Masks and “finger condoms” optional. | Patrick Feller
Michael King,  July 13

Texas Plagues

As the pandemic spreads, Texans go to the polls

Masks and “finger condoms” optional. | Patrick Feller
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Two weeks ago, Texas voters began early in-person voting for a statewide July 14 primary run-off election that happens to coincide with the state’s worst spikes in coronavirus infections since the pandemic arrived, with Texas now in a hot race to the bottom with Florida and Arizona. Some models anticipate the peak of hospitalizations, threatening to overwhelm state health care resources, right about election day.

Presumably, this is not exactly what Republican leaders had in mind when they went to court in April to argue against universal voting by mail—an assistant attorney general suggested that conditions might improve by mid-July. Texas held its primary on March 3 and the runoffs for candidates who came in with less than 50 percent of the vote were originally scheduled for May 26. But Gov. Greg Abbott issued an emergency declaration in March, declaring that voting in May “would cause the congregation of large gatherings of people in confined spaces and force numerous election workers to come into close proximity with others, thereby threatening the health and safety of many Texans.”

Well, here we are in July: it’s hot, the plague is virulent, and it’s fallen to local election officials to do what they can to enable voting while protecting public health and safety. The risks Abbott described in March are more serious now than they were then. The same might well be true for the general election in November. So why not steer Texas toward the obvious solution—apparent even to Republican governors elsewhere—of allowing people to vote by mail?

Alas, Texas is under the political control of a GOP triumvirate that follows its president’s whims, as if they are bishops genuflecting to their pope. The governor, the lieutenant governor (who presides over the state senate), and the attorney general have militantly opposed proposals to open up voting by mail (VBM) options.

Beginning in April, the state’s lawyers, arguing that there would be no need to loosen rigid Texas restrictions on VBM, insisted that it was too early to know how bad the pandemic might be, and that the governor could direct other changes that would ensure the health and safety of voters. Now, Texans who don’t qualify to vote by mail get to choose between endangering their health (and their families) by going to the polls, or else deciding not to press their luck. Most recently, on July 2, Abbott reluctantly acknowledged the alarming rise in infections and hospitalizations by finally issuing a mask-in-public directive—with exemptions for churches . . . and polling places (where “wearing a face-covering is strongly encouraged”).

It does not require an excess of cynicism to speculate that the state’s fierce defense of limited mail voting marks yet another chapter in the Texas Republican Party’s decades-long project to suppress voter turnout. The state’s Voter ID law is commonly described as among the strictest in the country; it stands to reason that Texas is also among the handful of states that have refused to relax their VBM (aka “absentee voting”) restrictions despite a growing public health crisis.

Texas is under the political control of a GOP triumvirate that follows its president’s whims, as if they are bishops genuflecting to their pope.

Texas officially allows four categories of voters to request a mail ballot: persons over sixty-five, absentees, persons jailed but otherwise eligible, or those disabled by some “sickness or physical condition” that prevents them from voting in-person without endangering their health. Two lower courts (state and federal) ruled recently that under pandemic conditions, all persons at risk of infection are “disabled” for voting purposes; the state district judge was overruled by the Texas Supreme Court, and an even broader ruling by San Antonio federal judge Fred Biery was stayed by the U.S. Fifth Circuit Court of Appeals. The plaintiffs—the Texas Democratic Party joined by three individual voters under sixty-five—await hearings by that court and the U.S. Supreme Court, where their claim to universal VBM rests upon the directly constitutional grounds of the 26th Amendment—which explicitly forbids discrimination by age in voting laws.

The face of the state’s legal defense is not Abbott but Attorney General Ken Paxton, whose title might be prefaced with “Indicted”—since he’s been under indictment for five years now on two counts of securities fraud and one of failing to register with the state securities board, but remains untried thanks to protection from his high-priced attorneys. While his assistant AGs argue the VBM case, Paxton dispatches volleys of press releases—denouncing mostly imaginary voting fraud, declaring victory in courts stacked with Republican hacks, and (most importantly) threatening prosecutorial retribution against any election officials or voters deviating from his authoritarian interpretation of election law. (When he’s not issuing those threats, the releases announce his latest attempts to repeal the Affordable Care Act or restrict abortion access.) A few of these threats have been issued in immediate defiance of court orders against voter intimidation.

The third member of the GOP’s Austin triumvirate is Lieutenant Governor Dan Patrick, a former Houston radio jock who brought to the Capitol a TV evangelist’s combination of sanctimony and smarm. Months ago, Patrick made national headlines when he suggested that vulnerable elders should sacrifice themselves to Covid-19 in service to the national economy: “There are more important things than living.” Patrick weighed in on the VBM debate by calling the effort to expand voting rights a “Democrat scam” to steal elections, parroting the GOP refrain that if people can go to the grocery store and to the Home Depot, they can go to the polls. That was a day after state Supreme Court Justice Debra Lehrmann told the Dallas Morning News that she and her husband had contracted the virus—although they never left their homes without masks and gloves, and then only “to go to the grocery store.”

More recently, Patrick told the Trumpist dead-enders at Fox News that he would no longer follow the advice of Dr. Anthony Fauci, because Fauci had noted that the state’s failure to follow public health guidelines on face masks and distancing are fueling the pandemic. “He doesn’t know what he’s talking about,” declared Patrick, blaming the spikes on young people visiting bars.

