Despite record turnout, some Texas voters were still shut out - The Texas Tribune

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Editor’s note: This coverage is made possible through Votebeat, a nonpartisan reporting project covering local election integrity and voting access. The article is available for reprint under the terms of Votebeat’s republishing policy.

Despite doing everything she could to cast a ballot, Wanda Kizzee was left out of the biggest election of her lifetime.

“It’s very frustrating because I felt like my right to be heard was stripped from me by no fault of my own. It wasn’t that I didn’t want to vote, or anything like that. I really wanted to vote, and it was just taken away from me,” said Kizzee, 55, a travel nurse whose ballot mailed to her by Harris County officials never made it to California, where she was working during the election. “This has never happened before, and I almost think it’s criminal that it did.”

Elections officials in Texas are wrapping up vote counts after record turnout, ending an election season rife with dueling accusations of suppression and unverified ballot fraud.

With turnout numbers reflecting the nation's interest in an election framed by the president’s response to an out-of-control pandemic, it’s easy to observe that Texas voters were able to vote in large numbers, with upwards of 11 million casting ballots.

But it’s also clear from calls to election hotlines, social media traffic, and interviews with voters, that a number of Texans, like Kizzee, tried to vote and couldn't. The pandemic, fear, complex processes, missing absentee ballots, uninformed poll workers, technical issues, registration problems and other hurdles disenfranchised a number of Texans.

Numbers released this week by the state demographer show that in this election, some 5.7 million Texans were registered but did not vote. It is unknown how many of them tried but could not.

The Texas results are, so far, largely undisputed by either party. Both sides agree that some Texas voters were disenfranchised, though they disagree over why.

While making no sweeping claims calling into question the integrity of the election results, Texas Democrats emphasize that the state still has voting laws that cause suppression.

“I think we should absolutely have faith in our election results,” said Chad Dunn, general counsel for the Texas Democratic Party who led the unsuccessful fight for mail-in ballots for all Texas voters earlier in the summer. “I’m not arguing that we should disregard the results of the election. All I’m saying is that for well over 100 years, Texas has led the fight in picking and choosing its voters, and we ought to be ashamed of ourselves for continuing to do so.”

Republicans, who salted the political landscape with unverified assertions that massive absentee ballot voting would lead to fraud, won the state convincingly enough to largely abandon that story line — at least in terms of how it affected the statewide results.

“I think you're seeing counties where there are fraud issues where the results would have been different in my opinion, so that will have to be dealt with in the future,” said Jared Woodfill, the Houston attorney who led lawsuits against drive-through voting, multiple mail drop-off sites and several of Gov. Greg Abbott’s pandemic-era election proclamations. “But overall, the way the state went is the way it would have gone regardless of whether these irregularities had or hadn't occurred.”

Both sides say state’s voting laws in play during the election are at the root of voter disenfranchisement, but they differ on which laws those are.

Conservatives contend that pandemic-era regulations that expanded access were improper, and allowed votes to be cast illegally. On the left, the contention is that the laws are too limiting and cut eligible voters out of the process.

“There isn’t any question that there was significant disenfranchisement in Texas,” Dunn said. “Now whether or not that would have made a difference in statewide outcomes is difficult or impossible to determine. There are certainly local races where it absolutely would have had an impact in the outcome.”

Texas is one of the hardest states in which to vote — for voters of both parties — and, Dunn said, many of the hurdles voters faced this year are not new.

But the pandemic, and political reaction to it, created additional disenfranchisement. The state and Republican leaders were aggressive, and largely successful, in shutting down efforts to allow universal mail-in balloting and multiple ballot-drop points that would have made it easier for voters to cast ballots while avoiding crowded polls, he said.

Particularly affected were voters of color in places like the Rio Grande Valley, Dunn said, where pandemic-related fears kept many from wanting to risk a trip to the polls. Those areas saw massive COVID-19 surges and reported lower-than-expected turnout for Democrats.

