Early voting begins Monday for the 2022 primary elections — the first election since Republicans passed an “election integrity” law.
Texas Democratic Party Chair Gilberto Hinojosa called the new law “a barefaced attack on Texas voters — one that should never have seen the light of day.” He also called Gov. Greg Abbott “a would-be dictator who will do anything to cling to power, even at the expense of the voices of millions of Texans and the future of our democracy.”
These days the job description of party chairs appears to include strident rhetoric. In December, when the U.S. Supreme Court summarily refused to consider a silly suit filed by Texas Attorney General Ken Paxton seeking to overturn the elections of four states that went for Joe Biden, then-Republican Chairman Allen West issued a statement implying secession: “Perhaps law-abiding states should bond together and form a Union of states that will abide by the constitution.”
The reality is that Texas’s new election law does make voting harder, especially for voters who need assistance and those who prefer to vote by mail. For that and other reasons that I will address below, it is a very bad law. But it could have been much worse. Consider these two provisions in an early version passed by the Senate.
One would have forbidden polls to open before 1 p.m. on Sundays during the early voting period. This was not so voters on their way to the polls would be able to take advantage of Sunday beer and wine sales that begin at noon. It was to undermine popular Sunday “souls to the polls” events at Black churches.
Another early provision was even more blatant. It proposed a formula that would close polls in heavily minority districts that tend to vote Democrat and add new polling places in whiter Republican districts. Harris County would be the most heavily affected. An analysis by the Texas Tribune indicated that the district of Democrat Senfronia Thompson, the longest-tenured Black member of the state House of Representatives, would lose 11 voting sites. The suburban district of Republican Rep. Mike Schofield would gain 18.
These two provisions were so blatantly racist that they were pulled from the bill as soon as they were publicized.
Another provision would have made it easier for a judge to order a new election. The standard for voiding an election because of fraud would change from the current “clear and convincing evidence” standard to the lower “preponderance of the evidence.”
Even worse, if a judge found that the total number of fraudulent votes exceeded the margin of victory he or she could void the election without determining which candidate the fraudulent votes favored, as is currently required. The judge could just assume that 100 percent were for the winning candidate.
That measure was so ridiculous that the managers of the bill not only pulled it when it was publicized but refused to disclose who put the measure in the bill.
While the law does not include measures as blatant as these, it clearly is an attempt to put a damper on voter participation in a state that already ranks among the most restrictive in the nation. The most obvious area is new requirements regarding mail votes.
Problems with new requirements that mail ballot applications include either a driver’s license number or the last four digits of a voter’s Social Security number — depending on which one was given at the time of registration — have already received a good deal of publicity as thousands of applications are being rejected either because they lack the information or election officials are unable to verify the numbers.
The provision has caused thousands of applications to be denied statewide. In Travis County about half of applications were rejected as defective.
In Harris County, as of Sunday just under 25,000 mail vote applications had been approved — less than half the number approved by this time in 2018. Nearly a third as many applications, 7,791, had been rejected, including 2,747 for missing or unmatched driver’s license or Social Security numbers. Election workers are working 10-hour days six days a week to attempt to contact voters whose applications are defective, according to Leah Shah, spokeswoman for the county’s Office of Elections Administration.
At least as effective in suppressing the vote is the law’s provision barring election offices from sending out mail voting application forms unless a voter asks for one. That’s a step that many elderly people — voters 65 and over automatically qualify to vote by mail — often forget or don’t know how to do.
Political parties and individual candidates are permitted to send unsolicited forms, but often there are problems. One has arisen in Harris County. In the past, the county has sent applications to voters it knows to be 65 or older, many because they have previously voted absentee. The county would pre-check the box that affirms that the voter is 65 or older.
This year the Harris County Republican Party has sent unsolicited applications to its own lists of senior voters. Many obviously are grateful, but the party didn’t think to pre-check the over-65 box and many applications arrive without the required check mark.
Given the fact that no evidence has been produced of widespread fraud in mail ballots, the provisions making them more complicated and harder to obtain serve only to suppress the vote — even in the instances when it is equal opportunity suppression.
But the law is clearly aimed at the big cities, which tend to vote Democrat.
In the 2020 election, during the most frightening phase of the COVID-19 pandemic, more than a few election officials worked strenuously to make voting easier and safer. In Bexar County, early voting polls were kept open until 10 p.m. to help keep them from being crowded. The law now requires that they be closed at 9 p.m.
Most ambitiously, Harris County kept some early voting polls open for 24-hours on selected, well-publicized nights. In addition, they offered drive-thru voting at 10 locations. Both initiatives were wildly popular. More than 128,000 voted from their cars. Some 17,425 voted at the 10 early voting sites that for one day were open all night.
The drive-thru sites were especially effective with millennials and Black voters. Millennials were 42 percent of drive-thru voters and only 28 percent of all early voters. Blacks were 44 percent of drive-thru voters and only 12 percent of all early voters.
Given the voting preferences of urban Blacks and millennials, no wonder Republicans outlawed drive-thru voting, even though the security procedures were the same as indoor voting.
In a rational world, public servants who worked long hours and went out into the cold night to help the public perform their civic duties would be hailed as heroes. They would have been presented as models for the rest of the state.
Instead, our Legislature presented them as villains, as promoters of election fraud even though no evidence of any voter fraud at Harris County’s all-night or drive-thru polling places has surfaced.
Instead of praising officials for making it easier for elderly people to vote by mail, the Legislature made it a crime punishable for up to two years in prison for public officials to send out unsolicited absentee ballots to qualified voters. It criminalized other actions by election officials as well, leading some volunteers for election judges in Bexar County training sessions to ask if the county will provide legal defense if they are charged with a crime for making a mistake. (It will.)
Perhaps that’s the most damaging aspect of the new law. Many of its backers admitted there was no evidence of substantial fraud but said voters had lost confidence in election integrity and that the law was necessary to restore that confidence. Many had come to doubt the integrity of our elections, but largely because of false claims of a “stolen” election by then-President Donald Trump and his supporters.
Trump’s assertion that the presidential election was “stolen” was so forcefully amplified by right-wing media that 147 Republicans in Congress voted against certifying Joe Biden’s victory and many local and statewide Republican candidates throughout the nation are making the assertion that Trump really won a litmus test in the current Republican primaries.
So can we be confident that next November’s election and that in 2024 will be seen as fair, honest and secure? Not a chance, and those who wrote our new election law know it. That law will have exactly the opposite effect.
By making “election integrity” the most important legislation of the 2021 Legislature — and especially by legally defining well-intentioned actions by honest election officials and workers as crimes — the Legislature and Abbott will not have quelled unfounded public suspicions.
Instead they have confirmed them. Why, after all, would we need the law fighting massive election fraud if there wasn’t massive election fraud?