The Battle Over Mail-In Ballots in Texas Isn't About How We Vote, but Who Votes

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Poll workers deposit people's mail-in ballots into an official ballot drop box on primary Election Day Aug. 18, 2020, in Doral, Florida.
Beginning in late August, the Texas GOP began sending out absentee ballot applications to registered voters across the state accompanied by political advertisements for President Donald Trump.

In stark contrast — and over the same timeframe — the Harris County Republican Party sued to stop the county from sending absentee ballot applications to all of its registered voters, even if they didn’t request one.

Chris Hollins, the Harris County clerk who had pushed to send the absentee ballot applications to expand vote-by-mail during the pandemic, satirized the moves in a tweet aimed at the GOP’s Texas chairman: “Heads up @AllenWest someone is masquerading as @TexasGOP and sending mail ballot applications to thousands (perhaps millions) of Texans who haven’t requested them. I know that you’re opposed to mail ballots, so this couldn’t possibly be you! Find these people and stop them!!”

Hollins believes having more eligible people applying to vote by mail is a good thing, and that the Republican Party is hypocritical as it outwardly tries to discredit voting by mail while quietly attempting to get its supporters to use mail ballots.

Allen West, head of the Texas GOP, struck back at Hollins on Twitter, stating Hollins “is incompetent and doesn’t know the difference between sending absentee ballot applications to eligible voters and sending ballot applications to ineligible voters, aka universal mail-in ballots.”

A district judge agreed with Harris County last week and rebuffed the state's request for a temporary injunction to block the mailings.

While other states have moved forward to broaden eligibility for absentee ballots in response to the coronavirus pandemic, Texas has kept in place its relatively restrictive absentee ballot rules, demanding that voters who want to vote by mail must either be 65 years or older, disabled, out of the county on Election Day or in jail. That's a sharp contrast to at least six states planning to hold “all-mail” ballot elections this November.

Not unlike masks, access to absentee ballot applications has become a highly politicized issue, and disinformation regarding the risks have been widespread.

Indeed, Texas Republicans have fiercely fought efforts by various groups across the state to expand eligibility, aligning themselves with President Donald Trump and the national Republican Party’s effort to block or discredit the movement to expand vote-by-mail eligibility.

Recently, Attorney General William P. Barr pointed to an alleged 2017 case of mail-in voter fraud in Dallas County and used it as a part of a broadside against mail-in voting, which he believes to be “very open to fraud and coercion.” The former Dallas County assistant district attorney on the case, Andy Chatham, described this characterization as untrue and “wholly irresponsible.”

Barr's narrative does not square with the record. The Brennan Center for Justice, in a report titled "The Truth About Voter Fraud," states it is more likely an American “will be struck by lightning than that he will impersonate another voter at the polls.” Other investigations and reviews into election fraud as recently as 2017 have found infinitesimal numbers incidents.

Ironically, the Texas GOP has long sent mail-in ballot applications to individuals older than 65. Heider Garcia, Tarrant County elections administrator, confirmed his office has heard from worried voters who received these mailers, but they are completely above board.

“This is all legal. Political campaigns have been doing things like this since I’ve worked in Tarrant County,” Garcia says.

Republicans have relied on this strategy for years. Luke Twombly, a spokesperson for the Texas GOP, told the Texas Tribune that the party had sent out ballot applications “like we do every year” to older voters and voters with disabilities.

This is the crux of the argument critics like Hollins make: The Texas GOP isn’t actually opposed to mail-in voting, they would just prefer to restrict access to those who are more likely to support them. Indeed, national polling suggests that Republicans have a 10 percentage-point advantage with voters older than 65.
One mailer we reviewed was received by a registered Republican over the age of 65 and includes an envelope printed with the address of the recipients’ local elections clerk in Tarrant County, making the process very simple to complete.

Certainly, if eligibility were expanded, we might expect to see an increase in voter participation in a state that frequently ranks at or near the bottom among states in voter turnout rates. Toward this end, Democrats in Texas have openly and forcefully advocated for the expansion of mail-in voting, both generally and in specific response to the pandemic.

To some degree, the campaign has worked. A recent study by Stanford University of a July runoff election in Texas showed that Democrats used absentee voting at a rate three times higher than Republicans, but there did not appear to be a related effect on overall turnout, suggesting that both hopes and fears that universal mail-in voting would turn Texas blue may be overblown.

With less than 60 days to the election, a statewide shift to an official, universal mail-in program in Texas is highly unlikely. Last week, a three-judge panel of the 5th U.S. Circuit Court of Appeals rejected a claim by Democrats that the Texas law allowing anyone 65 and over to automatically qualify to vote by mail violated the U.S. Constitution's ban on age discrimination in voting.

Though the fight is ongoing in courts, the GOP appears poised to win the battle. Advocates who sought to expand eligibility to all voters in the spring now battle over who can be automatically sent an application in particular counties.

Nevertheless, the Texas Supreme Court left a particularly large window open for individuals to request a ballot based on disability, which is defined broadly as “sickness or physical condition” that prevents them from voting in person without a significant chance of “needing personal assistance or of injuring the voter's health.”

While COVID-19 is not specifically listed as a valid reason on its own, Justice Nathan Hecht, chief of the all-Republican Texas Supreme Court, recently told the Houston Chronicle that Texas law “leaves this decision up to the individual,” meaning that “all they have to do is say, ‘I want (a mail-in ballot) because in my view I need one.’” An election official doesn’t have the authority to question a voter’s reasoning regarding their eligibility.

With this decision in mind, it becomes clear that the Texas GOP cannot systematically stop voters from deciding they qualify, leaving them to pursue the next-best strategy: create confusion regarding eligibility and prevent access to vote-by-mail applications broadly, while making it easy for those likely to support them.

Making matters worse, Texas is one of the states that was warned by the U.S. Postal Service in late July that election mail may not arrive on time because of significant funding cuts pushed by President Trump and his cabinet.

Garcia encouraged Texans seeking to vote by mail to send in their applications and ballots as soon as possible to be sure their vote counts. The Texas GOP-funded mailer agrees: “President Trump needs you to act now.”