” and that her “view makes sense when viewed in concert with Finding

of Fact number 73, which adds up all the votes accepted by the Trial Court as

illegal.”21

It is unclear from the trial court’s finding of fact number 44 and from the

above-quoted final judgment language whether the trial court concluded that 380 or

350 “illegal votes” were cast based on its findings that the voters’ “RIDs [were]

lacking statutory information.” We agree with Lunceford, however, that given the

trial court’s conclusion that “a total of 2041 illegal votes” were cast, for that

“number[s] to add up correctly, 380 is required, not 350.” We thus agree with

Lunceford that the trial court’s finding that “350 voters should not have been

counted” is the result of a typographical error.

Because the trial court’s final calculation of “illegal votes” included the 380

“illegal votes” tied to incomplete RIDs, however, the trial court’s statement that “350

voters should not have been counted” did not cause the rendition of an improper

judgment or prevent Lunceford from presenting her case on appeal. Any such error

21
In its finding of fact number 73, the trial court stated: “Mistake and illegal-vote
findings. The court has estimated that 250 to 850 lawful voters did not cast votes
because of the EAO’s ballot-paper decision, which was ‘illegal conduct’ and also a
mistake under section 221.003. There were 2041 illegal votes as discussed above.
Assuming and using the largest estimated number (850), this yields a total of 2891
affected votes.” (Emphasis in original).

37
was thus harmless. See TEX. R. APP. P. 44.1(a) (court cannot reverse judgment in

civil case based on error unless error “probably caused the rendition of an improper

judgment” or “probably prevented the appellant from properly presenting the case

to the court of appeals”).

We overrule this portion of Lunceford’s third issue.

In her crosspoint on this issue, Craft argues that the evidence is legally and

factually insufficient to support the trial court’s finding that “380 RIDs constitute[d]

illegal votes.” She first argues that Lunceford waived the issue because she “never

contended that the votes tied to improper RIDs were ‘illegal’” but only complained

that the faulty RIDs “constituted ‘mistakes.’” Separately, Craft argues that “an

incomplete RID, in and of itself, [cannot] serve as the basis to disqualify [a] vote

attached to that RID” and the trial court ignored the “presumption in place that [an]

election judge working with the voter acted properly.” We do not reach these issues,

because even assuming, without deciding, that sufficient evidence supported the trial

court’s finding that 380 votes tied to incomplete RIDs were cast—an issue we do

reach—as we explain below, the trial court did not abuse its discretion in declaring

that the outcome of the election was the true outcome.

Voters on the Suspense List

In finding of fact number 67, the trial court stated:

Lunceford contended that 1995 voters whose names were on the
suspense list were permitted to vote without showing that they still

38
resided in the county. This contention was not proved to the court’s
satisfaction and it is respectfully denied.

In her third issue, Lunceford argues the trial court erred by failing to take into

consideration the votes of these 1995 voters because “the evidence conclusively

demonstrated that these 1,995 voters who cast a ballot without a Statement of

Residence (“SOR”) cast a vote that was illegal.” In other words, she complains about

the trial court’s failure to find that she proved that 1995 voters on the suspense list

cast illegal votes. Relying in part on the testimony from her expert, Steve Carlin,

Lunceford argues that she presented undisputed evidence that 2039 voters on the

official Roster had a suspense notation (“S”) next to their name and that 1995 of

those voters cast a vote in the General Election without submitting a SOR.22

Craft responds that the trial court properly found that Lunceford failed to bring

forth clear and convincing evidence that the 1995 voters on the suspense list cast

illegal votes because Lunceford did not present evidence establishing the date the

22
Section 63.0011 of the Election Code, titled “Statement of Residence,” provides that
“before a voter may be accepted for voting, an election officer shall ask the voter if
the voter’s residence address on the precinct list of registered voters is current and
whether the voter has changed residence within the county.” TEX. ELEC. CODE
§ 63.0011(a). If a “voter’s residence address is not current because the voter has
changed residence within the county, the voter may vote, if otherwise eligible” but
“[b]efore being accepted for voting, the voter must execute and submit to an election
officer a statement” that includes “a statement that the voter satisfies the applicable
residence requirements,” “all of the information that a person must include in an
application to register to vote under Section 13.002,” and the “date the statement is
submitted to the election officer.” Id. § 16.0011(b)–(c). The statement must also
“include a field for the voter to enter the voter’s current county of residence.” Id.
§ 16.0011(c-1).

