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 How to Make Sense of Election Night
We will all know by Thursday or Friday the election results (we pray the Presidential race does not drag on for weeks in the courts while provisional ballots from Ohio or Florida are fought over). It may be a while tonight before we know who won nationally or locally.
What to Watch for Tuesday Night in Local Races
In Harris County, per GOP Chairman Jared Woodfill, the early indicator will be how much the Democrats win the early vote by. This year, the early vote should be over 60% of the total vote (a record). In the last few elections, the Democrats won the early vote but lost the votes cast on election day. So, if the Democrats do not win the early vote by at least 30,000, the Republicans are likely to sweep the county.
A poll conducted October 17-27 (before Super Storm Sandy) by a Rice Professor for KHOU 11 News and KUHF Houston Public Radio showed Obama leading Romney in Harris County 46% to 42%. In the U.S. Senate race, Democrat Paul Sadler had 44 percent to barely lead Republican Ted Cruz, who had 42 percent in Harris County. However, Republican crossover voters were helping push Democratic Sheriff Adrian Garcia to 51 percent ahead of his Republican challenger Louis Guthrie's 32 percent. On the other hand, many Democrats told pollsters they planned to vote for Republican district attorney candidate Mike Anderson, who's polling at 41 percent with his somewhat unusual Democrat opponent Lloyd Oliver fairly close behind with 35 percent.
This year, 700,216 people showed up to vote early in person in Harris County for the 2012 general election. That's 3.2 percent more than the then-record shattering 678,312 who voted early in the November 2008 election.
A reminder of the 2008 Harris County General Election Results when Obama barely won the county:
President
Candidate Party Votes Pct
John McCain REP 571,883 48.81%
Barack Obama DEM 590,982 50.44%
Bob Barr LIB 6,783 0.57%
Race Total 1,171,472
U.S. Senator
Candidate Party Votes Pct
John Cornyn REP 544,857 47.33%
Richard J. Noriega DEM 583,782 50.71%
Yvonne Adams Schick LIB 10,694 1.96%
Race Total 1,151,174
District Attorney
Candidate Party Votes Pct
Pat Lykos REP 563,431 50.21%
C.O. Bradford DEM 558,647 49.79%
Race Total 1,122,078
County Sheriff
Candidate Party Votes Pct
Tommy Thomas REP 495,246 43.72%
Adrian Garcia DEM 637,588 56.28%
Race Total 1,132,834
11th Judicial District - typical down ballot judicial race in which a long time Republican incumbent lost
Mark Davidson (R) 538,996 48.80%
Mike Miller (D) 565,464 51.20%
1,104,460
National Polls and Predictions
National opinion polls sway donors and fire up or discourage supports and give reporters something to talk about but national public opinion polls do not decide U.S. Presidential elections - the Electoral College does. That being said, five the eight national surveys released over the weekend show Obama ahead and three show a tie. That is a big change from just two weeks ago. The Pew survey, which has predicted the final popular vote percentages exactly in the last two presidential contests, shows Obama ahead by three percent. All pollsters now find it difficult to accurately predict voting because so many households only have cell phones and pollsters cannot call cell phones and because changing voting allegiances make it hard to model how many likely voters consider themselves Democrats and how many Republicans this year. However, it appears that there is a late swing back toward Obama.
The election eve forecasts from the more reputable forecasters are as follows for the Electoral College (270 needed to win):
Electoral-vote.com Obama 294 Romney 220 Ties 24
Politico.com Obama 303 Romney 235
FiveThirtyEight.com Obama 303 Romney 235
www.intrade.com Odds Obama wins 67.9% Romney: 32.9%
It's the Electoral College Stupid!
Al Gore will confirm that winning the popular vote nationwide does not make one the President. It takes 270 votes to win the Electoral College. This election night starts with 41 states safely locked into Romney's or Obama's columns and only nine swing states in play.
Safe Obama states 237
Safe Romney states 191
The most recent surveys of the 9 swing states show the following likely outcomes Tuesday night:
Colorado (9) -- Too close to call
Florida (29) -- Romney (but 2 of 4 most recent polls say it is a tie)
Iowa (6), Nevada (6), New Hampshire (4) -- Obama
North Carolina (15) -- Romney (Public Policy Polling's last survey over the weekend says North Carolina is tied, but Romney has led in all recent polls before storm Sandy)
Ohio (18), Virginia (13), Wisconsin (10) -- Obama
Totals based on most recent swing state polls:
Obama 294 Romney 234 Undecided 9
Romney cannot win unless he wins Florida and North Carolina plus Ohio and one other big state like Virginia or Wisconsin. If Obama wins Ohio and either Nevada or Iowa as currently projected, Romney would have to win all of the other swing states despite trailing in the polls in all those states.
