Viral Voting: Why Texas Is Forcing Residents to Risk Infection at the Polls During the Pandemic

click to enlarge If mail-in ballots aren’t expanded, experts worry fewer elections volunteers will be willing to work. - Sanford Nowlin
Sanford Nowlin
If mail-in ballots aren’t expanded, experts worry fewer elections volunteers will be willing to work.
The clock is running down for local and state leaders to ensure voters won’t be risking their lives this election season.

Late last Friday, the Republican-controlled Texas Supreme Court handed state Attorney General Ken Paxton a victory when it temporarily blocked an expansion of voting by mail during the coronavirus pandemic.

The high court is also expected to oral arguments Wednesday on whether to let stand a lower court ruling that permits voters who lack immunity to the coronavirus — and therefore face infection risks — to request absentee ballots instead of showing up at crowded polling places.

Multiple federal lawsuits filed by the Texas Democratic Party and civil rights groups also take issue with the state’s absentee voting rules, which limit access to mail-in ballots to people with disabilities, those over 65 and those out traveling or in jail during an election. On Tuesday, U.S. District Judge Fred Biery in San Antonio handed a victory to the Democrats, but Texas' GOP leaders signaled they plan to appeal.

All that legal wrangling plays out with early voting for this summer’s runoff set to start on June 29 and as campaigns kick into high gear for the November general election — arguably the most consequential in a generation.

“This is a paramount issue for us and for voters across the state,” said Drew Galloway, executive director of MOVE Texas, a nonpartisan group that works to register and mobilize young voters. “We need to know right now how to encourage people to cast their ballots in the upcoming elections.”

Central to all of those court battles is whether the disability clause in Texas’ vote-by-mail rule applies to people who lack immunity to the coronavirus.
Voting rights advocates argue that the risk of contracting COVID-19 qualifies people to request an absentee ballot so they can avoid exposure at the polls. However, Paxton holds that the existing law clearly doesn’t allow for such a reading.

Earlier this month, the Republican AG fired off a letter threatening to prosecute election officials and other “third parties” who advise voters who ordinarily wouldn’t qualify for a mail-in ballot that they may submit one during the pandemic.

Apparently unswayed by Paxton’s bluster, Bexar County commissioners last week voted unanimously last week to let residents who fear exposure to COVID-19 at poll sites cast mail-in ballots instead.

District Attorney Joe Gonzales testified during the meeting that the state’s disability rules apply to people at risk for contracting a potentially deadly disease by showing up at crowded polling places.

“It’s very exasperating in the state of Texas when everything is done to suppress votes instead of to encourage them,” Bexar County Judge Nelson Wolff said prior to the vote.

Paxton’s office was unavailable for comment on this piece, however in a news release issued after last week’s Texas Supreme Court ruling, he said he expects the justices to reverse the lower court ruling.

“Protecting the integrity of elections is one of my most important and sacred obligations,” he added in the statement. 

click to enlarge Texas AG Ken Paxton has threatened to prosecute elections officials who offer mail-in ballots to people fearful of COVID-19. - Courtesy Photo / Ken Paxton
Courtesy Photo / Ken Paxton
Texas AG Ken Paxton has threatened to prosecute elections officials who offer mail-in ballots to people fearful of COVID-19.
Legacy of Suppression

It would be easier to give weight to Paxton’s claim if Texas’ record on elections was something to envy. But, according to scholars and voting-rights groups, it’s not.

The spate of lawsuits over absentee voting are only the latest court challenges to Texas’ voting-rights record. Civil rights organizations have repeatedly taken the state to court for limiting residents’ access to the polls.

Texas’ Republican leadership has repeatedly tried to justify those efforts by claiming it’s fighting election fraud — something that, for all its frequent mentions on Fox News, has is a rarity in the current era.

Last year, when announcing a badly botched purge of voter rolls, then-Texas Secretary of State David Whitley claimed more than 95,000 non-citizens may be erroneously registered to vote in the state. That number turned out to be false, as was the data on which Whitley based his purge.

Nearly a quarter of the people his office singled out, including naturalized citizens, had been added in error. The mishandled review resulted in a probe by the U.S. House and a flurry of lawsuits from civil rights groups. Whitley resigned amid national disgrace.

“We totally saw this coming,” Myrna Pérez, deputy director of the democracy program at NYU Law School’s Brennan Center for Justice, told the Current last year. “We have seen before these ridiculous, over-the-top claims of non-citizens on the rolls, and when the smoke clears and the dust settles, they always have to walk it back.”

