State appeals court overturns 2022 election results in tiny Texas county

EL PASO, Texas (CN) — The Texas Eighth Court of Appeals overturned results in a third race in the November 2022 general election in Loving County, Texas, the least-populous county in the United States, after a district court overturned two other close races in a 2023 ruling.

This sparsely populated pocket of Texas has a 2020 census population of just 64 in the 671-square-mile county — “home to more wildlife than voters” as Justice Lisa Soto of the Eighth Court of Appeals commented in the court's opinion.  “There, perhaps more than anywhere, does the maxim ‘every vote matters’ ring true.”

That is why three losing candidates in the county’s 2022 general election sued the winners over the extremely close results. The candidate for County and District Clerk had lost by just 12 votes, while the race for Precinct 2 Commissioner came down to a mere six. And the race for Justice of the Peace ended in a dead tie with a 2-vote margin in the runoff.

Their particular challenge focused on the actual residency of 26 of the roughly 110 registered voters in the tiny county.

In its 2-1 decision published Friday, Soto, writing for the majority, agreed that 10 people of those contested people had not made Loving County their legal residence at the time they cast their vote.

Soto was joined in the majority opinion by Chief Justice Jeff Alley. Justice Gina M. Palafox dissented.

"Determining residency under the Election Code has long depended on several factors, including a person’s volition, intent, and action," Soto wrote.

All ten people whose votes were thrown out had ties to the county, and visited to varying degrees, but they had designated addresses outside the county as their primary residence on various documents, from driver’s licenses to utility bills.

They could have moved permanently to Loving County, and many of them wanted to, but they did not fully do so prior to the election, making it an incomplete action, Soto said, regardless of volition and intention.

What exactly constitutes ‘residency’ under the Texas Election Code has always been vague. The law as it stands, Section 1.015, defines residence as “one’s home and fixed place of habitation to which one intends to return after any temporary absence." And though it offers five further notes of clarification, it’s still vague enough to leave room for this kind of dispute.

Judge David Rogers of the Midland County District Court ruled in December 2023 that under the terms of Texas election law, 10 illegal votes had been counted in the election while two voters had been legally barred from participating.

He then ordered a redo of the elections for Justice of the Peace and Precinct 2 Commissioner, since the margin of victory in both elections was less than ten. But Rogers upheld the results of the County and District Clerk election, since a 12-vote margin of error still left the incumbent with the win after removing the illegal votes.

However, the appeals court overruled Rogers’s decision on the two people prevented from voting in the local races.

Both of them updated driver’s licenses and voter registration to their Loving County addresses after they moved there in August 2022 — demonstrating “volition, intention, and action” — but they were given limited ballots due to not being on the voter rolls when they came to vote. As such, Soto said, they should have been allowed provisional ballots to cast their vote in the local races, and Rogers wrongly held that the limited ballots were proper.

The appeals court overruled Rogers' decision not to order a redo of the County and District Clerk election.

“Upon subtracting the number of voters who illegally cast ballots and adding the two eligible voters who were improperly prevented from voting in the Loving County and District Clerk race, the differential now equals the margin of error in that race (12)," Soto wrote. "Accordingly, we remand the proceeding for the trial court to void that election and order a new election for Loving County and District Clerk as well.”

Though the challenge fell roughly along party lines, with three Republican candidates suing two Democrats and one unaligned candidate, the case lacked the usual tenor of the Republican Party’s national talking points and strategy around election disputes. But it was by no means any less heated; Loving County is no stranger to election disputes, with many often down to family feuds over partisan politics.