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April 22nd, 2021:

Making voting worse

I’ve spent a lot of time this year writing about how Republicans in the Legislature want to make it harder to vote. That’s undeniably true, but it doesn’t fully capture what’s going on. Voting is a thing that most of us do, and the process of voting is basically a service that your local government provides. The goal of the Republican bills in the Legislature, both the omnibus HB7 and SB6 but also the smaller and crazier bills that have garnered much less attention so far, is to make that service worse, now and in the future, and especially when external circumstances like a global pandemic make it harder to vote to begin with.

This Trib story is a straightforward analysis of what SB6 and HB7 do, and there’s also a good explainer in Vox, which I want to highlight.

The Senate bill imposes new rules limiting precinct placement that only apply to large urban counties. It punishes county registrars who don’t sufficiently purge the voter rolls, threatening a repeat of a 2019 fiasco in Texas in which nearly 100,000 recently naturalized citizens were pushed off the rolls. And it prohibits practices pioneered in Democratic-leaning counties designed to improve ballot access during the pandemic, like 24-hour voting.

The House bill, meanwhile, makes it nearly impossible to kick partisan poll watchers, who have historically been used to intimidate Black voters, out of precincts.

“SB 7 looks at what made it easier for people to vote in 2020, particularly communities of color — and then with a laser focus goes and removes those [rules],” says Thomas Buser-Clancy, a staff attorney at the Texas ACLU.

They weren’t rules (I don’t know what Buser-Clancy actually said), they were innovations. These innovations – 24-hour voting, curbside voting, multiple drop boxes for mail ballots, sending mail ballot applications to eligible voters – were things that were allowed in the sense that they weren’t explicitly forbidden. When election administrators, mostly but not exclusively in the big urban counties and exemplified by Chris Hollins, used their creativity and their desire to make it easier and safer to vote, that was the line in the sand that was crossed. Where their actions were upheld by the courts, it was because what they did was allowable under the law as it was. The point here is to remove any possibility of future innovations.

The Senate and House bills both contain a large number of revisions affecting different aspects of state election law — some trivial, others potentially significant.

One of the most notable, according to experts and activists, are the Senate bill’s new rules about the placement of voting precincts and the allocation of election resources, like staff and voting machines.

Under current law, Texas counties have significant discretion about where to set up precincts and where to put their resources. The Senate bill changes these rules, but only for counties with more than 1 million residents. There are five such counties in Texas, all of them urban Democratic strongholds: Harris County (Houston), Dallas County (Dallas), Tarrant County (Fort Worth), Bexar County (San Antonio), and Travis County (Austin).

In these five counties, SB 7 would require that precincts and resources be allocated proportional to the percentage of the county’s eligible voters living in specific areas. This method has two major features that are likely to make voting in Democratic-leaning areas harder.

First, any measure of “eligible voters” would have trouble accounting for very recent population change — likely undercounting younger, heavily minority areas with high growth rates while overcounting older, whiter ones. Second, many Texans vote near their place of work in the city center, so allocating resources by population would underserve urban areas with lots of offices.

The result? In the big Democratic-leaning counties, precincts will be less conveniently located and more likely to have long lines. This could have an effect on outcomes: Studies of elections in California and Texas have found that cutting the number of precincts in a county leads to a measurable decrease in local voter turnout.

“Harris County and Travis County did a good job at distributing polling places in areas where there was a high number of potential voters and where there was a likelihood of higher turnout among ethnic and racial minorities,” says Brandon Rottinghaus, a political scientist at the University of Houston. If SB 7 is passed, “that’s going to change.”

Another important provision of SB 7 requires county registrars to check their voter logs against state data on individuals “determined to be ineligible to vote because of citizenship status.” The registrar must remove voters on these lists from the voter registration lists; they would be personally fined $100 for each name they left on the voter rolls.

Voting rights activists worry that this is a backdoor effort to revive a 2019 voter purge struck down in court, an effort that tried to kick tens of thousands of recently naturalized voters off the rolls by using outdated citizenship status for them. The provision would also serve as a deterrent to people working as volunteer registrars — nobody wants to be fined hundreds of dollars for simple mistakes — which would significantly undermine the in-person voter registration drives that depend on their work.

