This article originally appeared in The Texas Tribune.
Standing in front of a blue curtain adorned with the seal of the Republican Party of Texas, Allen West offered up what he deemed an “instructional video” for Harris County Clerk Chris Hollins.
It had been a week since Hollins had announced his office would send an application for a mail-in ballot to every registered voter in the county — all 2.4 million of them. Since then, his plans had sparked alarm among top state Republicans, leading to two lawsuits meant to halt it before he could get the applications out.
Purporting to detail the difference between what Hollins, a Democrat, wanted to pursue and “what is really lawful,” West — who recently took the reins of the Texas GOP — inaccurately claimed Democrats were pursuing a “wanton mailing out of ballots.”
“There’s a wrong way and there’s a right way,” West said, touting the GOP’s approach of contacting voters and reminding them to send in their applications.
In reality, Hollins was merely sending applications for a mail-in ballot — something West’s own party has done for years. In recent weeks, voters across the state have been finding in their mailboxes unsolicited applications to request absentee ballots. Some of those mailers — depicting images of President Donald Trump — were from the Republican Party of Texas that West chairs.
As states across the country scramble to make voting safer in a pandemic, Texas is in the small minority of those requiring voters who want to cast their ballots by mail to present an excuse beyond the risk of contracting the coronavirus at polling places. But the ongoing attempts by the White House to sow doubt over the reliability of voting by mail has left Texas voters in a blur of cognitive dissonance. Local officials are being reprimanded by the state’s Republican leadership for attempting to proactively send applications for mail-in ballots, while the people doing the scolding are still urging their voters to fill them out.
What was once a lightly used and largely uncontroversial voting option in Texas — one even Republicans relied on — is now the crux of the latest fight over who gets to vote and, equally as crucial in a pandemic, who has access to safe voting.
“Ensuring vulnerable populations can vote by mail during a pandemic is designed to protect human life & access to the vote,” Harris County Judge Lina Hidalgo said on Twitter this week after the county’s mailing plan was temporarily blocked by the Texas Supreme Court. “Those who stand in the way—using voter suppression as an electoral strategy—are throwing a wrench in democracy. We’ll keep fighting.”
“Between a rock and a hard place”
With the novel risks of interacting with others in close quarters, the coronavirus pandemic forced widened awareness of voting by mail options in the country.
Some states pushed forward to broaden eligibility for ballots that could be filled out at home and mailed in or dropped off. Other states began to take the initiative to send out applications to all of their voters. And still other states relied on universal vote-by-mail election systems that have existed for years with little controversy or questions about reliability.
Texas kept its strict eligibility criteria and fought to fend off efforts by state Democrats, civil rights groups and individual voters to expand eligibility through the courts.
That’s left in place automatic eligibility for voters who are 65 and older — a group of voters who are much more likely to be white and generally considered to make up part of the Texas GOP’s base. Other voters qualify if they’ll be out of the county they’re registered in during the entire election period, if they’re confined in jail but otherwise still eligible or if they cite a disability or illness.
In the past, only a small portion of voters have used the vote-by-mail option. But even without expanding eligibility, local election officials are expecting a jump in absentee voters — primarily among voters who have always been eligible but usually vote in person, but also among voters citing a disability or illness that could make voting in person a risky endeavor.
While a lack of immunity to COVID-19 alone does not allow a voter to request a ballot based on disability, the Texas Supreme Court ruled it was up to voters to decide if that lack of immunity combined with their own medical history allowed them to meet the state’s eligibility criteria. The state election code defines disability broadly, indicating a voter is eligible to vote by mail if they have a “sickness or physical condition” that prevents them from voting in person without the likelihood of “needing personal assistance or of injuring the voter's health.” It’s up to the voter to decide this, and election officials don’t have the authority to question a voter’s reasoning.
“The statute leaves this decision up to the individual,” Nathan Hecht, the chief of the all-Republican Texas Supreme Court recently told the Houston Chronicle’s editorial board. “You can’t ask them. There is no form they have to fill out, they don’t have to swear to it, don’t have to sign anything; all they have to do is say, ‘I want (a mail-in ballot) because in my view I need one.’”
But the partisan fight over voting by mail ushered in by the coronavirus pandemic has forced Republicans into what have at times seemed like conflicting positions.
Lt. Gov. Dan Patrick characterized efforts to expand mail-in voting during the pandemic as a “scam by Democrats” that would lead to “the end of America.” In a rolling series of tweets, President Donald Trump has pushed concerns of widespread fraud — which are unsubstantiated — in mail-in ballots. Texas Attorney General Ken Paxton quoted a local prosecutor saying voting by mail “invites fraud.”
Meanwhile, the Texas GOP sent out applications with mailers urging voters to make a plan to request their mail-in ballots. Fighting in court against Harris County’s plan, Paxton’s office argued “voting by mail is a cumbersome process with many steps to limit fraud.”
Luke Twombly, a spokesperson for the Texas GOP, confirmed the party had sent out ballot applications “like we do every year” to older voters and voters with disabilities that would allow them to qualify. Twombly did not respond to a follow up question on how the party determined voters who would be eligible based on a disability, nor did he respond to questions asking for specifics on the party’s get-out-the-vote efforts tied to voting by mail.