The pandemic crisis didn’t create the weirdly surreal, irrational extremes of Texas Republican politics, but—like the luminol sprayed on a TV-crime scene to reveal bloodstains—it has amplified and highlighted the party’s hypocritical nonsense. The Texas Supreme Court hearing that resulted in refusing any expansion of VBM—nominally because “lack of immunity” to Covid-19 does not constitute a “physical condition” under state law, according to the dictionary consulted by several justices—was conducted entirely online (via Zoom) and prominently featured the “going to the grocery store” analogy. The related court hearings have also been conducted remotely, although courtrooms more readily accommodate the sort of “social distancing” and other prophylactic measures that will not be readily available in polling stations traditionally staffed largely by retirees. Nor will those poll workers have any enforcement authority to eject combative voters who refuse to wear masks or keep their distance. Election officials say poll staffers (and fellow voters) will just have to accept the risk.

Trump has launched attacks on voting by mail, falsely insisting it allows widespread voter fraud and even promoting a distinction between “absentee” ballots and “mail” ballots—although these are literally different words for the same thing.

The raging absurdity began at the White House, when Donald Trump dismissed the health threat, rejected the science, and of course refused to wear an anti-contagion mask, establishing that refusal as a visible symbol of MAGA resistance. Trump has also launched attacks on VBM, falsely insisting it allows widespread voter fraud and even promoting a false distinction between “absentee” ballots (“good”) and “mail” ballots (“bad”)—although these are literally different words for the same voting procedure. But Trump rules by tweet, and Republicans either fall in line or face excommunication.

Abbott, Patrick, and Paxton separately jockey for the approval of Texas Trumpist voters, each nursing their ambitions for higher office, but most immediately pandering to the hard-right, hard-white base that in recent years has determined the winners of every Republican primary. What might eventually break that pattern would be a few Democratic victories at the top of the ballot—since the wholesale flight of suburban whites to the GOP in the 1990s, Democrats have been shut out, with the last statewide victories occurring in 1994.

Current polling suggests that white suburban bulwark may be weakening. Hence, we return to voter turnout—and the relentless Republican project to suppress the vote, especially the vote of African Americans and Latinos. In 2019, the effort took the form of an attempted wide-scale voter purge by then Secretary of State David Whitley, employing irrelevant and outdated records to flag tens of thousands alleged “noncitizens” who were inaccurately accused of having voted in previous elections. The effort collapsed in fact and in court—and Abbott-appointee Whitley became the disgraced scapegoat. But the permanent purposes of the purge—to raise doubts about voting, and to discourage and intimidate minority voters—had been largely accomplished. Whether that ongoing campaign will succeed on into November remains to be seen, but obstructing VBM is yet another weapon in the anti-turnout arsenal.

The state’s fundamentally dishonest assault on voting by mail is part and parcel of that much broader project. Although VBM is undoubtedly subject to some amount of human error, the actual instances of successful fraud are few and almost never affect outcomes. And though Trump and his sycophants are now united in denouncing the procedure, it’s not even clear that VBM consistently gives either party an edge. You can’t find a clear partisan advantage in the mixed group of states (Colorado, Hawaii, Oregon, Washington, and Utah) that already send a ballot by mail to all registered voters. The existing research reflects that VBM tends to increase overall turnout, and that in most elections, Republicans and Democrats vote by mail in roughly equal numbers.

Although the Trump GOP is now ideologically committed to opposing VBM, states run by Republicans as well as Democrats have understandably moved to expand the practice during the pandemic. Historically, the GOP has endorsed VBM—with some presumption that it helps their candidates among elderly and military (absentee) voters. Writing recently in the National Review, former Republican National Committee Chair Michael Steele, although easily dismissed by Republicans because he has not toed the Trumpist lines, argued that the GOP is making a mistake in opposing voting by mail. He noted that polls reflect large majorities supporting the use of VBM during the pandemic, with Republican voters currently split almost evenly—a result likely influenced by Trump’s headline opposition.

But it’s also worth noting that voting-by-mail election systems, like any other, require specialized equipment, personnel, and planning, and the longer Texas or other reluctant states wait to expand VBM, the more likely voters will experience problems (as happened in Wisconsin in April) like delayed, missing, or inaccurate ballots, postal problems, and especially slow tabulation after election day—fertile ground for more doubts and conspiracy theories about election outcomes.

The more complicated, underfunded, or ill-planned any election system becomes, the more likely it will result in uncertain results, reduced voter confidence—and reduced turnout. If A.G. Paxton and his legal team succeed in stretching out any change in Texas voting procedures until late summer or early fall—and neither the Fifth Circuit nor the Supreme Court appear to be in any hurry to consider the question—it may not matter if the courts finally legalize universal VBM for November. It will be too late to effectively plan, prepare, and troubleshoot the new system. The state’s Republican regime, having ensured risk and fear at the polls in July, will be ready with more of the same in November, either to skew the outcome or create grounds for contesting results they consider unfavorable—or illegitimate, should they threaten the continued Republican domination of Texas, and the nation.

Michael King, a former news editor and staff writer at the Austin Chronicle and former editor of The Texas Observer, is now a contributing writer at the Austin Chronicle.

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