39
voters were placed on the suspense list, ruling out that the voters voted using a

provisional ballot, accounting for any voters who were mistakenly placed on the

suspense list, determining whether any voter had cured their suspense status, or

proving how many of the challenged voters cast a ballot in the Contested Race.

According to Craft, Carlin’s methodology was critically flawed because, among

other things, he never considered whether any of the voters on the suspense list had

cast a vote in the General Election using a provisional ballot and he failed to verify

that the voters’ registrations were suspended when they voted on Election Day.

A. Applicable Law

Section 15.081 of the Election Code, titled “Suspense List,” provides that the

“registrar shall maintain a suspense list containing the name of each voter: (1) who

fails to submit a response to the registrar in accordance with Section 15.053;23 (2)

whose renewal certificate is returned to the registrar . . . or (3) who appears on the

list of nonresidents of the county provided to the registrar . . . .” TEX. ELEC. CODE

§ 15.081(a). The registrar is required to “enter the notation ‘S’, or a similar notation

approved by the secretary of state, on the list of registered voters beside each voter’s

name that also appears on the suspense list.” Id. § 15.111.

23
Section 15.053 provides that a “voter shall submit to the registrar a written, signed
response to the notice that confirms the voter’s current residence.” TEX. ELEC. CODE
§ 15.053(a).

40
A “voter whose name appears on a precinct list of registered voters with the

notation ‘S’” may cast a vote in “an election held on or after the date the voter’s

name is entered on the suspense list” if the “voter satisfies the residence

requirements prescribed by Section 63.0011 and submits a statement of residence

in accordance with that section.” Id. § 15.112.

B. Analysis

On December 8, 2022, Harris County released the official Roster for the 2022

General Election.24 Relying exclusively on the Roster, Carlin testified that 2039

voters on the Roster were on the suspense list. Carlin acknowledged that the Roster

contained a lot of inaccurate and missing information. Despite these shortcomings,

Carlin relied exclusively on the Roster to compile the list of 2039 voters on the

suspense list. Carlin, who did not verify when each voter’s registration was

suspended, assumed that when the voters cast their vote on Election Day—

November 8, 2022—the voters’ registration was in suspense status. When he

compared the suspense list with the SOR data transcribed by his team of volunteers,

which he admitted at trial was not “100 percent accurate,” Carlin determined that of

the 2039 voters on the suspense list, eighty-eight had submitted a SOR before casting

24
Lunceford states in her brief that the Harris County Voter Roster is a “list of
everyone who voted in the November 8, 2022 General Election,” while Craft states
that the Roster “indicates the number of people who checked in at a polling location,
but that does not necessarily reflect votes because it does not include who left after
checking in without voting (‘fleeing votes).’”

41
a vote in the General Election. Because Carlin was unable to match the remaining

1995 voters on the suspense list with a SOR, Lunceford argues those voters had cast

an illegal vote.

Carlin admitted that he did not use the most reliable method to match a voter

on the suspense list with the SOR data because he only had a Voter Unique Identifier

(VUID”) for 100 or so of the approximately 40,000 SORs in the database. Carlin

testified that he was not aware that a voter on the suspense list may cast a vote with

a provisional ballot, and he did not compare the list of suspense voters with the

provisional ballots cast on Election Day.

Beth Stevens, Craft’s expert, testified that a person on the suspense list can

cast a vote using a provisional ballot without submitting a SOR. She also testified

that the Roster reflects only the number of people who checked in at a polling place

on Election Day, not the number of people who actually cast a ballot.25 She testified

that Carlin’s comparison of the suspense list with the SOR data was also flawed

because Carlin and his team did not have VUIDs for every voter who submitted a

SOR, allowing them to match a voter on the suspense list with a submitted SOR.

25
One election official testified through DWQs that his polling place was unable to
process voters for forty-five minutes because their scanner was broken and
“[s]everal people waited in line to cast their ballots but others that were discouraged
by the long wait time, left with their ballots in hand.” He knew of one voter who left
with her ballot but returned to the polling place later after the scanner was working
to cast her ballot.

