As Texas governments closed down wide swathes of its public spaces and its citizens cascaded indoors, advocates for revamping the state’s voting system began pushing the envelope for expanded mail-in-voting.
Ever since, county election boards have experienced steep increases in mail-in-ballot requests. Although, after the first day of early voting for the July runoff Travis County reported a lower number of combined in-person and mail-in-ballot submitted than the same day in 2018.
The Lone Star State currently allows those 65-years of age or older, who have a “disability” as defined by statute, or will be out of the state during the election to request a mail-in-ballot.
When these are requested, most county boards of election take the claims at face value.
Some believe, such as the Texas Democratic Party (TDP), the state should expand that ability to every voter due to the coronavirus. Doing so would be no easy feat as discrepancies in logistical capabilities vary greatly across the nation’s second-largest state.
States such as Colorado and Washington have taken years to implement their broad mail-in-voting programs and to do so in Texas by November, let alone for the July runoffs, would require a Herculean effort — if it can be done at all.
Early voting for the runoffs began this week.
Nonetheless, the TDP filed two lawsuits earlier this year: one in state court pertaining to the statutory application of the “disability” provision and one in federal arguing that, among other claims, the 26th Amendment requires broad ballot access, including vote-by-mail opportunity.
The state-focused case was shot down by the Texas Supreme Court a month ago, which ruled that “a lack of immunity to COVID-19” does not constitute a “disability.”
On Friday, the U.S. Supreme Court rejected a request to hear the federal case before the Fifth Circuit Court of Appeals has a chance to rule on it.
Texas Attorney General Ken Paxton has been outspokenly opposed to this proposed expansion, even elaborating that errantly advising voters to request an absentee ballot — as some counties have done — may constitute prosecutable fraud.
There are multiple kinds of voter fraud that exist. But the three main categories the Office of the Attorney General (OAG) lists are illegal voting, wherein a person who is not qualified to vote, whether they’re a non-citizen, non-resident, or felon, casts a ballot; voter assistance fraud, wherein someone, often campaign workers, assists a voter with filling out their ballot and chooses for whom or what to vote; and mail ballot fraud, wherein mail-in-ballots are compiled by a number of unscrupulous strategies.
Paxton has also maintained that a broader absentee ballot program will ripen the opportunity for fraud. Since 2004, the OAG states it has “successfully prosecuted” 457 instances of fraud with 75 currently under investigation.
In 2018, Paxton created the Election Fraud Unit which has prosecuted over 100 cases since its inception.
One case under investigation is an allegation of ballot harvesting in Harris County. The allegation was referred to Paxton’s office by the Secretary of State (SOS) in early May. The SOS, after a brief merit assessment, forwards such complaints to the AG for further examination.
While the forwarding of an allegation is a minor statement on its potential merit, it is not necessarily an extraordinary one.
The Heritage Foundation, a conservative think tank, keeps a nationwide database of voter fraud offenses and it paints a much smaller picture than the OAG’s does. Overall, 945 have been documented since 1982 by Heritage.
Their database goes back to 2005 for Texas and contains 86 instances, 35 of which are classified as “fraudulent use of absentee ballots.”
Further broken down, 15 resulted in criminal convictions while 20 offenders were punished with a diversion program.
Kaitlynn Samalis-Aldrich, an administrative and research assistant for the Meese Center for Legal and Judicial Studies, said of the database, “This project was started five years ago to dispel the myth that voter fraud does not exist. We attempt to keep a close eye on the public information that becomes available on potential cases through local news stories, local court documents, county records, and police reports. Each case goes through an intensive vetting process to ensure the cases we are documenting are convicted instances of fraud.”
One possible explanation for the discrepancy between the OAG’s numbers and Heritage’s is that the former’s is a list of all offenses while the latter’s is separated out by offender.
An official within the OAG confirmed to The Texan, that about two-thirds of the election fraud cases involve absentee ballots.
During the 2020 primaries, over 4 million ballots were cast by Texas voters.
Most races, especially big-time federal races, finish with raw margins in which the number of fraudulent ballots found in proven fraud cases would not swing the result. The same holds true for most state and local elections, but the smaller the election, the higher the chance for a slim margin.
In 2018, the 19 most competitive Texas House races resulted in an average win margin of 2,782 votes — generally, too wide for an isolated incident of fraud to swing.
But a few finished with much slimmer margins, such as HD 66 in which Rep. Matt Shaheen (R-Plano) won by 391 votes; HD 108 in which Rep. Morgan Meyer (R-Dallas) won by 220 votes; HD 132 in which current Rep. Gina Calanni (D-Katy) upset then-incumbent Mike Schofield by 113 votes; and HD 138 in which Rep. Dwayne Bohac (R-Houston) narrowly escaped defeat by a mere 47 votes.
At this time, no known allegations of voter fraud exist for any of the above race examples.
An analysis of the Heritage Foundation’s database by a left-leaning think tank, the Brookings Institution, found just 53 instances of vote-by-mail-related fraud in the five states (CO, HA, OR, UT, WA) that not only utilize a universal mail-in-ballot system but for which mail is the default method of voting.
Some Republicans worry that expanded vote-by-mail programs would benefit Democrats over their party, but a Stanford University study found no statistically significant benefit one way or the other.
Texas is one of 16 states in which voters must have a valid excuse to vote absentee — and New Hampshire is the only one that has approved “fear of contracting COVID-19” as a valid excuse.
And in Texas during the 2016 presidential election, only 7.7 percent of ballots cast were by mail.
However, the concerns over fraud with such an expansion still abound. And generally, absentee balloting makes committing fraud easier than some other alternatives, like attempting to physically impersonate another voter at a polling location.
But data still shows fraud occurs at a numerically small level when compared with votes cast.
While voter fraud does not exist to the degree that President Trump has insinuated — “I won the popular vote if you deduct the millions of people who voted illegally” — it does exist and can affect the outcome of a given race on a small scale.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.