“It’s kind of underrated but might be the biggest provision of SB 7,” says Joseph Fishkin, an election law expert at the University of Texas Austin. “There’s a real partisan skew as to who benefits from drying up the pool of new voters.”

wThe two bills would also significantly expand the powers of poll watchers, partisan operatives who observe the voting process to protect the party’s interests.

SB 7 allows poll watchers to film voters while they are getting assistance from poll workers, potentially intimidating voters with disabilities and non-English speakers. They are nominally prohibited from distributing their footage publicly, but there’s no enforcement mechanism or punishment — so there’s nothing really stopping them from sending misleading footage to fringe-right websites and claiming they prove “fraud.”

HB 6 makes matters worse by making it impossible to kick out poll watchers for any reason other than facilitating voter fraud, even if they are disrupting the voting process in other ways. The experts I spoke to said this applies even in extreme cases: a drunk and disorderly poll watcher, for example, or a jilted spouse who starts a fight when their ex shows up to vote.

It’s hard to say how these provisions would affect elections; poll watchers have had little impact on recent American elections. But the history of the practice gives us reasons to be skeptical about expanding their powers: Watchers have historically menaced Black voters trying to exercise their rights.

And there are many other notable aspects of the two laws.

Remember those ridiculously long lines at the TSU early voting location during the 2020 primaries? That was the result of having the same number of Republican and Democratic voting machines at a site that was heavily Democratic (remember, this was a primary). The effect of SB6 and HB7 will be to make more places have such lines. Really, that’s the idea in general: Fewer locations, shorter hours, longer lines, more disruption, and a total clampdown on any bright ideas that local officials may have to make the experience better. Make voting worse. That’s what it’s all about. Go read those stories and give it a thought in those terms. When I’ve said that Democrats in 2022 should campaign on making it easier and more convenient to vote, this is what they’d be campaigning against.

The guilty verdicts in the George Floyd murder trial

I didn’t comment on this yesterday because I didn’t have anything original to say. Today I want to echo what so many others are saying in the wake of the guilty verdicts for the police officer who murdered George Floyd. This was a first step, there’s much more to do.

Floyd’s murder sparked nationwide Black Lives Matter protests across the U.S. and in Texas during the summer and prompted renewed calls for police reform. And Texas police departments garnered criticism for their use of force during those protests. Before this year’s legislative session began, the Texas Legislative Black Caucus unveiled the George Floyd Act that would ban chokeholds and limit police use of force in an effort to protect Texans from police brutality.

Members of the caucus celebrated Chauvin’s conviction by pumping their fists and hugging during a Facebook Live stream. Many state legislators, including multiple caucus members, responded to the verdict with public calls to pass the caucus’ police reform bill, or House Bill 88, which was left pending in committee in March following a debate over a provision that would remove police officers’ legal shield against civil lawsuits.

“A just verdict, but this is only one step, and it can never bring George Floyd back,” state Rep. Sheryl Cole, D-Austin, wrote on Twitter. “Now we must pass the George Floyd Act and other reforms so that we never have to do this again.”

I do not expect HB88 to pass – it likely won’t get a committee vote, and if it does it probably never makes it on the calendar. Republicans generally don’t support the removal or reduction of qualified immunity for police. It’s the same in Congress with the national version of this legislation. That one at least passed the US House, and is among the other bills that are sidelined by the usual filibuster bullshit. Still, it has a chance, albeit a slim on at this time.

During a press conference, Houston Mayor Sylvester Turner called for reflection, and he said he and the Houston Police Department would be announcing police reforms next week. Turner said reform is a constant process that also includes investing in underserved communities, like the Third Ward, in a “real and tangible way.”

“Justice has been served,” Turner said. “The Floyd family has waited for almost a year for this verdict, but I will quickly say that they will experience the loss of their loved one, George, for the rest of their lives.”

We’ll see what’s in those long-awaited reforms. I don’t think people will be happy with a small-ball approach here. If we’re not going to take at least one big swing, I’m not sure what we’re doing.

Medicaid expansion by any means necessary

Whatever it takes. But I’ll believe it when I see it, and I have a very hard time believing that the current cast of characters will do anything to make it happen.