42
In addition to creating a suspense list based on the Roster, Carlin testified that

he relied exclusively on the Roster to compile a list of voters whose registration had

been cancelled as of Election Day. Like the suspense list, Carlin assumed that the

voters’ registration was in cancelled status when they voted on Election Day because

there was a “C” in the status column next to their name. The record reflects that

Carlin’s cancellation list was inaccurate because only five of the 2970 voters on his

list had their registration cancelled prior to Election Day. The remaining 2965 voters

were placed on the cancellation registration list after the General Election.26

Although Lunceford argues on appeal that the Roster is “a snapshot of what

occurred on the day the voter voted” and “[t]hus, by definition, each of these voters

were on the suspense list at the time they presented themselves to the Qualifying

Table for voting,” Lunceford did not submit evidence that the Roster was an accurate

reflection of a voter’s status on Election Day. Moreover, the record reflects that the

Roster, which was released a month after the General Election, does necessarily

reflect a voter’s status on Election Day, as demonstrated by the numbers of cancelled

voters who appear on the list but whose voter registration was cancelled after

Election Day.27

26
As a result, Lunceford withdrew those 2695 voters from her election contest.
27
Lunceford’s counsel argued during oral argument that although a voter may be
placed on the cancellation list after the election but before the official roster is
released one month later, the suspense list is “determined in the fall” and “the books

43
Lunceford also responds that she was not required to rule out all possible

scenarios in which a voter on the suspense list could have voted legally, such as

voting with a provisional ballot affidavit, because “it was not necessary to disprove

a negative.” In an election contest, however, the contestant “has the burden of

proving a negative proposition—that a challenged vote is not legal.” Rivera v. Lopez,

No. 13-14-00581-CV, 2014 WL 8843788, at *3 n.2 (Tex. App.—Corpus Christi–

Edinburg May 14, 2014, no pet.) (mem. op.). It is the appellate court’s “duty [to

then] determine on what potential basis an uncounted vote may have been legal, then

close in about October” in advance of early voting. According to Lunceford’s
counsel, “So 100% of everybody who had an S on the voter roster had the S on the
date of the election and in fact had it probably 45 days earlier than the date if the
election because of the way the S notation works.” This argument was not made to
the trial court and no evidence supporting it was before the trial court when it
rendered its final judgment. We have not found, and Lunceford has not directed us
to, any evidence in the record establishing this fact or explaining that a person’s
suspense status does not change between election day and the date the official roster
is released. Rather, the only evidence before the trial court, and before us on appeal,
is that Carlin compiled his suspense list and cancellation list from notations in the
Roster and that some of the voters on Carlin’s cancelation list had their registration
cancelled after Election Day, thus indicating that the Roster and Carlin’s
corresponding lists were not a reliable and an accurate reflection of a voter’s status
on Election Day.
We note that the Election Code provides that people are added to the suspense list
on a monthly basis. See TEX. ELEC. CODE § 15.081(a)(3) (stating “registrar shall
maintain a suspense list containing the name of each voter. . . who appears on the
list of nonresidents of the county provided to the registrar under Section 62.114,
Government Code”); TEX. GOV’T CODE § 62.114 (a)–(b) (requiring clerk of court
to “maintain a list containing the name and address of each person who is
disqualified under this subchapter from jury service because the person is not a
resident of the county” and send on “the third business day of each month. . . a copy
of the list of persons disqualified in the previous month because the persons do not
reside in the county” to county’s voter registrar and secretary of state).

44
review whether [the contestant] presented evidence that the vote was illegal” before

applying “the traditional rule of legal sufficiency review.” Id.

