Texas is one of five red states that emerged as conspicuous holdouts this year as the rest of the country rushed to loosen voting rules because of the coronavirus pandemic. Many of the roughly 30 million registered voters who live there and in Indiana, Louisiana, Mississippi and Tennessee have no choice but to cast ballots in person this fall, even as the rate of coronavirus infection in the United States approaches its third peak.
The situation underscores how the nation’s decentralized election systems and Republican opposition to mail voting this year are translating into vastly different voting experiences for Americans, depending on where they live. Legal challenges to the voting limits have foundered in some courts, rejected by a federal judiciary that has shifted rightward under President Trump.
The restrictions have become a rallying cry for more liberal voters, with many expressing even more determination to have their ballots count. Voters in Harris County have turned out in droves for early voting, casting more than 1 million ballots so far and putting the county on track to surpass its entire 2016 turnout before Election Day.
Across the state, nearly 7.4 million people had already cast their ballots as of late Monday — exceeding the state’s total 2016 early vote by nearly 3 million.
“This just feels so urgent,” said Angela Martinez, 46, who was among scores of voters who arrived at Houston’s Metropolitan Multi-Service Center before sunrise to secure a place in line on the first day of early voting this month.
“I expect that older communities and those in poorer places will be disenfranchised, but that’s why I come here,” she said.
Despite the surge in turnout, voting rights advocates said the rules in these states limit access to the ballot box for less-privileged groups, including younger voters, people of color and, this year, people with medical conditions that leave them more vulnerable to the coronavirus. Louisiana, Mississippi, Tennessee and Texas have some of the country’s highest rates of poverty and chronic health conditions.
“My big question is: For what?” said Myrna Pérez, director of the Brennan Center’s Voting Rights and Elections Program, of voting restrictions in Texas. “How many compounding, cumulative barriers do we need to accomplish anything legitimate? . . . The inescapable conclusion is that there are some politicians that don’t want all of their voters voting.”
Abbott and other Republican officials say restrictions are necessary to prevent election tampering and ensure the security of mail ballots, even though there is no evidence that mail voting leads to widespread fraud.
“The State of Texas has a duty to voters to maintain the integrity of our elections,” Abbott said in a statement Oct. 1 as he restricted the number of drop-off locations per county. “As we work to preserve Texans’ ability to vote during the COVID-19 pandemic, we must take extra care to strengthen ballot security protocols throughout the state. These enhanced security protocols will ensure greater transparency and will help stop attempts at illegal voting.”
Abbott has taken some steps to relax rules around voting this year, his supporters note — extending early in-person voting by nearly a week and allowing Texans to return mail ballots in person before Election Day.
“Claims of voter suppression are willfully blind to the fact that this conversation is taking place only because Governor Abbott relaxed elections laws during a pandemic using his emergency powers,” Texas House Speaker Dennis Bonnen (R) wrote in a recent online post. “The fact that he has not relaxed them as much as some would like does not change the fact that he has made it easier to vote this cycle, not harder.”
The five states that do not allow fear of the coronavirus as an excuse to vote by mail this year also have some of the strictest rules in the country when it comes to voting generally. All of them have voter ID requirements, and none allow voters to register on Election Day. Mississippi does not offer widespread early in-person voting. Texas no longer allows straight-ticket voting for one party’s slate. And in Tennessee, giving someone an application for an absentee ballot is a Class E felony, requiring between one and six years in prison, unless the person providing the form works for an election commission.
Kristen Clarke, president and executive director of the National Lawyers’ Committee for Civil Rights Under Law, said rules like Tennessee’s “just shock the conscience.”
“It’s almost as if they’ve turned a blind eye to the pandemic,” she said of states that are not letting everyone vote by mail. “But any state that approaches this year as if the status quo will get us through this election season has failed the voters in their state. This is a moment that has made clear the unnecessary obstacles that we put up to voting.”
Legal battles rising
Efforts by Democrats and voting rights advocates to challenge these rules in court have largely failed, with judges appointed by Trump and other Republicans ruling in some cases that the risks of fraud cited by GOP officials require keeping restrictions in place.
Their decisions contrast with the opinions of many judges around the country appointed by both parties who have ruled that claims about fraud are overstated.
“States have critically important interests in the orderly administration of elections and in vigilantly reducing opportunities for voting fraud,” wrote Stuart Kyle Duncan, a Trump appointee on the U.S. Court of Appeals for the 5th Circuit, in a ruling this month that upheld Abbott’s limits on drop-off locations.
On the conservative 5th Circuit, which covers Texas, Louisiana and Mississippi, 19 of 27 judges were appointed by GOP presidents, including six by Trump.
Luis Vera Jr., general counsel for the League of United Latin American Citizens (LULAC), said the courts’ shift further to the right has made it harder to fight for voting rights in Texas. While advocates can win brief victories before federal district courts, he said, those gains are reversed once the state appeals to the 5th Circuit. Then their only recourse is to appeal to the Supreme Court, demanding significant time and resources.
