Does the Constitution Cover Texas?
The Lone Star state is making up its own rules.
Years ago, there was an ad campaign with the slogan “Texas. It’s Like a Whole Other Country.” It’s getting more true with every passing day.
Two developments from yesterday are in the news.
Texas Tribune (“Texas can reject mail-in ballots over mismatched signatures without giving voters a chance to appeal, court rules“):
If they decide the signature on the ballot can’t be verified, Texas election officials may continue rejecting mail-in ballots without notifying voters until after the election that their ballot wasn’t counted, the 5th U.S. Circuit Court of Appeals ruled Monday.
The appeals court halted a lower court’s injunction, which had not gone into effect, that would have required the Texas secretary of state to either advise local election officials that mail-in ballots may not be rejected using the existing signature-comparison process, or require them to set up a notification system giving voters a chance to challenge a rejection while their vote still counts.
Requiring such a process would compromise the integrity of the mail-in ballots “as Texas officials are preparing for a dramatic increase of mail-in voting, driven by a global pandemic,” reads the Monday opinion issued by Judge Jerry E. Smith.
“Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote,” Smith wrote.
Before mail-in ballots are counted, a committee of local election officials reviews them to ensure that a voter’s endorsement on the flap of a ballot envelope matches the signature that voter used on their application to vote by mail. They can also compare it to signatures on file with the county clerk or voter registrar that were made within the last six years.
The state election code does not establish any standards for signature review, which is conducted by local election officials who seldom have training in signature verification.
Voters must be notified within 10 days after the election that their ballot was rejected, but state election law does not require affording them an opportunity to challenge the rejection, the appeals court ruling noted.
So local election officials can look at ballots, presumably knowing for whom a person has voted, and decide that the signature on the ballot doesn’t match the one on file? What could possibly go wrong?
Even if they’re acting honorably, most of us have signatures that very rather considerably—especially since we don’t write much by hand anymore. I have a very neat version that I tend to use on official documents so long as I don’t have to sign more than a handful of times in any short period. But, unless I was aware that I was expected to match my “official” signature, I might well not do so.
Regardless, one would think a due process right inhered. Obviously, if the ballot were received on or near the last day it would count, it would be unreasonable for election officials to have to track down the would-be voter. But weeks out?
Oddly, the suit was filed way back in August 2019.
The lawsuit claims at least 1,873 mail-in ballots were rejected on the basis of mismatched signatures during the 2018 general election; at least 1,567 were rejected in 2016.
On Sept. 8, U.S. District Judge Orlando Garcia ruled that the state’s process for matching signatures “plainly violates certain voters’ constitutional rights,” and ordered the state to either abandon the practice or come up with some mechanism that lets voters get their ballots counted.
The injunction has been under an administrative stay by the 5th Circuit since Sept. 11, three days after it was issued, and will now remain on hold while the state challenges the underpinnings of Garcia’s decision.
Plaintiffs said they will now push counties to voluntarily give early notice to voters whose ballots are rejected for signature-match issues, allowing them a chance to rectify the situation and let their vote count.
“It will affect this 2020 election, so voters will not be notified in time, and so I think the main thing we’re trying to do now is notify counties that ballot boards are not required to give pre-election day notice, but they can,” said H. Drew Galloway, executive director of MOVE Texas, a plaintiff. “We encourage them to follow the original intent of the lower courts here so folks (whose ballots were rejected) can go vote in person, or contest that decision.”
Let’s stipulate that we’re talking about a practice that has historically had a negligible impact. In 2016, Donald J. Trump received 4,685,047 votes in Texas, compared to Hillary Clinton’s 3,877,868; Gary Johnson’s 283,492; Jill Stein’s 71,558; and 51,261 for “Others.” The Texas ballots rejected in 2018 and 2016 combined are a tiny fraction of those who voted for someone other than the four candidates of whom you’d likely heard.
But, of course, that was in a contest where the outcome was a foregone conclusion—a big win by the candidate of the party likely in charge of the counting in most precincts. The incentives are very different this time.
Meanwhile, NBC (“Texas social workers can now turn away LGBTQ, disabled clients“) reports:
The state Board of Social Work Examiners voted unanimously to change a section of its code of conduct last week following a recommendation from Gov. Greg Abbott, a Republican, to remove protections for sexual orientation, gender identity and disability. Abbott’s office said the change was suggested because the board’s nondiscrimination clause went beyond the state’s policy on social work, according to The Associated Press.
“It’s not surprising that a board would align its rules with statutes passed by the Legislature,” Renae Eze, a spokeswoman for Abbott’s office, said.
Officials and the state Board of Social Work Examiners is now facing backlash for the decision, with some advocacy and professional organizations saying it could put already vulnerable disabled and LGBTQ people at a greater risk.
After the policy change became public, seven advocacy groups released a joint statement condemning the move.
First off, as a sheer matter of politics, this strikes me as a bizarre move. Texas is trending bluer every day. Why enact a policy by fiat that would be more at home in Alabama or Mississippi?
Second and more importantly, we have a whole series of United States Supreme Court decisions that have interpreted the Equal Protection Clause of the 14th Amendment and the Civil Rights Act of 1964 as protecting these groups. Why don’t those rulings apply to Texas?