As the person contesting the election, it was thus Lunceford’s burden to prove

that the 1995 voters on the suspense list cast illegal votes. She did not meet her

burden. Lunceford’s expert did not consider how many voters on the suspense list

could have voted with a provisional ballot, whether any of the challenged voters had

cured their suspense status, or the date on which the voters were placed on the

suspense list. As the sole factfinder, the trial court could have reasonably determined

that Carlin’s suspense list and cross-reference efforts, like the cancellation list, were

inaccurate and that Carlin’s testimony that 1995 voters had cast an illegal vote

because they were on the suspense list was similarly flawed and disregarded Carlin’s

testimony on this issue. Gilbreath, 682 S.W.3d at 507 (stating when clear and

convincing evidence standard applies, courts “assume the fact finder resolved any

disputed facts in favor of its finding if a reasonable fact finder could have done so

and we disregard all evidence that a reasonable fact finder could have disbelieved”).

After examining the record in light of Lunceford’s high evidentiary burden,

and “defer[ring] to the trial court’s decision that the evidence did not meet it,” we

conclude that Lunceford did not conclusively establish that 1995 illegal votes were

cast in the General Election by voters on the suspense list, nor can we say that the

trial court’s failure to form a firm conviction or belief that1995 illegal votes were

45
cast in the General Election by voters on the suspense list is contrary to the

overwhelming weight of the evidence and clearly wrong. See DeSpain, 672 S.W.3d

at 492 (legal sufficiency); Burns, 434 S.W.3d at 227–28 (factual sufficiency); see

also City of Keller, 168 S.W.3d at 816 (stating matter conclusively established only

if reasonable people could not differ as to conclusions to be drawn from evidence).

We overrule this portion of Lunceford’s third issue.

Whether Outcome of Final Canvas is True Outcome of Contested Race

The ultimate question before the trial court was whether the court was able to

“ascertain the true outcome of the election” based on the evidence presented. TEX.

ELEC. CODE § 221.012(b) (stating if trial court “can ascertain the true outcome of the

election, the [trial court] shall declare the outcome”); id. § 221.012(a) (stating trial

court “shall declare the election void if it cannot ascertain the true outcome of the

election”).

According to the final canvass, 1,064,677 voters cast a ballot in the Contested

Race. Craft received 533,710 while Lunceford received 530,967, resulting in a

margin of victory of 2743 votes. In its final judgment, the trial court concluded that

“a total of 2041 illegal votes” had been cast in the General Election based on several

46
alleged irregularities.28 29 The trial court also concluded that between “250 to 850

votes were not cast due to the EAO’s ballot paper decision, which was illegal

conduct and also a mistake.”

28
In footnote 22 to Finding of Fact No. 71, the trial court accounted for the following
“illegal votes:” “[v]oting by out-of county residents (1236), provisional ballots (43),
mail ballots (45), photo identification (380), erroneous instructions to the SVC (7),
instructions for unscannable ballots (zero), mistakes regarding TRO (325), and
voting after registration was cancelled (5). These findings . . . equal 2041 illegal
votes.”
29
Lunceford argues that the trial court “correctly concluded that” the 325 net votes
cast for Craft during the extended hour of voting on Election Day “were illegal
votes” and thus Section 221.011 of the Election Code required the trial court to
subtract the votes from the margin of victory. On the contrary, in Conclusion of Law
Nos. 32 and 34, the trial court concluded that agreeing “to the extension was not
illegal’ and that the “325 net votes for Craft resulted from the EAO’s mistaken
approval of the extra hour.” (Emphasis in original). Section 221.011(a) only applies
to illegal votes. See TEX. ELEC. CODE § 221.011(a) (stating if trial court can
ascertain candidate for whom illegal vote was cast, court “shall subtract the vote
from the official total for the candidate . . . as applicable”). Thus, assuming, without
deciding, that the trial court correctly found that the EAO made a “mistake” by
agreeing to the extended hour of voting on Election Day, the trial court did not err
by not subtracting the 325 votes from Craft’s margin of victory. To the extent that
footnote 22 to Finding of Fact No. 71 conflicts with Conclusions of Law Nos. 32
and 34, we must construe them together and if possible, in harmony with the
judgment. A finding of mistake is consistent with the trial court’s inclusion of the
325 votes with the “affected votes,” as opposed to subtracting them from the margin
of victory. Construing footnote 22, Finding of Fact No. 71, and Conclusion of Law
Nos. 32 and 34 together, we conclude that the trial court found that the 325 votes
were the result of a mistake, not “illegal votes.” See Tex. Outfitters Ltd., LLC v.
Nicholson, 534 S.W.3d 65, 74 (Tex. App.—San Antonio 2017), aff’d, 572 S.W.3d
647 (Tex. 2019) (“[F]indings of fact and the conclusions of law will be construed
together; and if the findings of fact are susceptible of different constructions, they
will be construed, if possible, to be in harmony with the judgment and to support
it.”).