It’s constitutional – deal with it

Texas Republicans have been swift to condemn the Biden administration for rescinding early approval of a multibillion dollar Medicaid program that would help fund emergency care for the state’s booming uninsured population through 2030.

Gov. Greg Abbott said the federal government was “deliberately betraying Texans.”

Attorney General Ken Paxton vowed to “use every legal tool available to regain the assistance Texans need.”

But the decision federal health officials announced Friday could end up being one of the biggest steps yet to extend government health coverage to low-income people in Texas since the Affordable Care Act, according to health advocates and political observers. That’s true even if it doesn’t spur immediate change.

“The Biden administration has all the cards here,” said Brandon Rottinghaus, who teaches political science at the University of Houston. “They aren’t playing nice anymore with health care expansion. They’ve got the money, so they have the leverage.”

Pressure is also coming from inside the state. On Tuesday, a group of more than 150 organizations, including chambers of commerce, trade associations and local officials signed a letter calling on lawmakers to “support increased health coverage for Texans.”

“We specifically support a coverage initiative that is bipartisan, funded through available federal dollars, structured to be neutral for the state’s budget, and designed to meet Texas’ specific needs, values and circumstances,” it said.

The letter notably did not include the Texas Hospital Association, which criticized Friday’s decision. It has supported expanded coverage in the past.

[…]

Health care advocates have been quick to downplay Friday’s announcement, saying there is still plenty of time for the state to apply again for the waiver before next year. Texas was originally approved for the extension as part of a flurry of eleventh-hour orders by Trump health officials. In doing so, it allowed the state to forgo the normal comment period.

“I think of it in terms of, Texas didn’t follow the rules, and now it’s being told to follow the rules,” said Elena Marks, president of Episcopal Health Foundation in Houston. “It’s not being told, ‘you can’t have an uncompensated care pool.’ In fact, we need an uncompensated care pool, we ought to have one. But we have to follow the rules.”

See here for the background. Rescinding the 1115 waiver extension and making Texas follow the process to re-apply for it is a shot across the bow, but a limited one. If Texas does re-apply correctly, that extension will almost certainly be granted, though perhaps for a shorter period of time or with more strings attached. The current position of the Texas Hospital Association, which is on the sharp end of the stick right now, gives Abbott et al some cover. And as the story notes, Abbott has a primary election coming up, and the very last thing he will want to do before he wins that is anything that will make it look like he capitulated to Joe Biden and the Democrats. Maybe something happens after that, but politically speaking the incentives are all wrong.

This Trib story from Wednesday afternoon appears to offer a bit of hope, but don’t be fooled into thinking it’s more than that.

Among several bills filed in the conservative Texas Legislature is a Medicaid expansion plan with bipartisan support that is similar to those adopted in some Republican-led states.

Nine House Republicans and all 67 House Democrats have publicly signed on to House Bill 3871, which would give it enough votes to pass the 150-member chamber. Although none of the proposals have gotten a hearing this session, Medicaid expansion is expected to be introduced in some form as a floor amendment Thursday when the House debates the state budget.

[…]

“The time to do this is now,” said state Rep. Julie Johnson, D-Carrollton, the author of House Bill 3871. “The deal on the table that the [federal] government offered to us is, in my opinion, irresponsible not to accept.”

Conservative lawmakers are weighing their historic opposition to Medicaid expansion against the potential of billions in federal incentives coming to Texas during a tight budget cycle.

“There is a bipartisan desire to see the cost of health care decrease. The unsustainable increase in prices, whether at the hospital, the doctor, or in health insurance premiums hits all Texans,” GOP state Rep. James Frank, chair of the House Human Services Committee, said in emailed comments to the Tribune. “But there is also concern that when Medicaid expands, that adds pressure to the private insurance market to make up the difference in reimbursements. Hence, expansion is a hidden tax on those who have private insurance, driving up the cost of care for everyone.”

[…]

Lt. Gov. Dan Patrick’s and Gov. Greg Abbott’s offices did not respond to requests for comment, but both have opposed expanding Medicaid in the past. In January, House Speaker Dade Phelan expressed doubt that Medicaid expansion would happen this session.