“It’s always the same thing,” said Vera, who has represented LULAC for more than two decades and brought the suit over Abbott’s order that is now before the 5th Circuit. “They rely on the court — not on their arguments — to save their butts. It’s harder for us than them. The courts are stacked against us.”
Voting rights advocates have won a few victories in the other states that do not permit universal mail voting this year, allowing people who are vulnerable to covid-19 for medical reasons, their caretakers and household members to vote by mail in Tennessee, and people with similar qualifications to cast mail ballots in Louisiana.
But in Texas, such legal challenges have been less successful. The Texas Supreme Court, which has no Democratic-appointed judges, has also upheld voting restrictions this year, ruling against expanded eligibility for mail voting and blocking Harris County Clerk Chris Hollins from sending unsolicited mail ballot applications to registered voters.
A decision last week from the U.S. Court of Appeals for the 5th Circuit allowed election officials to reject ballots in Texas based on mismatched signatures without guaranteeing voters the chance to fix problems.
On Thursday, the Texas Supreme Court declined an appeal from election workers in Dallas County who were fired for not wearing masks. The court also allowed drive-through voting to proceed in Harris County, which includes Houston, ruling against Republicans who argued the program is illegal.
Democrats say the GOP is using voting restrictions and litigation to play politics as demographic forecasts raise concerns about its future in the state.
“They are desperate. They are desperate to hold on to power, and they know that the jig is almost up, and they don’t care — they don’t care if it’s illegal. They just want to succeed at this point because that’s all that counts,” said Dana DeBeauvoir, the county clerk of Travis County, home to the predominantly Democratic city of Austin.
Republicans intensified their focus on Houston’s Harris County starting in 2008, when Democratic votes for president edged out Republican votes for the first time in more than four decades. The blue wave of 2018 solidified Democrats’ power in the diverse and fast-growing region.
This fall, Hollins tripled the number of early-voting locations and is adding options for drive-through and 24-hour voting.
Harris County Republicans said last month that his policies could have “implications for the national election,” a sign of the GOP’s concern about the state’s most populous county as a political battleground.
“In the November 3, 2020 presidential election, as Texas goes so too will the rest of the country,” the GOP stated in a lawsuit against Hollins. “If President Trump loses Texas, it would be difficult, if not impossible, for him to be reelected. As Harris County goes, so too will Texas.”
Bill Miller, a prominent Texas lobbyist who has worked for both parties, said each side is seeking to play to its advantage when it comes to turnout.
“Republicans probably want to control voter turnout because that’s in their best interest this year,” he said. “This year, huge, huge voter turnout probably doesn’t bode well for them.”
Burdens on voters
Limits on voting are most prevalent in the South, where changes to state policies previously had to be approved by the federal government because of the region’s history of suppressing the vote among Black people.
Seven years after the Supreme Court overturned key provisions of the 1965 Voting Rights Act, efforts to relax rules around mail voting in 2020 have thrown the most extreme restrictions into sharp relief.
The Supreme Court has recently upheld some voting restrictions in GOP-controlled states.
Earlier this month, justices ruled that mail ballots in South Carolina must arrive with a witness signature, reversing lower courts that ruled voters could forgo the requirement because of the pandemic. And last week, Alabama won a legal battle over so-called curbside voting when the Supreme Court ruled the state could prohibit counties from offering it to people who are disabled or concerned about contracting the coronavirus. The court’s liberals dissented in the 5-to-3 decision.
Voters across the country are turning out in person to cast ballots early in record numbers, including in the five states that did not expand eligibility to vote by mail. As of Monday, all but Tennessee had already exceeded their early vote totals from 2016.
Many voters have said they are turning out now to avoid the potentially large crowds on Election Day — only to encounter hours-long lines.
On Oct. 13, voters waited 40 minutes to an hour in the hot sun to cast ballots at Rice University’s football stadium in Houston. Voting machines were set up inside Gate 1, where people typically show their tickets. At one point, the lines stretched around the covered entrance, all the way out of the gate and around the corner, with voters standing six feet apart.
“There’s so much anxiety for me around this particular election that I felt like if I could vote as soon as possible at least I’d have that off my plate,” Emily Kemper, 51, said before voting.
Kemper’s husband, Gregory, 63, has bladder cancer that has spread to his lungs. Under Texas law, being sick counts as an excuse to vote absentee. He said he considered requesting a mail ballot but was worried he would not qualify. So they came to vote in person, despite the crowds and the lack of shade.
“I didn’t trust the fact that I was going to be able to do it, and I didn’t trust that it was going to be counted,” Gregory said of mail voting.
Hernández reported from Houston. Robert Barnes, Lenny Bronner, Jose A. Del Real, Kate Rabinowitz, Neena Satija and Aaron Schaffer in Washington and Brittney Martin in Houston contributed to this report.