Fear and Loathing at the Ballot Box: Texas Data Points for the Week In Politics, September 26, 2020

The artifice and hyperbole inherent in the Hunter S. Thompson reference notwithstanding, the week's election news elicited genuine fear and sincere loathing. So with emotions high and the stakes for the political system even higher, this week’s post focuses on the escalating political fighting over the rules for the 2020 general election as voting procedures in Texas are being challenged on multiple fronts, and as the President all but promises that he will contest the outcome of the election if he doesn't win. On the same day that Donald Trump refused (the first time, anyway) to commit to accepting the results of the 2020 presidential election, a group of Texas Republicans was asking the Texas Supreme Court to reverse Governor Abbott’s extension of the early voting period. All of this overshadowed the state’s compliance this week with a federal court order requiring Texas to follow the 27-year old “motor voter” law by allowing Texans renewing their driver’s license online to also update their voter registration - a possible beachhead for belatedly bringing online voter registration to the state. As the week ended, the voting plot thickened still more, as the Texas Attorney General tried to highlight a voter fraud case involving absentee ballots in a primary race for county commissioner, and a federal judge sent shivers through the spines of county clerks by blocking the 2019 law ending straight-ticket voting in Texas. And as a backdrop to the swirling political and legal chaos around elections and voting, the Secretary of State announced an increase in registered voters (registration continued through October 5). These are all pieces of an important puzzle picturing the resilience of democracy in the state and the nation. With early voting set to start in Texas in less than three weeks (setting aside the lawsuit for the moment), as a wise observer once said, all the pieces matter. I took a little more time this week to put several of them together.

1. A group of far-right Republicans banded together this week to sue Secretary of State Ruth Hughes in the Texas Supreme Court to reverse Greg Abbott’s addition of an extra week to the early voting period in an executive order issued in July, as well as his order allowing voters to deliver mail-in ballots to their county clerk’s office in person both during early voting and on Election Day. In short, the request for madamus argues that only the legislature has the power to alter the Texas Election Code. The legal action was filed by a group of usual suspects, first and foremost conservative donor and activist Steven Hotze, but also recently elected Chairman of the Republican Party of Texas Allen West, with legal representation by Jared Woodfill. Hotze had challenged multiple aspects of Abbott’s executive actions in response to the pandemic, including a previous attempt to reverse the extension of early voting. (For a taste, search “Hotze” in the Texas judicial branch’s handy search tool.) Some of the other relators are straight from the conservative Island of Lost Toys, including former legislators Molly White, Matt Rinaldi, and Rick Green, as well as Tea Party lights JoAnn Fleming and Julie McCarty. Also featured were current members Cecil Bell and Steve Toth, and, perhaps most intriguing, Senator Charles Perry. In a minor but, one suspects, legislatively significant side show on (of course) Twitter, Senator Donna Campbell was included in the document that circulated among press circles, but soon communicated that she didn’t want to be a party to the suit, and Hotze seemingly used a Twitter intermediary to push back (noting, among other finer points of narrative, that Campbell wasn’t included on the filed version of the suit). On one hand, the persistent efforts by this conservative band to curtail efforts to create more and safer options for voting is pretty easy to characterize as a reflexive partisan defense of the status quo, and gives off  a whiff of fringe denial of the gravity of the pandemic. On the other hand, some of the reasoning in the court filing echoes critiques of the governor’s use of executive authority by a broad array of critics, some of which  predate the pandemic. At one level, there is a tactical disagreement with the Governor over where to draw the line on the default position of not making it any easier to vote than necessary in the context of the pandemic; deeper down, this is yet another eruption of outright defiance of the governor from within his own coalition over his expansion of executive power. As to the substance of the matter for regular people: The June UT/Texas Tribune Poll found the majority of Texans (54%) thought it would be unsafe to vote in person, including a non-trivial slice of Republican voters (19%); and a majority of Texans saying they would either vote early in-person or vote by mail if the latter option was granted to all Texans. In this scenario, more than half of Republicans said they would vote in-person early. 

