The dramatic fight in Texas over voting obscures the point that almost no demonstrated fraud exists

June 1, 2021
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Texas’s legislature meets every two years, with its 2021 session coming to an end at midnight on Sunday. The Republican majority in the state House had hoped to pass new constraints on voting in the state, but were unable to do so after Democrats walked out , preventing the […]

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Texas’s legislature meets every two years, with its 2021 session coming to an end at midnight on Sunday. The Republican majority in the state House had hoped to pass new constraints on voting in the state, but were unable to do so after Democrats walked out, preventing the chamber from reaching the quorum needed for a vote. Gov. Greg Abbott (R) responded by saying he would dock the legislators’ pay, reflecting the fury of his party at the unexpected play by their political opponents.

The proposed legislation in Texas was an echo of other bills passed in a number of states since the 2020 election, including new restrictions on voting implemented in Georgia and Florida. The path to a gubernatorial signature in those other states twisted in different ways, with Georgia’s early position on the effort drawing national scrutiny and blowback. The root is obviously the same: dishonest claims from former president Donald Trump that the 2020 election was riddled by fraud have prompted Republican voters to embrace the false idea that the security of voting is imperiled. So we have late-night machinations in Austin including quiet text messages and exasperated legislators.

All of that drama, though, can obscure the central point: There is no evidence of any rampant fraud in Texas or anywhere else, meaning the purported rationale for the legislation itself doesn’t exist.

From 2015 to 2020, a period during which more than 44.1 million votes were cast for presidential and gubernatorial races and for constitutional measures alone, there were only 197 complaints of election fraud filed with the state. Only 23 were from the 2020 election itself. The office of Texas Attorney General Ken Paxton (R) devoted more than 22,000 hours to tracking down fraud cases last year, closing out 16 minor cases around Houston.

As the legislature considered new legislation focused on fraud, the head of the election fraud department in Paxton’s office claimed the number of fraud cases was “higher than our historical average by a long shot,” totaling “510 offenses pending against 43 defendants in court.” However: “Only one of those pending cases stems from the 2020 election, in which more than 11 million Texans cast ballots,” as a Houston Chronicle fact check pointed out.

That fact check was a response to a CNN appearance by Texas state Sen. Bryan Hughes (R), in which he repeatedly claimed there were “over 400 open cases of investigations of voter fraud” in the state. There were not.

Hughes cited the arrest of an official in his district as an example of where fraud occurs. That official, Marlena Jackson, is a good example of the divide between the number of charges and the number of people charged. She was indicted on 97 criminal counts centered on ballots or ballot applications for 38 voters. It’s not clear if any of the ballots were cast successfully, but it is clear that none affected the outcome in 2020: The charges center on the 2018 primary election.

This conflation of charges across multiple cycles and the conflation of different types of alleged illegality — from registering voters to seeking ballots to actually casting them — is common. That Paxton’s office points to a higher-than-average total of charges without delineating, for example, how many of them are specifically related to individuals casting illegal ballots gives the impression — probably intentionally — that such fraud is endemic. Digging into the numbers more deeply makes clear that it isn’t: Even if all 510 of those possible offenses were fraudulently cast ballots in the 2020 presidential race, that would amount to one of every 22,000 votes cast being suspect and would have had no effect on the presidential race or even any House race.

“Election fraud didn’t start in 2020, it is not going to end. It’s a process Texas and other states have dealt with for a long time,” Hughes said in that CNN interview. “When we go to other areas of the law and try to clean it up, we don’t get these objections.”

That’s not really true. It’s not that there aren’t any laws governing voting. There are, which is why the attorney general’s office brought criminal charges against those 43 people. What’s at issue isn’t “trying to clean up” voter fraud, it’s that the bar being established for purported fraud is different than for other criminal behavior.

There are laws against murder, for example, but we could do more to prevent it. We could, for example, bar anyone from owning a gun — or a knife, or a bat. We could prevent people from leaving home without being accompanied by a police officer and we could mandate that every room in every house have a camera being watched by a police officer 24 hours a day. We could defend such a proposal by noting that more crimes are being committed today than ever before — failing to account for the fact that the population has grown and failing to differentiate between murder and other crimes as we make that point.

In other words, we could “clean up” murder more effectively, but we don’t because we recognize that it’s nearly impossible to prevent every murder and because we have a system in place that both tamps down on murder and punishes those who commit it.

Some will note that the restrictions proposed on voting aren’t as onerous as what I present for murder, which is true. But the rhetoric used to argue for the voting restrictions is similarly iffy and the need for them similarly questionable.

Texas has a history of trying to implement new voting restrictions that courts have determined disproportionately affect non-White voters — voters who tend to vote more heavily Democratic. The Obama administration blocked an attempt by the state to impose new voting restrictions using its power under the Voting Rights Act. After the conservative majority on the Supreme Court gutted the provisions of that law, Texas’s then-attorney general, Greg Abbott, quickly moved to implement the law’s provisions.

It’s also not a coincidence that the states that have been quickest to implement new restrictions are ones in which the legislature is controlled by Republicans but in which Democrats are posing an increasing statewide electoral threat. Texas Republicans have been worried about increased Democratic strength for years. In Georgia, Biden’s victory was followed by two Democrats being elected to the U.S. Senate. Florida is a perennially purple state, with Republicans barely holding on in state elections in 2018. For the GOP to focus on alleged fraud at this point in those places seems unlikely to be a coincidence.

Fraud happens and no one seriously argues that it doesn’t. The issue is whether that fraud poses a significant, undetectable risk to elections. It doesn’t. It suits Republicans, Trump foremost among them, to pretend that it does. But at no point has anyone presented credible evidence to that effect.

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