When Swing State Polls Close
In the Presidential race, polls in the nine swing states close as follows (times are Central Standard time):
6 p.m. Virginia, New Hampshire
6:30 p.m. Ohio, North Carolina
7 p.m. Florida, New Hampshire
8 p.m. Colorado, Wisconsin
9 p.m. Iowa, Nevada
Voters may still be in long lines at the time polls are supposed to close and they will be allowed to vote. It thus may be hours before any returns other than the early votes are reported.
A Romney loss in Virginia would be really bad news for the GOP and Romney is toast if he loses in Florida. If Ohio is called early for Obama and Romney fails to win Wisconsin, it is hard to see how Romney can win. But, if Romney is stronger than expected in Virginia, and that state is called early for him, then it may be a sign almost all polling was off as Republicans have claimed and Obama may be back to teaching Con Law next year.
Nationally, the networks will quickly project Romney or Obama to be the winners of the "easy" states they are expected to win. Romney will jump to an early lead when the polls in the first seven states close at 6 p.m. CST. Romney will lead 44-3 at the beginning. The key is to see how the nine swing states go and the networks will take their time calling those races. The vote from the West Coast, which will all go for Obama, will be reported last but by then the winner should be known based on the results in the swing states.
The Associated Press, ABC, CBS, NBC, CNN, and Fox are part of a consortium, called the National Election Pool, to gather and share information that they will use on election night to call states for President Barack Obama or Mitt Romney. That information, collected by Somerville, N.J.-based Edison Research, includes telephone polling of early voters before Election Day, plus exit polls on Tuesday and sampling of precinct vote counts after the polls close.
While Edison has its own statistical models for calling races, many news organizations maintain independent - and private - software to make their own calls. Some news organizations differ in how they use exit polls. For example, CNN doesn't use exit polls to call competitive races. The AP, though, does use exit polls as one of its tools to project winners in close states.
Ex Parte Communications Between a Judge and an Amicus Attorney are Unethical and Criminal
An amicus attorney is an attorney serving as an advocate in a case and ex parte communications between any attorney and the judge are prohibited. A judge simply cannot have private discussions with the amicus about the facts of the case if the other attorneys are not present or have not consented in advance. It is not only unethical for the amicus and also for the judge to engage in ex parte communications, it is probably also a crime under Texas Penal Code Sec. 36.04. In 2005, a Brazos County judge and the attorney ad litem he appointed in a car wreck were both indicted for secret e-mail communications about the case that did not involve the other attorneys of record. The judge and attorney both accepted guilty pleas, the judge resigned and both were publicly reprimanded by the State Bar.
The Texas Family Code makes clear that the amicus attorney serves as an attorney in the case. Sec. 107.001(1) defines "Amicus attorney" to mean, " an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child."
Sec. 107.003 sets forth the powers and duties of the Attorney Ad Litem and Amicus Attorney and does not mention the power to have ex parte communications with the judge. Sec. 107.003(1)(F) states that the Amicus Attorney shall, "participate in the conduct of the litigation to the same extent as an attorney for a party." Sec. 107.005 describes additional duties of the Amicus Attorney and makes clear that the amicus serves as an advocate in court like the attorneys representing the parents. Sec. 107.007(a) says, "Subject to any specific limitation in the order of appointment, an amicus attorney shall advocate the best interests of the child after reviewing the facts and circumstances of the case."
The Texas Code of Judicial Conduct, Canon 3(B)(8) states:
(8) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the judge's direction and control.
Rule 8.04 of the Texas Disciplinary Rules of Professional Conduct states:
(a) A lawyer shall not:
(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship;
(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects;
. . . .
(6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;
Rule 3.05 of the Texas Disciplinary Rules of Professional Conduct states:
A lawyer shall not:
(a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;
(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:
(1) in the course of official proceedings in the cause;
(2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer;
(3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
An amicus attorney who engages in ex parte communications with a judge would be violating DRPC 8.04 and 3.05. The amicus attorney would also probably be committing a crime.
The Texas Penal Code at Sec. 36.04 describes the crime of "Improper Influence" as follows:
(a) A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law.
(b) For purposes of this section, "adjudicatory proceeding" means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined.
(c) An offense under this section is a Class A misdemeanor.
