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Our nanny state and vote by mail applications

Sen. Paul Bettencourt purses his lips and wags his finger and is very disappointed in your county government.

Republican state lawmakers have filed bills to codify the Texas Supreme Court decision that blocked Harris County from sending mail ballot applications to all of its 2.4 million registered voters.

Senate Bill 208, authored by Sens. Paul Bettencourt, R-Houston; Brandon Creighton, R-Conroe; Brian Birdwell; Bob Hall and Kel Seliger, would stop election officials from sending absentee ballot applications, regardless of eligibility. State Rep. Valoree Swanson, a Republican from Houston, filed a companion bill, House Bill 25.

“We must recognize the obvious that we didn’t need to mail 2M+ absentee ballot applications to registered voters in Harris County to have a record 11.2 million Texas voters cast their ballots in November,” Bettencourt said in a statement. “It is important to note that the 66.2% turnout in 2020 was without wasting taxpayer money by doing shotgun mailings to everyone on the voter roll.”

Harris County Clerk Christopher Hollins’ plan to do so, an attempt to make voting easier during the pandemic, was thwarted after the county’s Republican Party sued. The Texas Supreme Court ruled in early October that Hollins would be exceeding his authority, though two lower courts had previously approved of the mass mailings.

Hollins had already sent out nearly 400,000 applications to Harris County voters who were 65 and older by the time the suit arose. The proposed legislation filed this month would extend to even such mailings to eligible voters because they would prevent counties from sending any unsolicited mail ballot applications.

Emphasis mine. So that first sentence about codifying the State Supreme Court decision is misleading, since this bill would now prohibit something the Court explicitly allowed. Let’s be clear about that.

Let’s also be clear that there’s no valid justification for this bill. If the voters of Harris County don’t like the way that Commissioners Court appropriates and spends money, the voters of Harris County have a simple and direct way to express that disapproval. This is Paul Bettencourt and others expressing their disapproval of Harris County voters, because he has that power.

I’m sure there will be more bills like this one, and while most of them probably won’t pass I’ll be surprised if this one manages to fail. the good news, for what it’s worth, is that the Harris County Democratic Party can continue its very successful campaign of sending mail applications to its voters, then following up with them to ensure they get and return their mail ballots. I won’t be surprised if there’s some dropoff in mail voting in the next couple of elections, as people were motivated to vote by mail due to the pandemic, but I’d expect most of those voters to just go back to voting in person. This is a legislative temper tantrum, and it can some day be fixed, but don’t forget that it happened. Republicans like Paul Bettencourt want it to be hard to vote, and they will do what they can to make it hard to vote. We should make a bigger deal about this in our campaigns.

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10 Comments

  1. voter_worker says:

    I will resume voting in person. Mail voting is very boring by comparison. And here’s a thought: is there anything preventing the EA from prompting eligible voters to print out the mail ballot application directly from HarrisVotes? This could be done by emailing/texting the link or posting it on social media and prominently on the website.

  2. D Williams says:

    I like the fact we had options. I look forward to one day being able to cast my vote online. 2020 we’re living on Shaky grounds to only be able to cast your Vote by walk up would’ve been disastrous.

  3. Robbie Westmoreland says:

    What is bad about sending applications to people? Why should it not be allowed?
    The fact that there are alternatives doesn’t justify the restriction at all. Even the “it costs money” argument is tenuous. Why is it the role of the state to dictate how counties spend their money? If the state government is going to run the counties, why do we have elected officials nominally doing so?

    Out of curiosity, does the county keep records of our email and mobile phone contact information for use in sending us solicitations of various sorts (such as “emailing/texting the link”)? I ask because I think Paul Bettencourt would be against allowing Harris County to use that information to encourage people to explore all their options to make voting easier, because Paul Bettencourt’s motive here is to prevent the county from encouraging more people to vote.

    Someone in the legislature GOP contingent is even now trying to figure out how to draft legislation dramatically curbing early voting and the number of voting locations in urban counties with some veneer of an excuse for why it’s not voter suppression. If there’s any clear lesson to learn from this election and its aftermath it’s that the Republican Party is against widespread participation in elections.