“I know there were a lot of Republicans and there were a lot of Democrats who didn’t get their voices recorded in this election because of COVID and our state’s steadfast refusal to adjust to the pandemic reality,” Dunn said. “And that’s an injustice, whether or not the election results would have changed.”

Woodfill sees disenfranchisement through a different prism. If votes were cast illegally, as many of his lawsuits over drive-thru voting and ballot drop-off locations have argued, that in itself is disenfranchisement of legal voters..

“There are serious issues that were raised by this election cycle, especially with respect to Harris County,” said Woodfill, referring to several moves by the county to expand access, including the drive-through locations. “To the extent that illegal votes were allowed to be counted, then a legal vote would obviously be disenfranchised. So yes, I do think that occurred. I personally think that it’s Republican voters that were disenfranchised.”

Predictably, Harris County voted blue on Tuesday, flipping a formerly Republican state House seat and giving 56 percent of the presidential vote to Biden with a margin of more than 200,000 votes.

Voters shut out 

In Texas, which was recently ranked 50th in the nation by the Election Law Journal for ease of voting, the stories of disenfranchisement in this election are plentiful, because the hurdles state lawmakers have erected to registering and voting create many chances for the system to fail.

The state GOP leadership has steadfastly resisted modernizing voter registration, including blocking attempts at online registration. Voter ID laws, limits on qualifications for absentee ballots and rigidity in the mechanics of balloting all weed out untold numbers of voters along the way.

“These things will feed into the ability of someone to either participate easily and conveniently and effectively, or for someone to encounter barrier after barrier after barrier and at some point throw up their hands in disgust and quit trying,” said Tammy Patrick, senior adviser to the elections team at the Democracy Fund in Washington, D.C.

It certainly was difficult for East Texas resident Serena Ivie, who had to re-educate herself on the registration process after sitting out elections for 20 years.

Ivie wanted to vote for President Trump because she worried about the direction of the country if he left office. She sent in her voter registration application in early September, she said.

She figured out too late that her registration was never activated, and she still has not gotten an explanation, she said.

Ivie, 49, is angry that the state hasn’t created easy, online registration since the last time she voted.

“I was disappointed that I’d let myself down, and I really felt that I screwed up,” Ivie said. “It’s a huge letdown, and I, in turn, feel like I am letting my country down.”

For Lauren Nip, a California college student who votes in Fort Bend County, the chance to vote in Texas slipped away when her absentee ballot application never made it to her elections office.

“It's frustrating to have a voice in these elections,” she said, “but not be able to use it.”

There are many points in the process where votes can be silenced.

Signatures on absentee ballots get rejected, or the ballots never show up. Voters are incorrectly dropped from rolls. Registrations fall victim to technical glitches and data-entry errors. Discrimination or intimidation or a simple lack of a ride or time off work can keep people from voting.

Sometimes, voters misunderstand complex rules around registration or absentee voting. Other times, poorly trained poll workers turn away voters without educating them on their options.

“All of these can spoil the experience for voters who are very excited to cast their vote this year,” said Thessalia Merivaki, assistant professor in American Politics at Mississippi State University.

The problems don’t just affect the outcome of the election at hand, Merivaki said, but can disenfranchise voters for years.

“It makes me not want to try it ever again,” said Tarrant County resident Adrianna Booth, 25, who was not allowed to cast a regular ballot because there was a problem with the registration date on her voter card. “It just shut me down."

Booth’s voter registration was mailed, along with her fiance's, before the deadline. When their cards came back, both showed an effective date of Nov. 1, which signaled eligibility in this election cycle.

Her online voter status showed as active. But at the polls when they tried to vote early, her fiance was able to vote, but she was not. The poll worker's computer said she was ineligible but didn’t say why.

It took several minutes of convincing before the poll workers would let her submit a provisional ballot. They told her “it was a lot of paperwork and that it probably wouldn’t count anyway,” she said.