47
Taking the 2041 illegal votes and “using the largest estimated number [of

votes not cast] (850),” the trial court concluded that there had been a total of “2,891

affected votes” in the General Election and that of those total votes, 2779 votes had

been cast in the Contested Race

As part of her fourth issue, Lunceford argues that the “trial court was required

to find that [she] was not and is not required to demonstrate whether an illegal vote

was cast and counted in the Contested [Race] to be afforded a new election.” She

argues that pursuant to Section 221.009(b) of the Election Code, a tribunal may reach

its decision without attempting to determine how individual voters voted so long as

the number of illegal votes is equal to or greater than the number of votes necessary

to change the outcome of an election. We disagree that Section 221.009(b) dispenses

with Lunceford’s burden to establish that illegal votes were cast in the Contested

Race.

The trial court in an election contest “shall attempt to ascertain whether the

outcome of the contested election, as shown by the final canvass, is not the true

outcome.” See TEX. ELEC. CODE § 221.003(a). In a multi-county race, the contestant

has the burden of proving that illegal votes were cast in the specific contested race.

See Reese, 80 S.W.3d at 656 (stating in multi-race election, contestant “must first

show that (1) illegal votes were counted or (2) an election official prevented eligible

voters from voting, failed to count legal votes, or engaged in other fraud, illegal

48
conduct or mistake,” and “must next show the illegal votes were cast in the race

being contested”); Medrano v. Gleinser, 769 S.W.2d 687, 688 (Tex. App.—Corpus

Christi–Edinburg 1989, no writ) (“The burden of proving illegality in an election

contest is on the contestant, who must prove that illegal votes were cast in the

election being contested and that a different and correct result would have been

reached by not counting the illegal vote.”); Miller v. Hill, 698 S.W.2d 372, 375 (Tex.

App.—Houston [14th Dist.] 1985, writ dism’d w.o.j.) (reversing trial court’s

judgment voiding county sheriff’s election because no evidence established that

illegal votes were cast in contested race).

Section 221.009(a) does not provide otherwise. Section 221.009(a) permits a

trial court to compel a voter who has cast an illegal vote “to disclose the name of the

candidate for whom the voter voted or how the voter voted on a measure if the issue

is relevant to the election contest.” TEX. ELEC. CODE. § 221.009(a) (emphasis added).

Section 221.009(b) states that, “[i]f the number of illegal votes is equal to or greater

than the number of votes necessary to change the outcome of an election, the tribunal

may declare the election void without attempting to determine how individual voters

voted.” Id. Under Section 221.011(a), if the trial court “can ascertain the candidate

or side of a measure for which an illegal vote was cast,” it must “subtract the vote

from the official total for the candidate or side of the measure, as applicable.” Id.

§ 221.011(a) (emphasis added). If, however, the trial court “finds that illegal votes

49
were cast but cannot ascertain how the voters voted, the tribunal shall consider those

votes in making its judgment.” Id. § 221.011(b). In the context of Sections

221.009(a) and 221.011(a), the references to “how voters voted” are thus references

to the name of the candidate or side of a measure for which a voter voted—not

whether the voter voted in the contested race.30

Recognizing that in an election contest, a tribunal must consider only those

votes cast in a contested race, the trial court found that while 2891 votes in the

General Election had been “affected,” “[n]ot all of the 2891 would have been cast in

the Lunceford vs. Craft contest.” Explaining there had been “a 3.86% undervote in

the race for the189th District Court,” the court held that “roughly the same undervote

percentage in the [Contested Race] would have occurred with the affected votes—

[that] 96.14% of the 2041 illegal votes (plus the estimated 850 that were deterred

from voting by the ballot paper decision) would have been cast in the [Contested

30
Lunceford also relies on findings of fact and conclusions of law entered by the trial
court in Leal v. Peña, No. 2020-DCL-06433 in the 107th District Court of Cameron
County, Texas. Although the court of appeals affirmed the trial court’s judgment in
that case, the appellate court’s opinion did not discuss the findings of fact and
conclusions of law upon which Lunceford relies. Nor did the court affirm the trial
court’s judgment based on those findings and conclusions. See Peña v. Leal, No.
13-22-00204-CV, 2023 WL 3116752 (Tex. App.—Corpus Christi–Edinburg Apr.
27, 2023, pet. denied) (mem. op.).