  4. voter_worker says:

    @Robbie Westmoreland Yes, if a voter submits contact information it’s retained in their record. I received numerous texts from CC Hollins during the six weeks preceding the election. My comment is intended to point out that traditional mass mailing of a paper application is perhaps not the only means of fostering heightened awareness among the electorate and facilitating action on their part. If the Election Code does not prohibit other means of contact then why not use them? I’m trusting that EA Longoria, because of her position in the demographic landscape as well as being an enlightened human being, will explore her office’s options to maximize public outreach while adhering to the constraints of the Election Code.

  5. Kibitzer Curiae says:

    UNIVERSAL NON-PARTISAN DISTRIBUTION OF VBM APPLICATION

    VS.

    OUTREACH TO LIKELY SUPPORTERS BY POLITICAL PARTIES AND CAMPAIGNS

    Kuff makes a good point regarding the Dems’ continuing ability to do their own mailing (in a targeted fashion to prospective/likely supporters). A political party can’t act *ultra vires* (the doctrine the AG invoked to go after Chris Hollins), and is not subject to Election Code rules that govern the duties of election clerks, who are public officials. The new bill only proposes to tie the hands of public officials only. If it covered political parties, it would hamper the GOP in its outreach efforts as much as the Democrats.

    By: Bettencourt, et al. S.B. No. 208

    A BILL TO BE ENTITLED AN ACT

    relating to a prohibition on the distribution of an application
    form for an early voting ballot.
    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    SECTION 1. Subchapter A, Chapter 84, Election Code, is
    amended by adding Section 84.0111 to read as follows:
    Sec. 84.0111. PROHIBITION ON DISTRIBUTION OF OFFICIAL
    APPLICATION FORM. Unless otherwise authorized by this code, an
    officer or employee of this state or of a political subdivision of
    this state may not distribute an official application form for an
    early voting ballot to a person.
    SECTION 2. This Act takes effect September 1, 2021.

    House version by Swanson here: https://capitol.texas.gov/BillLookup/History.aspx?LegSess=87R&Bill=HB25

    Note that under the Harris County Clerk’s innovative mailing program, all Harris County voters would have received the intended benefit, including Republicans and Republican-leaning ones, and that the rationale was not only to facilitate access to the franchise, but to mitigate COVID-19 infection risk by reducing congregation associated with in-person voting.

    So, AG Ken Paxton’s injunction suit against Hollins also harmed Republicans’ own supporters and would-be supporters.

    The GOP’s calculus, of course, was that the Democratic candidates would disproportionately benefit if Hollins’ plan were implemented, given what is known about the political landscape of Harris County, and that the Stop-Hollins gambit would overall work to their advantage in the final tallies.

    CRIMINALIZED VOTE PROMOTION

    That said, it should be pointed out that SOS Director of Elections Keith Ingram testified at the temporary injunction hearing in State v. Hollins that his office makes criminal referrals to the Attorney General. It is not inconceivable that he (or his successor) will refer the Democratic Party for investigation/prosecution if/when he gets wind of a plan to mail absentee voting applications to likely Democratic sympathizers / prospective voters that is *not* restricted to those over the age 65 (all of whom qualify for absentee voting based on their age alone).

    Section 82.003 of the Texas Election Code qualifies all registered voters over the age of 65 on election day to vote by mail. See Tex. Elec. Code Ann. § 82.003.

    IT’S ALL ABOUT THE TEXT

    On the positive side, a statute that outright prohibits early voting clerks from mailing vote-by-mail applications that have not been specifically requested might actually be preferable to a Texas Supreme Court ruling to the same effect. Why? – Because it can be repealed, and the Legislature’s policy choice will thus have been expressly articulated, rather than the judicial branch of the GOP getting to channel the legislative will. Supreme Court holdings cannot be repealed, and repudiating a prior ruling is a big deal because of doctrine of *stare decisis* (in the vernacular: “We said so before, and we are never wrong, so we get to cite ourselves as binding legal authority”). But wacky statutory interpretation rulings can be corrected by the Legislature because in those cases the court merely purport to say what the legislature meant or intended through the language it chose. The Lege is free to disagree, and to change the previously-interpreted statutory language as it sees fit.