In 2005, a Brazos county judge and the attorney ad litem he had appointed in a car wreck case were both criminally charged for ex parte e-mail communications about the case. The attorney ad litem was charged and finally accepted a guilty plea for violation of Sec. 36.04 for sending e-mails to the judge about a case which were not sent to the other parties or attorneys (Cause no. 05-06066CRIM). That same attorney also accepted an agreed Public Reprimand from the State Bar. The judge in that case plead guilty to "Abuse of Official Capacity" under Texas Penal Code Sec. 39.02 (Cause no. 05-06061-CRM). The judge resigned and also agreed to a public reprimand from the State Bar. A local newspaper, Bryan-College Station Eagle on January 6, 2007, described what happened as follows:
Harrison became the focus of attention in November 2005, after the Brazos County Juvenile Board unanimously selected her for a part-time juvenile judge seat over six other candidates, despite her history of alcohol-related arrests. She initially accepted the job but backed out days after The Eagle filed an open-records request seeking all nonwork-related e-mails between her and each of the area's five trial court judges on the Juvenile Board. It would take months of legal wrangling before the newspaper received the e-mails, which revealed the attorney had been having an affair with Michel - who was then presiding over the County Court-at-Law No. 1 bench. Using a grand jury subpoena, the District Attorney's Office quietly requested similar documents at about the same time.
Prosecutors claimed that Michel abused his power by conducting "secret e-mail correspondence" with Harrison about a case she was arguing in his courtroom. He gave her advice on whom to call as witnesses and cited laws she should look into - a violation of the law so flagrant prosecutors described it as "a complete corruption of the way the process in a Texas courtroom is supposed to take place."
Former County Court-at-Law No.1 judge Randy Michel and lawyer Patricia Bonilla Harrison were reprimanded by the State Bar of Texas for unethical practices. More than a year ago:
* Michel pleaded guilty to abuse of official capacity. He also announced he would step down from the bench.
* Harrison pleaded guilty to improper influence. She had previously backed out of a position as a part-time juvenile judge because of a history of alcohol-related arrests.
* Both were ordered to jointly pay $13,840 in restitution to local attorney Chad Jones.
At the end of the case, Michel ruled in Harrison's favor and ordered her opponent, Bryan-based attorney Chad Jones, to pay $12,000 in fees. He then filed a complaint against Jones with the State Bar of Texas that officials would later find to be without merit.
As a result of their 2005 plea agreements, Michel and Harrison agreed to pay Jones $13,840 in restitution. For the recent public reprimands, they were each ordered to pay $400 to recoup costs associated with the State Bar of Texas' investigation.
"The evidentiary panel finds that respondent has committed professional misconduct as defined by the Texas Rules of Disciplinary Procedure and should be reprimanded," read the court documents filed for each attorney's reprimand.
The situation of ex parte communications between a judge and an amicus attorney involves three unique dynamics in family court:
- Some family court judges, who would never discuss a case ex parte with a lawyer for the mother or father, truly think it is acceptable to have ex parte discussions with the amicus attorney the judge appointed.
- The amicus attorney is often reluctant to say, "no" to the judge who appointed her, who controls her fees and who has the power to appoint that lawyer in the future to other cases.
- Family attorneys in particular are frankly afraid to confront all-powerful family court judges about improper behavior because judges in divorces and custody matters are given such wide discretion.
Proving that ex parte communications have occurred between the judge and the amicus attorney is often difficult. Texas Family Code Sec. 107.007 states that an amicus attorney may not be compelled to produce work product developed during the amicus appointment and may not testify except as to attorney's fees. However, Amicus Attorneys do speak in court and one possible method would be for an attorney in court with all counsel present on the record to say something like, "Judge, before we get started, with all due respect to the court, I would like for the amicus attorney to state on the record that she has not engaged in any communications with the court about the facts of this case in which other counsel were not involved." The judge might be angry but she would not look very good if she then refused to allow the amicus to make that statement. The amicus as an attorney would have an ethical duty to tell the truth to the tribunal even if not under oath. DRPC 3.03, 8.04(3).
A lawyer representing a parent or grandparent in a child custody case who can prove that the amicus and judge have engaged in ex parte communications might be tempted to say or do nothing if the amicus and/or judge is on his client's side in the custody case. However, DRPC 8.03 states:
Rule 8.03 Reporting Professional Misconduct
(a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.
(b) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judges fitness for office shall inform the appropriate authority.
The attorney who can prove that an ex parte communication has occurred between the judge and amicus, should:
- Inform her client and the opposing attorney.
- File a sworn motion to recuse the judge and a motion to replace the amicus attorney.
- File a grievance with the State Bar and the Commission on Judicial Conduct, and
- Make a report to the District Attorney's office.
The amicus attorney must refuse a judge's attempts to talk or email about a case ex parte and should notify the other attorneys and has a duty to report the judge.
Courthouse gossip says a few of our nine family court judges are routinely talking to amicus attorneys about active cases without the knowledge or participation of the attorneys representing the parents. I have had amicus attorneys tell me this is going on. If you bring me the proof, I will file the grievances and complaints to the District Attorney. This practice is not just unethical and illegal, it subverts our system of advocacy and rules of evidence and is simply not fair.
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