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Unconventional Wisdom – September 3, 2020

Hereโ€™s one way to think about who wants more people to vote and who doesnโ€™t.

Are they working to fix what they think is wrong, so that more people will vote, or are they working to protect the obstacle course that separates many Texas voters and the ballot box?

Gov. Greg Abbottโ€™s order extending the early voting period is evidence of the former. That move is intended to make it easier to vote early by leaving more time for it, offering voters a chance to get their business done before the deadline rush on Election Day.

Other moves, from people including President Donald Trump and Texas Attorney General Ken Paxton, look unhelpful at best, or at worst, like tampering.

Texas allows people to vote absentee if they meet one of several conditions: that theyโ€™ll be out of their home county during the entire voting period, that theyโ€™re eligible to vote but in jail, that they are 65 years old or older, or that they cite a disability or illness that prevents them from voting in person without โ€œinjuring the voterโ€™s health.โ€

The Texas Supreme Court ruled in May that the lack of immunity to COVID-19 doesnโ€™t qualify someone for that last exception, but it also wrote, โ€œWe agree, of course, that a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability.โ€

Applications for absentee ballots donโ€™t require voters to identify their disabilities.

The latest Texas battlefield is in the stateโ€™s most populous county, where state officials are working to stop Harris County officials from sending unsolicited applications for absentee ballots to all voters.

That court fight is very much alive, but the Texas Supreme Court has put a temporary hold on the mailings. The Harris County Republican Party sued to stop the county clerk from mailing those applications, saying local officials donโ€™t have the legal authority to send the forms to people who havenโ€™t asked for them. The stateโ€™s major political parties, on the other hand, regularly mail the applications to voters who havenโ€™t requested them.

That legal challenge โ€” with the argument that itโ€™s confusing to send applications to voters who might not be qualified to vote by mail โ€” proved to be an attractive cause for other Republicans. Paxton has a lawsuit, too, filed on behalf of the Texas secretary of state. Harris County has said it would let voters know, in detail, whether they may qualify for mail ballots, and takes the position that itโ€™s trying to make sure everyone who can do so has an application for it.

While the lawyers argue, voters can always ask for their own absentee voting applications, decide whether they qualify to vote by mail and proceed accordingly. Some wonโ€™t go to the trouble, just as some people wonโ€™t be troubled to vote.

Voting by mail has devolved into a partisan food fight in this fraught election season. As the combatants have framed this, itโ€™s about whether, on one hand, elections are reasonably free of fraud (itโ€™s rare and illegal), and on the other, whether everyone who wants to vote can do so without running a bureaucratic obstacle course (they canโ€™t).

Thatโ€™s for the courts to untangle, maybe even before we all vote.

This isnโ€™t a universal fight, even though the president is conducting a national campaign about the dangers of casting a vote with an envelope and a stamp instead of by standing in line and using a machine in public. Most states let all of their eligible voters decide whether to vote in person or by mail. Some mail ballots to every registered voter, whether requested or not.

Texas makes it harder than that, and state officials are fighting to keep it that way. Some argue โ€” with little evidence โ€” that voting by mail is insecure, raising questions about the integrity of the results after the votes are counted.

Thatโ€™s the argument Trump has adopted โ€” that election fraud is easier when voting by mail is the method. Texas Lt. Gov. Dan Patrick has called efforts to expand absentee voting this year a โ€œscam by Democrats to steal the election.โ€ In particular, he was referring to a still-pending lawsuit filed by the Texas Democratic Party that says people under age 65 have as much right as their elders to vote by mail.

Texas already has limited absentee voting; the question is whether itโ€™s open to everyone. The law says itโ€™s not, but lawyers are challenging that. That legal tussle hides a simpler argument about making voting easier than it is now.

One of the legal briefs supporting Harris County Clerk Chris Hollinsโ€™ proposal is on a grocerโ€™s letterhead, filed on behalf of Charles Butt, chair of H-E-B, by his attorney, Wallace Jefferson, a former chief justice of the Texas Supreme Court. Butt likened Harris Countyโ€™s plan to distribute absentee applications to his companyโ€™s response to the pandemic: allowing pickup orders and expanding home deliveries.

โ€œTexas requires an excuse to vote absentee but, as your Court has recently held, does not permit election officials to second-guess a voterโ€™s exercise of that option,โ€ Butt wrote. โ€œThus, Clerk Hollinsโ€™s effort to make absentee ballots widely available trusts voters, protecting those who are vulnerable from unnecessary exposure in this new Covid world in which weโ€™re living.

โ€œItโ€™s always been my impression that the more people who vote, the stronger our democracy will be.โ€

Disclosure: H-E-B, Charles Butt and the Texas secretary of state have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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Ross Ramsey co-founded The Texas Tribune in 2009 and served as its executive editor until his retirement in 2022. He wrote regular columns on politics, government and public policy. Before joining the...