CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/9/2023 1

Provisional Ballots for a Judicial Election in Texas 

Texas Democratic Party v. Bettencourt 

(Gray H. Miller, S.D. Tex. 4:08-cv-3332) 

Six days after the 2008 general election, the Democratic candidate 

for a state judgeship was a few hundred votes behind his opponent. 

The trailing candidate filed a federal complaint seeking prompt resolution of several thousand provisional and absentee ballots. Two 

days later, the district court denied the plaintiff immediate relief. 

An amended complaint more generally challenging county procedures for voter registration and provisional ballots resulted in a 

2012 settlement. 

Subject: Provisional ballots. Topics: Provisional ballots; absentee 

ballots. 

Six days after the 2008 general election, the Democratic candidate for a state 

judgeship was a few hundred votes behind his opponent, and several thousand provisional and absentee ballots remained to be verified.1

 The Democratic candidate and the trailing Party filed a federal action in the Southern 

District of Texas against t Harris County’s tax assessor-collector and voter 

registrar to compel resolution of the unresolved ballots.2 On the following 

day, the plaintiffs filed a motion for immediate and permanent injunctive 

relief.3

Judge Gray H. Miller heard the plaintiffs’ motion on November 12, the 

case’s third day,4

 and Judge Miller denied the plaintiffs immediate relief.5 On 

November 14, the Houston Chronicle reported that the counting of additional votes reduced but did not erase the Republican candidate’s lead.6

An amended complaint filed on December 1 added four Harris County 

voters as plaintiffs and challenged the validity of the county’s procedures for 

voter registration and provisional ballots.7 Judge Miller issued a conditional 

dismissal of the action as settled on November 2, 2009.8 On September 2, 

2010, the plaintiffs filed a new complaint with a motion to enforce the settlement agreement.9

 By April 2, 2012, the matter had settled.10

1. See Alan Bernstein, Dems Sue Registrar Over Votes for Judges, Hous. Chron., Nov. 12, 

2008, at B1; County-by-County Results, Hous. Chron., Nov. 6, 2008, at B6 (547,091 to 

547,442). 

2. Complaint, Tex. Democratic Party v. Bettencourt, No. 4:08-cv-3332 (S.D. Tex. Nov. 

10, 2008), D.E. 1. 

3. Motion, id. (Nov. 11, 2008), D.E. 3. 

4. Docket Sheet, id. (Nov. 10, 2008) (D.E. 4). 

5. Id. 

6. Alan Bernstein, Special Ballots Change Nothing, Hous. Chron., Nov. 14, 2008, at B1. 

7. Amended Complaint, Tex. Democratic Party, No. 4:08-cv-3332 (S.D. Tex. Dec. 1, 

2008), D.E. 10. 

8. Order, id. (Nov. 2, 2009), D.E. 57. 

9. Petition, id. (Sept. 2, 2010), D.E. 59. 

10. Docket Sheet, supra note 4. 
Provisional Ballots for a Judicial Election in Texas 

2 Federal Judicial Center 10/9/2023 

The Democratic candidate’s efforts in state court to overturn the election 

results were unsuccessful.11

11. See Alan Bernstein, Defeated Candidate Eyes Ballot Glitches, Hous. Chron., Jan. 9, 

2009, at B1; Alan Bernstein, Democrat Contests 230-Vote Loss for Judge Seat, Hous. Chron., 

Dec. 12, 2008, at B4; Brian Rogers, Candidate Will Not Appeal Ruling to Dismiss Election 

Suit, Hous. Chron., July 1, 2009, at B2.