“The cynical explanation is that the intent here is to make it as easy as possible for Republicans to vote by mail but discouraging others and casting doubt over the process following the lead of the president,” said Rick Hasen, an elections lawyer and professor at the University of California-Irvine. “I think that's a real fine needle to thread.”
It might be in the GOP’s best interest to “encourage voters to vote safely” by mail, particularly as the state’s vote-by-mail rules allow many of their base voters to be automatically eligible for an absentee ballot, but the president is complicating matters for them, Hasen said
“They are caught between a rock and a hard place,” Hasen said.
Some Texas Republicans quietly express frustration that party leaders are casting doubt on a system that they have worked for years to cultivate. West and other prominent Texas Republicans have floated unsubstantiated concerns that increased mail-in voting creates opportunities for widespread voter fraud. In interviews with multiple Republican operatives and attorneys who have worked on campaigns in the state, all suggested privately that the modernized system precludes such a scenario. None of these Republicans would go on the record, for fear of alienating colleagues.
There are some documented cases of fraud in mail-in voting in Texas. But like voter fraud overall, it remains rare.
“This issue … of fraud and voting fraud and all that was brought up years ago, 19 years ago when I was secretary of state,” said U.S. Rep. Henry Cuellar, a Laredo Democrat who was appointed Texas secretary of state by former Gov. George W. Bush, a Republican. “I looked at it as secretary of state, and it was so rare, so rare,”
Pointing to a 2018 Trump administration voter fraud commission study that did not find widespread fraud in the U.S. voting system, Cuellar said he finds the voter fraud rhetoric frustrating.
“I’m not saying it doesn’t happen, but those cases are few and far between,” he added.
To be sure, expanding the number of people voting by mail in Texas doesn’t come without risks.
There are real concerns that an increase in inexperienced absentee voters could result in increased mistakes on applications and mail-in ballots that could keep a voter from receiving their ballot or result in a rejected ballot. Texas voters must also navigate a mismatch between the U.S. Postal Service’s mailing timelines and the state’s deadlines for requesting and returning mail-in ballots.
“We need to be careful about blanket sending out blanket applications,” said Derek Ryan, a Republican voter data expert. “It's one thing to send an application to people over 65 who are eligible under state law. It's one thing to send voters that application; it's a different ball game when you're sending it to every voter in the county. It’s obviously going to cause some confusion.”
Paxton’s office echoed that concern in suing to stop Harris County’s application mailings, claiming a mass-mailing would lead voters to “wrongly think they are eligible to vote a mail ballot.” The state is also arguing local elections officials are only allowed to send applications to voters who request them.
(The decision on whether a Texan who is younger than 65 is eligible to vote by mail lies with the voter. And there is no state law that specifically prohibits local election officials from sending out applications for mail-in ballots.)
In an effort to combat confusion among voters, Harris County said it intended to send the applications for mail-in ballots with "detailed guidance to inform voters that they may not qualify to vote by mail and to describe who does qualify based on the recent Texas Supreme Court decision." In its mailers, the Texas GOP instructs voters to “take immediate action” by confirming they meet the eligibility requirements and filling out an application proactively sent out by the party.
Ryan, the Republican voter data expert, suggested that a past Republican campaign emphasis on vote-by-mail lends credibility to the objections Republicans are raising in Harris County.
“Voting by mail is our bread and butter,” said Ryan, the Republican voter data expert. “I kind of dismiss that more ballot by mail votes automatically favor the Democrats over the Republicans. That might not necessarily be the case. I think that kind of says the Republicans who are opposed to it aren't necessarily doing it because they think it benefits the Democrats. They’re doing it because of election integrity.”
But in light of those objections, the Texas Democratic Party painted the GOP’s mailings to voters who did not request them as “a shocking display of hypocrisy.”
“It seems if Republicans had their way, the only requirement for Texans to cast a mail-in ballot would be ‘are you voting for Donald Trump?’,” Abhi Rahman, the party’s communications director, said in a statement this week.
The Texas Democratic Party previously announced it was sending out more than 815,000 applications for mail-in ballots to eligible Texas voters in August.
Court battles continue
Sixty days out from the election, the rules for voting by mail in Texas remain largely the same. Though the fight over absentee voting has progressed from a clash over who is eligible to a fight over who can automatically receive an application, some counties — and both political parties — are moving forward with mailing out applications to voters they believe are eligible to vote by mail.
“There’s a national agenda and Texas voters are being pawns of somebody else's national agenda,” said Myrna Pérez, director of the voting rights and elections program at the Brennan Center for Justice. “It’s disappointing and I think you see evidence of this in the language and how people are talking about it and the campaign we’re seeing. ...You see evidence of this in the way people act and what they expect is appropriate for their own voters.”
The Texas Democratic Party is still fighting in court to expand eligibility for mail-in voting for voters younger than 65, though it’s becoming increasingly unclear if that litigation will be resolved in time for the general election.
Meanwhile, Harris County has indicated it isn’t backing down from its plan to send out applications to every voter — even if those applications go out later than they planned. While the USPS has set 15 days out from election day as the cutoff for ballot requests, Texas allows voters to to get their requests in until a week and a half before that deadline. For the general election, that’s Oct. 23.
The Texas attorney general’s office and Harris County convened Friday afternoon to confer on a hearing schedule. They’ll be in court next week.
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