Going in to vote on Nov. 3 was not an option because she was out of town, Booth said.

“I wanted to go and be a part of it,” Booth said. “I wanted to have my say, I wanted to have my input. It’s so frustrating because they shove it down your throat. Everyone needs to go to the polls, go vote — vote, vote, vote, vote, vote — and then I go, and I get treated like that.”

The murky world of provisional ballots 

Provisional ballots like the one Booth was forced to cast hover in an electoral netherworld. They are collected, but many never actually count in final election results.

Texas law requires that provisional voters are notified within 30 days of the election whether their ballot was counted, and if it wasn’t, to tell the voter why.

The provisional vote is the last resort for people who would otherwise not be allowed to vote at all, and it is only available to those who can make it at the polling site during early voting or on Election Day.

Voters cast a provisional ballot after swearing they are eligible to vote. Their ballot will be counted after officials verify the voter’s status. If officials conclude that the voter was not eligible for that election, the vote will not be counted, but the voter’s registration will be activated for the next election if they meet registration requirements.

Those ballots are not tracked on a state level in Texas, so it is difficult to determine the number of provisional votes cast and accepted statewide. The accepted votes are included in the raw vote counts recorded by the secretary of state.

Some counties release those numbers, and groups have done studies in previous years.

When a provisional vote is accepted, it usually signals that the problem was not the voter’s fault. Researchers use provisional ballots as a marker to indicate how and why votes aren’t counted, and voters therefore disenfranchised.

“From the accepted provisional ballots, we know that often voters do not vote regularly (with a ballot that is not provisional) as a result of administrative errors,” Merivaki said. “Why would thousands of voters turn out to vote, wait in line for hours, if they are not registered to vote?”

An MIT study on provisional and absentee balloting showed that in the 2016 presidential election, in which 8.9 million votes were cast in Texas, about 69,000 were provisional. Only about 12,500 were counted, according to the Elections Performance Index created by the Massachusetts Institute of Technology Election Data + Science Lab.

That leaves some 56,500 votes cast aside.

Those numbers could be higher this year, with more people casting mail-in ballots, more new voters and more new poll workers -- all of which can produce a provisional voting situation.

"There has never been integrity"

The disenfranchisement of voters is at the core of every war over democracy, every fight over election policy, every lawsuit, every new rule and federal act of Congress regarding election law.

Myriad battles over increased polling locations, drive-through voting, mail-in balloting, Voter ID, eligibility, and more all come down to one thing: Making sure those who are eligible can exercise their constitutional right to vote.

Texas has tightened voting restrictions in recent years due to Republican efforts to limit efforts like widespread mail-in voting, online registration, mobile voting and others that advocates say would increase the number of voters in Texas.

And whether counties like Harris can count this cycle as a victory in terms of turnout and Election Day activity - and many locals there call it a success - disenfranchisement is a concern that voting rights activists say should never be ignored by the state.

“There has never been integrity in our voting process in Texas,” said Crystal Zermeño, director of electoral strategy for the Texas Organizing Project. “We are a voter suppression state, and the laws are set so that you can’t have full democracy and participation.”

It’s historically difficult to count how many voters are disenfranchised in a particular election, for reasons beyond the nebulous tracking of provisional ballots.

Many voters who are unsuccessful don’t report their problems, particularly those who are disenfranchised because they give up during a complex registration process or who can’t find a ride to the polls, and other non-reportable situations.

But if the goal of voter participation is to make sure every single voter can vote if they choose to, then Texas still falls short of that benchmark, said Nicole Pedersen, who spearheads the Harris County Democratic Party's voter protection efforts.

“It is a fundamental right to vote,” she said. “If we are depriving somebody of their right, then that is a problem. Even one person is a problem.”

This story was produced with the help of tips reported through ProPublica's Electionland project. If you encountered an issue while voting that you think merits our attention, let us know here.

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