50
Race].” Thus, the trial court concluded that a total of “2779 votes in the 189th

[Contested Race] (96.14% of 2891) [had been] affected.”31 32

The court found that while the “2779 affected votes slightly exceed[ed] Craft’s

margin of victory, 2743” the number of affected votes was “not large enough to put

the true outcome [of the Contested Race] in doubt.” Contrasting this case to Green

v. Reyes, 836 S.W.2d 203 (Tex. App.—Houston [14th Dist.] 1992, no pet.), where

the trial court held it could not ascertain the true outcome of the election because the

31
In her third issue, Lunceford argues the trial court correctly analyzed the undervote
percentage and she does not challenge that portion of the trial court’s findings. She
argues, however, that the trial court erred by applying the undervote percentage to
the 325 net votes cast for Craft during the extended hour of voting on Election Day.
We agree. The purpose of the undervote calculation was to calculate the number of
“affected” votes cast in the Contested Race. The trial court had before it the total
number of votes cast during the extra hour of voting in the Contested Race and it
knew for whom they had been cast because the Supreme Court of Texas ordered
that those provisional ballots be segregated and separately counted. Excluding the
325 votes, the trial court found that a total of 1716 “illegal votes” and up to 850
votes were not counted due to alleged mistake or illegal conduct, resulting in a total
count of 2566 “affected votes.” Applying the undervote percentage to that number
would yield 2467 “affected votes” in the Contested Race, and adding the 325 votes
to that total number would result in “2792” total “affected votes.” That is only a
thirteen-vote difference compared to the trial court’s calculation of “2779 affected
votes.” We thus conclude that the trial court’s error was not material because it only
results in a thirteen-vote difference.
32
Craft argues in a crosspoint that the trial court abused its discretion in applying the
undervote percentage to calculate the number of affected votes in the Contested
Race because there was no expert testimony or other evidence supporting the trial
court’s application of the undervote percentage across all categories of challenged
votes to determine the number of “affected votes” in the Contested Race. Because
it is not necessary to our disposition, we do not address this issue, nor do we express
an opinion on the sufficiency or correctness of the trial court’s decision to apply the
undervote percentage to calculate the number of affected votes in the Contested
Race.

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number of illegal votes was roughly three times as large as the margin of victory, the

trial court concluded that “2779 illegal votes [was] not enough to make the true

outcome unknowable in an election with a 2743-vote margin in the canvassed final

result.” The trial court denied Lunceford’s contest and declared “Craft’s victory in

the contest for Judge of the 189th District Court [] to be the true outcome.”

Given the number of votes cast in the Contested Race, and the number of votes

the trial court concluded were “affected” in the Contested Race, we cannot say that

the trial court abused its discretion by finding that it could ascertain the true outcome

of the Contested Race because the number of affected votes was not large enough to

put the true outcome in doubt. See Woods, 363 S.W.3d at 716 (“The statute, however,

expressly leaves the discretion to make such a declaration to the trial court.”).

We hold the trial court did not abuse its discretion by finding that Craft’s

victory over Lunceford in the Contested Race, as set forth in the final canvas, was

the true outcome of the Contested Race and denying Lunceford’s election challenge.

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Conclusion

We affirm the trial court’s judgment.33 34

Veronica Rivas-Molloy
Justice

Panel consists of Justices Rivas-Molloy, Gunn, and Morgan.

Morgan, J., concurring.

33
Because we affirm the trial court’s judgment, we do not consider Craft’s remaining
crosspoints.
34
Our opinion should not be construed as a finding of sufficiency or correctness on
any of the trial court’s findings of fact and conclusions of law not expressly resolved
by our opinion or the merits of this appeal.

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