Mail-In Ballot Confusion Continues to Abound in Harris County

Harris County Clerk Chris Hollins has been ordered by the Texas Supreme Court not to send mail-in ballot applications to all county voters as he'd planned until a lawsuit is settled.
Harris County Clerk Chris Hollins has been ordered by the Texas Supreme Court not to send mail-in ballot applications to all county voters as he'd planned until a lawsuit is settled.
With Election Day right around the corner and early voting in Texas kicking off a mere 25 days from now on October 13, Houston area voters are still trying to make sense of the ongoing battle over mail-in ballots between the Democrats who lead Harris County and the state government’s Republican leadership, all while many local post offices are perplexingly refusing to make free voter registration applications available to their customers.

“Confusion reigns, and the worst thing you can have in an election where you’ve got a lot of attention, tremendous polarization and a pandemic is confusion” said Brandon Rottinghaus, a University of Houston political science professor.

The United States Postal Service tried to alleviate some of that confusion by sending out mailers to reassure voters that it’s up to the task of “providing you a secure, effective way to deliver your ballot,” because nothing elicits confidence like a government agency spending money to tell folks “We can DEFINITELY do our job, we promise!”

Nothing elicits confidence like a government agency spending money to tell folks “We can DEFINITELY do our job, we promise!”

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Local USPS locations are also facing blowback after the nonpartisan League of Women Voters said at least 51 post offices around Harris County either threw out free voter registration applications the group donated or refused to take them in the first place. Democratic U.S. Reps Al Green and Sylvia Garcia and Houston Mayor Sylvester Turner have all demanded that Houston USPS leaders reverse course and make the materials available, but the local postal service hasn’t made any policy changes based on those requests.

Most confusing of all is the legal fight over Harris County Clerk Chris Hollins’s ambitious plan to send all 2.4 million Harris County voters applications for mail-in ballots, which is still in a holding pattern thanks to a lawsuit from Texas Attorney General Ken Paxton and a little help from the 100 percent-Republican Texas Supreme Court.

Paxton sued Hollins back on August 31, claiming Hollins’s ballot plan represents an abuse of power and is against state law, but state election experts disagree. So does Democratic State District Judge R.K. Sandill, who ruled against Paxton in a hearing last week. Undeterred, Paxton immediately filed an appeal with the Fourteenth District Court of Appeals.

He then called up his friends at the Texas Supreme Court to see if they could do anything to stop Hollins from mailing out applications in the meantime. The state’s highest court obliged Paxton on Tuesday, when it ordered Hollins not to send out any more mail-in ballot applications until Paxton’s case had run its course.

“Fortunately, all vote-by-mail applications have already been delivered to Harris County voters aged 65 and above,” Hollins tweeted in response to the state Supreme Court’s order. “My office is prepared to send applications and educational materials to remaining registered voters at the conclusion of this baseless litigation,” he continued.

A local lawyer and the vice chairman for the Texas Democratic Party, Hollins was appointed to his post after the previous County Clerk Diane Trautman retired this summer due to health concerns. The mail-in ballot fight will likely be the defining element of Hollins’s tenure — which might explain his tenacity in pushing ahead with his plan — as he has promised to only stay on as Harris County Clerk for the rest of the year. A new clerk will be elected to fill out the rest of Trautman’s term during November’s election.

Paxton and his Republican allies have claimed that increasing mail-in voting for the upcoming election would result in significant voter fraud, but Rottinghaus disagrees. “Although fraud happens in some small ways, it’s not widespread in any way. The process to protect mail ballots is pretty firm, and the ability to be able to manipulate that system in a significant way is too hard for any one party or one candidate to pull off,” he said.

On Tuesday, Harris County Commissioners Court approved $1.5 million to pay for printing up to 1.5 million mail-in ballots for the November election. But with Paxton’s case still pending and Tuesday's state Supreme Court order barring Hollins from sending out more applications, the number of ballots that’ll need to be printed will surely be far less than it would have been without all the Republican interference.

Texas is one of only 16 states with limitations on who can request a mail-in ballot. “In that sense, Texas is behind the times,” said Mark Jones, a political science professor at Rice University, “so what Chris Hollins is trying to do is simply try to get Texas as close as possible to where the rest of the country is.”

Voters over 65 are the only group with ironclad eligibility to receive a ballot by mail in current state election law. Other groups that legally qualify for a mail-in ballot under Texas’s restrictive mail voting laws are voters who will be out of the county during the election period, incarcerated voters and voters with a disability.

The definition of a disability here is — surprise, surprise — pretty confusing. In a previous case from earlier in the summer, the Texas Supreme Court ruled that fear of catching the coronavirus didn’t by itself qualify as a disability as far as mail-in ballot eligibility is concerned. However, the ruling also stated that Texans can factor in their overall health history to decide themselves whether or not they qualify as disabled, and that election workers don’t have the legal right to make voters prove they’re actually disabled if they request a mail-in ballot.

“What’s very clear is that none of these applications are going to be vetted prior to the election,” said Jones. “The county isn’t going to probably prosecute anybody for voting absentee when they really were not eligible, although it would be committing a felony.”

Jones warned that in the event of an extremely close race decided by only a handful of votes, he wouldn’t be surprised if the losing candidate chose to take the publicly available data on which voters requested mail-in ballots based on an alleged disability and combined it with demographic info that can help predict those voters’ party affiliation. Then, any mail-in voters claiming disability who that candidate thinks probably voted for their opponent could be investigated by the aggrieved campaign, with the hope that some of those votes might be thrown out if any of those voters can be proven not to be disabled after all.

“That’s probably the only time where someone would actually potentially get prosecuted,” Jones said.

It’s unclear when Paxton’s lawsuit will be settled, but state law says mail-in ballot applications have to be received by the county clerk’s office by October 23 in order to be distributed in time, so there’s a pretty good chance state Republicans could prevail in their efforts to stop Hollins if the case drags out long enough, even if the case gets decided in Hollins’ favor.

“Republicans who are challenging the approach to mail ballots that the county is taking can simply run out the clock,” said Rottinghaus.

“If Harris County isn’t able to mail out those applications by October 1, [or] the first week of October, it’s unlikely that they would have any real effect,” Jones said. “In fact, they might even create more confusion, because you would get people mailing in applications for an absentee ballot, but by the time they got their ballot it might be too late.”

What could have a real effect on the upcoming election is if a significant number of Harris County residents throw their hands up and decide not to vote after all because they’re so confused about the voting process.

“It is a demobilization strategy that has the effect of hurting the turnout in Texas, which hurts democracy,” Rottinghaus said.