Congressional candidate Gina Ortiz Jones addresses members of the media as her campaign for U.S. House seat 23 continues.
Democratic congressional candidate Gina Ortiz Jones, who trailed incumbent Will Hurd by 1,150 votes on election night, is looking for additional votes from valid provisional ballots. Credit: Scott Ball / San Antonio Report

A judge ruled Tuesday that Bexar County election officials will not have to immediately provide a list of provisional voters to Gina Ortiz Jones’ campaign, which had accused the county of disenfranchising voters by withholding the information.

However, it’s unclear whether receiving the list would make any difference for Jones in her tight race for the 23rd Congressional District seat held by Republican Rep. Will Hurd. The most recent election results show Hurd with a 1,150-vote lead over Jones in the district that spans 29 counties from San Antonio nearly to El Paso.

Provisional ballots are still being counted. At least 107,809 votes were cast in Bexar County in the race, including 2,257 for Libertarian candidate Ruben Corvalan.

In a state district court hearing Tuesday, Bexar County Elections Administrator Jacquelyn Callanen testified that none of the provisional ballots received from Bexar County voters in District 23 were cast on a provisional basis because the voter lacked valid identification.

Only voters that did not have valid identification at the polls could have visited the elections offices after Election Day to make sure they had their ballots cast, or “cured,” before a critical 5 p.m. deadline Tuesday.

Following the hearing, State District Judge Stephani Walsh ruled in Bexar County’s favor, saying elections officials did not have to immediately turn over any lists of precinct-by-precinct provisional voters. The Jones campaign also had sought a 48-hour extension to the deadline to “cure” provisional ballots.

Callanen and lawyers representing Bexar County told the judge that they intend to provide the list after all provisional ballots have been counted.

Election officials continue to review those ballots and determine whether each should be counted. Besides identification, other reasons a voter might have been required to cast a provisional ballot on paper include not being registered or showing up at the wrong precinct on Election Day.

At a press conference before the hearing, Jones said her campaign is seeking a document “that should be a matter of public record.” They don’t how many votes remain uncounted, she said.

“We don’t know that number; that’s why we asked the question,” Jones said. “That’s why we continue to ask that the list of provisional voters be released.”

At an event Monday, Hurd sounded like he had some idea, but he did not specify a number.

“We should count all the votes, but also the votes that are left to be counted is less than the number of votes that I’m up,” Hurd told the Rivard Report. “I feel good that once all the votes are counted, I’m going to continue to have this lead.”

At the hearing, details emerged about how Bexar County election officials count and keep track of provisional votes.

Staffers and lawyers for the Jones campaign have said that Bexar County must provide precinct-by-precinct lists of provisional voters. Callanen told the court that Bexar County has 121 precincts that fall within the 23rd Congressional District.

Questioned by Jones’ lawyers on the witness stand, Callanen did not dispute their assertion that election judges are required to keep a list of provisional voters in addition to placing all paper provisional ballots in a sealed bag to be sent to her office.

However, Callanen testified that she often does not receive lists of provisional voters from all precincts. She maintained that all provisional ballots are properly collected, received, and counted.

That’s why, when the Jones campaign last week had asked for lists at the precinct level, Callanen said those lists don’t exist. In court, she said she does not have the power to force election judges to create the lists and send them to her office. Bexar is the most populous county in the sprawling congressional district.

“I have no way to enforce that,” Callanen said.

Jones campaign attorney Isabel de la Riva questioned how campaign officials could be sure that all provisional voters had been dealt with properly.

“There’s no way to confirm that information with an administration that’s not complying with the law,” de la Riva said.

Other counties did provide the Jones campaign with provisional voter lists. At the press conference, Jones said she had received them from “not every other county, but several counties,” including El Paso and Maverick counties.

Chris Gober, an attorney for the Hurd camp, told the judge that the Jones campaign simply wanted “the ability to engage in what I would call a chase program” to “communicate with those people and try to ensure that they vote.”

The fight could foreshadow a recount in the race. Texas Secretary of State officials have said the margin is close enough for either side to request a recount.

Reporter Jackie Wang contributed to this story.

Brendan Gibbons is a former senior reporter at the San Antonio Report. He is an environmental journalist for Oil & Gas Watch.