    And statutes enacted by a Legislature can be repealed in a subsequent session. No doctrine of stare decisis stands in the way in the state house arena.

    LEGISLATIVE REPAIR OF COURT-CAUSED DAMAGE TO DEMOCRACY

    Assuming the Dems will in future be in the ascendency in Texas, majority status in the Texas Legislature will probably come before majority status on the Texas Supreme Court. That’s because the Supremes have 6-year terms which are staggered, compared to 2 and 4 year terms for House members and Senators, respectively. It will likely take longer for Dems to achieve control of the high court, and they would still need a suitable case & controversy brought to them to be in a position to overturn prior GOP-favoring precedents. While some of the damage to voting rights and democracy has been inflicted by judicial Republicans, the more promising route to stop and reverse the GOP’s anti-democratic agenda – including bad supreme court election case law — will be through the Legislature.

    WESTLAW CITATION FOR STOP-HOLLINS SCOTX DECISION

    State of Texas v. Chris Hollins, No. 20-0729, 2020 WL 5919729 (Tex. Oct. 7, 2020).

    Cited by Justice Guzman in Tex. No. 20-0846 as follows: State v. Hollins, ___ S.W.3d ___, No. 20-0729, 2020 WL 5919729, at *1, 2 & nn.15 & 17 (Tex. 2020) (distinguishing a local election official’s efforts to mail unsolicited absentee-ballot applications to voters over age 65, which was unchallenged, from a similar plan to send unsolicited ballot applications to all registered voters regardless of eligibility that was unauthorized by the Election Code and therefore barred).

    Abbott v. Anti-Defamation League Austin, No. 20-0846, 2020 WL 6295076 (Tex. Oct. 27, 2020) (reversing court of appeals and dissolving temporary injunction against Governor Abbot per curiam, with separate concurrences by Justice Eva Guzman and Jimmy Blacklock).

  6. C.L. says:

    Bettencourt can suck it.

  7. Mainstream says:

    “the rationale was not only to facilitate access to the franchise, but to mitigate COVID-19 infection risk by reducing congregation associated with in-person voting”

    are there any peer-reviewed studies regarding whether anyone has ever acquired COVID from voting in person?

  8. C.L. says:

    Mainstream, how exactly would that study be conducted ?

  9. Kibitzer says:

    Below is a cite and abstract for one empirical study that examines the nexus between voting method (in-person vs absentee) and COVID-spread statistically.

    The Relationship between In-Person Voting and COVID-19: Evidence from the Wisconsin Primary

    By Chad Cotti Ph.D., Bryan Engelhardt Ph.D., Joshua Foster Ph.D., Erik Nesson Ph.D., Paul Niekamp Ph.D.
    NBER Working Paper No. 27187
    https://www.nber.org/system/files/working_papers/w27187/revisions/w27187.rev2.pdf
    May 2020, Revised Version dated August 17, 2020

    ABSTRACT:

    On April 7, 2020, Wisconsin held a major election for state positions and presidential preferences for both major parties. News reports showed pictures of long lines of voters due to fewer polling locations and suggested that the election may further the spread of the SARS-CoV-2 virus.

    A contact-tracing analysis by the Wisconsin Department of Health Services identified 71 confirmed cases of COVID-19 linked to in-person voting, but no research has conducted a broader analysis of the extent to which in-person voting increased the number of COVID-19 cases.

    We use county level data on voting and COVID-19 tests to test for a link between the election and the spread of the SARS-CoV-2 virus. We find a statistically and economically significant association between in-person voting density and the spread of COVID-19 two to three weeks after the election.

    Results indicate that on average a 10% difference in in-person voters per polling location between counties is associated with approximately a 17.7% increase in the positive test rate. Further, extrapolation of estimates from the average county suggests that in-person voting was related to approximately 700 more COVID-19 cases in Wisconsin during the weeks following the election, or about 7.7% of the total number of confirmed cases during the five week post-treatment time
    period studied.

    Keywords: Absentee Voting, Coronavirus, COVID-19, In-Person Voting, Wisconsin Primary Election, Pandemic, SARS-CoV-2

    JEL No. D72,H75,I1,I18

  10. […] The first bill out of the gate is a bill to restrict county election administrators from sending vote by mail applications to […]