2. In addition to its implications for voting and politics in Texas, this latest legal action joins a larger set of maneuvers by the president and his allies to defend Trump’s hold on the presidency in the arena of election rules and practices. A widely-cited article by Barton Gellman on The Atlantic site this week compiles evidence making the case that it is inevitable that President Trump will not concede the election even if he is the clear loser. The efforts of Hotze et al appear consonant (at least) with the Trump campaign’s national strategy to drive down turnout and cast doubt on the integrity of the process on the input side of the election (documented in Gellman’s piece and elsewhere with reporting from within his campaign, and, more plainly, with Trump’s own words). The signs of the erosion of confidence in the voting process have been evident in multiple poll results in Texas going back at least to the 2016 campaign, when Trump’s frequent talk about voter fraud, voting by non-citizens, and his frequent accusation that the election was “rigged,” activated long-simmering attitudes among both Democrats and Republicans. It’s hard to imagine that our next round of polling on attitudes about elections and voting in the state won’t find these attitudes even more exacerbated by the President’s explicit and repeated wait-and-see position about whether he will accept the results of the election if he loses, and his continued assurance that process has already been fatally compromised by voting by mail, despite the absence of any evidence to substantiate the point.  

3. In much quieter election news this week, the state began allowing Texans renewing their driver’s license online to register to vote online, too. This is pretty far from allowing all voters to register online (which the vast majority of states allow), but in the context of the resistance of the Republican majority in the Texas Legislature to making it easier to register to vote (let alone easier to vote), the state’s forced compliance with the federal motor voter law is a small crack in the dam of resistance to universal online voter registration. Democrats will continue to support it, and Republicans to oppose it, but the arguments that online registration is inherently corrupt or too difficult to administer have a sprung a small leak here. (The Texas Tribune’s Dan Rosenzweig-Ziff has the backstory to the Texas lawsuit that eventually resulted in a federal judge forcing Texas to follow federal law.) A majority of Texans supported online voter registration as recently as the June 2018 UT/Texas Tribune Poll, including a slim plurality of Republicans, who are likely to gain experience registering online in the wake of the recent change.

4. Amidst the elevation of voter fraud involving mail-in ballots as a mortal and universal threat to the 2020 election, the Texas Attorney General announced on Thursday the arrest of a county commissioner in East Texas after he and three alleged accomplices were indicted on voter fraud charges involving 38 mail-in ballots in the 2018 Democratic primary. As Emma Platoff recounts in The Texas Tribune, "the Gregg County grand jury issued indictments for 134 total counts against the four...The indictments themselves offer little explanation of how the alleged fraud occurred and do not indicate how many of the 38 successfully cast ballots.” Platoff also quotes Attorney General Paxton reminding the public that “mail ballots are vulnerable to diversion, coercion, and influence by organized vote harvesting schemes,” though she also reminds her readers “fraud in absentee voting, as with fraud in any type of voting, is rare.” As previously noted, Texans on the whole are in favor of extending mail-in voting in the context of the pandemic, though Democrats are much more in favor than Republicans, among whom support decreased and opposition increased between April and June of this year. 

5. In still more election news, U.S. District Judge Marina Garcia Marmoleto blocked the implementation of the law eliminating straight-ticket voting passed by the legislature in the 2019 session. Per Taylor Goldenstein’s coverage in The Houston Chronicle, the federal judge reasoned in her ruling that “By creating mass lines at the polls and increasing the amount of time voters are exposed to COVID-19, HB 25 will cause irreparable injury to plaintiffs and ALL Texas voters in the general election.” There has been a lot of discussion of how to account for the absence of the straight ticket option in an election with potentially higher than usual chances of ticket splitting with Donald Trump at the top of the ticket, as well as voters nervous about hanging around to complete a long ballot during a pandemic. Alex Samuels reported a statement from the Attorney General Ken Paxton "released a statement saying that his office filed a motion to stop the judge’s order and intends to file an immediate appeal of the district court’s ruling" in The Texas Tribune Saturday evening. Goldenstein’s piece includes some useful discussion with UT Austin law professor Joseph Fishkin about Supreme Court precedents on rulings that change election rules close to an election. Make a note about the “Purcell Principle” now – it will come in handy in the next month or two. 

6. And finally, a backdrop for all the action around voting rules and the conduct of the election: The Secretary of State announced a big increase in the number of registered voters. The press has developed an annoying habit of trumpeting “record setting increases in voter registration” every time the new voter registration number is announced, which is inherently hyperbolic given the state’s rapid population growth. In this context, it would be shocking if the number of registered voters actually decreased. The announced total of 16,617,436 registered voters is a healthy increase of more than 1.5 million since 2016, particularly after a reportedly COVID-driven relative decline in registrations in the spring and with voter registration continuing until October 5. So far, that’s about 37,000 more than the increase in registered voters between the 2012 and the 2016 presidential elections, though the total comprises a slightly lower share of the voting age population than in 2016 or 2018, as the table below illustrates. We’ll see what the final voter registration pushes undertaken by both parties yield. And when they will be able to start voting. And how. 

Voter Registration in Texas, 2010-2020

Source: Texas Secretary of State, Historical Election Data