Despite the debacle, Whitley still has a job in the capitol. Days after losing his job as secretary of state, he was rehired into Gov. Greg Abbott’s office with a $205,000 salary.

The reality, voting-rights advocates say, is that Abbott and others in the state’s Republican leadership aren’t so interested in fighting fraud as they are keeping potential Democratic voters — namely young people, poor people and people of color — away from the polls.

One need only look at the 14 seats the GOP lost in the Texas Legislature during the 2018 midterms to see the motivation for trying to remedy state’s demographic shift. Or in the words of President Donald Trump, who has a way of articulating things about the Republican agenda that others in the party tended to keep silent, voting by mail “doesn’t work out well for Republicans.”

Gina Ortiz Jones, the Democratic vying to represent Texas’ 23rd Congressional District, says she hears concerns almost daily from South Texas voters frightened about showing up at the polls.

Many of them are elderly or have underlying health conditions, which puts them in a high-risk category if they contract COVID-19. Others have lost their medical coverage during the crisis, potentially leaving them to cover the cost of a hospital stay out of pocket.

“The voters I talk to want certainty,” Jones said. “They want certainty that they can cast a ballot without compromising their own health or the health of a loved one.”

Fewer Polls, Longer Lines

Those concerns come as Texans face potentially long lines at polling places.
A study by the Leadership Conference Education Fund revealed that Texas has led the nation in shutting down polling sites since 2013. The state’s 750 closures accounted for nearly half of the total U.S. number. What’s more, 14 Texas counties have removed 50% or more of their polling locations since then.

While there was no decrease in Bexar County during the period covered in LCEF’s report, Medina County shuttered 46% of its total polling places, and Kendall County closed 39% of its total.

During Bexar County’s vote to expand access to absentee ballots, County Judge Wolff said interest in the November presidential election is likely to drive record turnout at the same time as elections volunteers, who tend to be elderly, are likely to stay home to protect their health.

“We all know the average age of [an elections] judge is 72 years old ... a group that’s very, very susceptible to this,” Wolff said.

Indeed, the infection risks are real, as evidenced by Wisconsin’s April 7 election.

After the U.S. Supreme Court ordered voting there to take place amid a wave of COVID-19 infections, 71 people contracted the disease after casting ballots in person or working the polls, state officials said.

A UW-Oshkosh and Ball State University study tracking mobile-device data found that counties with higher densities of in-person voting significantly higher rates of transmission than those with lower density.

Closer to home, the resignation of Harris County’s top election official also highlighted the health threat. In a statement, 70-year-old County Clerk Diane Trautman said her age and underlying health issues didn’t allow her to continue serving during the pandemic.

“I do not feel I can safely continue to carry out my duties,” she said in a statement.

Loss of Faith

During the 2018 midterms, at least 278,000 Texans were affected by election-administration failures which sometimes invalidated their votes or prevented them from casting a ballot at all, according to a Texas Civil Rights Project study.

Among the problems it documented were late poll openings, long lines, lack of polling places on college campuses, voting machine malfunctions, voter intimidation and noncompliance with federal voting laws.

Those failures highlight the need for Texas to get this year’s elections right and avoid further disenfranchising its electorate, critics say. Yet, for all his threats and court maneuvering, Paxton has so far failed to put forward any suggestion for how to protect voters during the COVID-19 crisis.

The same can’t be said for the other side. Earlier this month, State Rep. Philip Cortez, D-San Antonio, delivered a letter signed by 40 other members of the Texas House, suggesting how the state could ensure Texans have the ability to participate in the election process during the pandemic.

The letter urges Abbott to provide an application for mail-in ballots to every Texas voter, along with prepaid envelopes for both the application and the mail-in ballot they ultimately receive. The expansion could be funded, the letter points out, through a $24 million federal stabilization package recently given to the state.

Without such an effort, Cortez said the state is essentially asking voters to choose between putting their lives at risk and staying home on election day.
“That’s not a fair choice,” said the state rep, who’s still awaiting a reply from the governor’s office. “That’s not something we should force Texans to decide between.”

Now, as we speed toward the July runoff and November general election, observers worry that Texans will be forced to make precisely the choice Cortez laid out. If that’s the case, the state will further undermine faith in its own election system, essentially telling voters neither their votes nor their lives matter.

“If you have to disenfranchise voters in order to pass your policies, then those weren’t good policies in the first place,” said MOVE Texas’ Galloway.

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