Among other arguments, opponents say it would crowd out current Medicaid patients who are already getting a low quality of care due to the limited number of physicians who accept Medicaid patients because of low reimbursements.

It’s nice that there are 76 votes for a bill that hasn’t gotten a hearing and would still have to get through the Senate and be signed by Greg Abbott, but it’s still vaporware for now. (Rep. Frank, the House Human Services Committee Chair, is not among the nine Republican co-authors.) The same old tired arguments against Medicaid expansion, by people who don’t like Medicaid but claim to want to “protect” it, continue to have sway. Honestly, about 95% of this story could have been written in 2019, or 2017, or 2015, or 2013. It’s a tale as old as time at this point. The urge among Republicans to stick it to Obamacare at all costs has not abated. I don’t see anything to suggest to me that something has changed in this dynamic. I will be delighted to be wrong, but until I am proven wrong I say it ain’t gonna happen until we elect enough Democrats to make it happen.

Texas blog roundup for the week of April 19

The Texas Progressive Alliance now accepts contributions in dogecoin as it brings you this week’s roundup.

(more…)

One crime Texas isn’t so tuff on

And that’s sexual assault, in the category of crimes Deshaun Watson has been accused of.

As the Houston Police Department investigates at least one criminal complaint against Deshaun Watson, a review of the allegations made in civil court against the Texans quarterback show officials could be limited to pursuing misdemeanor charges for all but a few serious accusations.

More than half of the 23 women who sued Watson say he made sexual contact without their consent. In Texas, that’s a misdemeanor in criminal court, on par with burglary of a vehicle or property theft between $750 and $2,500.

Three plaintiffs allege that Watson either forced or coerced fellatio — a second degree felony punishable by two to 20 years in prison and a fine of up to $10,000.

[…]

Texas lags behind some states in punishing offenders in cases of sexual assault that don’t rise to the level of rape. The Houston Chronicle analyzed a database of sex crimes laws across all 50 states compiled by the Rape, Abuse and Incest National Network. It found that unwanted sexual contact described in more than half the lawsuits — where there is no penetration involved — is a felony in a dozen of them, but not in Texas.

Experts say classifying what Watson is accused of doing as misdemeanor indecent assault minimizes the seriousness of such crimes and discourages victims from coming forward.

“The gravity of indecent assault or indecent acts can vary so substantially,” said Geoffrey S. Corn, South Texas College of Law Houston’s Gary A. Kuiper Distinguished Professor of National Security Law. “Compelling someone to touch your genitals or touching them with your genitals is a much more aggravated crime” than grabbing someone’s buttocks.

[…]

Other states impose harsher punishments than Texas. In Utah, for example, forcible sex abuse — touching a person’s anus, buttock, pubic area or any part of someone’s genitals, or touches a female’s breasts — is a second-degree felony punishable by one to 15 years in prison.

Alaska classifies non-consensual sexual contact as sexual assault in the second degree, a class B felony. It’s punishable by up to 10 years in prison and a $100,000 fine.

But in Texas, the same crime is only a class A misdemeanor. At most, a person found guilty of indecent assault would receive a year in jail and be fined $4,000.

Corn said each offense could be punished separately. But still, “treating it conclusively as a misdemeanor is troubling,” Corn said.

I should note that the penalties cited in this story are the maximum for the given crime. Most likely, an offender who was convicted or accepted a plea for them would get a lesser sentence. I’ve learned enough over the years to be very skeptical of aggressive punishments for most crimes, as they seldom have any positive effect on the frequency with which those crimes are committed, and of course because of the great racial disparities in our criminal justice system. That doesn’t mean Texas has the right idea with its punishments for these non-rape sex crimes. If anything, it tells us more about the state’s attitude towards this kind of crime. (*) There are a lot of reasons why people (mostly but not entirely women) are reluctant to come forward when they are victimized in this fashion, but the prospect of seeing their attacker get off with a light sentence even in the best case scenario is surely one of them.

(*) – Compare, for example, to the multi-year prison sentence Crystal Mason got for voting when she wasn’t eligible. If her conviction is upheld by the Court of Criminal Appeals, she would serve more time than Deshaun Watson would if he were convicted under most of the charges levied against him.