Lone Star 'Hardball:' Battle Over New Elections Legislation Isn't Over

Posted: Jun 02, 2021 10:25 AM
Lone Star 'Hardball:' Battle Over New Elections Legislation Isn't Over

Source: Tom Fox/The Dallas Morning News via AP, Pool

Texas Democrats have at least temporarily killed a GOP-led effort to overhaul the state's elections laws, as members of the minority party in Austin's lower house surreptitiously fled the chamber in order to deprive lawmakers of the requisite quorum to conduct the business of passing legislation. The state's Republican governor, Greg Abbott, is now vowing to withhold truant members' pay and promising to convene a special session to finish the job Democrats have forestalled. Writing at National Review, Jim Geraghty sounds a note of irony about Lone Star State Democrats using the "filibuster-by-flight" maneuver (employed by multiple legislative minorities through the years, as he chronicles). "Democrats suddenly love legislative-minority rights again," he observes, writing of the party that overwhelmingly wants to kill the filibuster in Washington, where it holds the slimmest of Senate majorities. Beware the fallout, he warns: 

If people want to cheer for Texas Democratic state legislators leaving the state capitol to prevent a vote on a bill they oppose, fine. But if they choose to do so, then let us do away, once and for all, with this nonsense that the filibuster represents an existential threat to democracy. The U.S. Senate has a quorum, too, of 51 senators, written in the Constitution, and thus it is not easily undone. And if 50 Senate Democrats were to nuke the filibuster for legislation, there is an excellent chance that 50 Senate Republicans would start refusing to show up and provide Democrats a quorum. Legislative chambers will always have minority parties, and the legislative minorities will almost always want to halt, or at least mitigate, what the majority is doing. The question before us is how we want those legislative minority parties to utilize their leverage. Crazed partisans always believe that the next election will demonstrate that they’ve been right all along, and that the stubborn, obstructionist opposition party will finally get its comeuppance and the electorate will relegate the opposition to inconsequential rump status. History teaches us that this almost never happens. How do we want a legislative minority to exercise its leverage when push comes to shove? A filibuster, or leaving the legislature building, capital city, or state to prevent a quorum?

Amazingly, House Democrats in Austin are simultaneously refusing to show up and vote on how their state will run elections while also demanding that Beltway Democrats "fix" the situation by ramming through their outrageous nationwide power grab known as HR 1. Democrats and their press allies decry GOP obstructionism and "extreme partisanship" in DC while cheering the exact same phenomena when state-level Democrats are the practitioners. Go figure. As for the delayed Texas law, does the Left's apocalyptic rhetoric align with its substance? In many respects, as we saw in Georgia, the answer is a resounding no. The Wall Street Journal's editors summarize

To start with the controversial, the 67-page bill would roll back Covid-19 innovations like Harris County’s drive-through voting and 24-hour voting. Those options were used disproportionately last year by black and Hispanic residents. But when did emergency procedures amid a 100-year pandemic suddenly become the new baseline? It’s hardly crazy to think polling-place shenanigans might be more likely at 3 a.m... Under the bill, Texas would still offer some two weeks of early voting. Mr. Biden’s beloved Delaware won’t have any early voting until 2022, when it will get 10 days. The Texas bill would also raise minimum hours. In the final week, counties with 100,000 people must currently open their “main” polling place 12 hours on weekdays and five hours on Sunday. That population threshold would drop to 30,000, and six hours would be mandated on Sunday...

Mail ballots and applications would ask for a state ID number or the last four digits of a Social Security number. Georgia and Florida have passed similar measures, and the goal is to verify identity without having to do subjective signature analysis. In Georgia’s 2018 elections, black voters accounted for 54% of the ballots rejected for signature or oath issues. The Texas bill says if ID numbers match, the voter’s signature would be “presumed” valid...The bill has many odds and ends. Offering “vote harvesting services in exchange for compensation” would be prohibited. Tabulating machines would be banned “if any wireless connectivity capability of the equipment has not been disabled.” Communications between public officials and voting-system vendors would be generally deemed “not confidential.” On election returns, mail ballots would be reported separately. Employers would be barred, “while early voting is in progress,” from refusing to excuse workers who want to go to the polls.

More provisions that made the final cut, and some that did not, are listed in this local news story. The most controversial elements, according to the Journal editorial are as follows:

The bill says that on the last Sunday of early voting, polling places may not open until 1 p.m. This is a political mistake, at minimum, in that it’s being spun as an attack on black churches that have a “souls to the polls” tradition. One lawmaker supporting the bill argued: “Those election workers want to go to church, too.” But some people take care of their religious obligations on Saturdays, and in any event Texas repealed most of its blue laws in 1985. Lawmakers would be wise to drop this provision...The bill would change the legal standard for proving fraud to “a preponderance of the evidence” from “clear and convincing evidence.” If the number of illegal votes matched the margin, courts could throw out a race, without showing that fraud changed the result. Critics say this is a pander to Donald Trump, but Mr. Trump lost in 2020 under either standard. Whether the new rules are too lax is a judgment call: Imagine a race decided by 50 votes, with 51 illegal ballots detected. Did more slip through? Perhaps the best thing for public confidence would be to redo the election.

While the bill mandates two weeks of early voting (as the piece points out, this will still be more generous than Delaware's updated law) and increases early voting hours, any component that credibly appears designed to interfere with 'souls to the polls' drives will understandably raise hackles. Such language was dropped from Georgia's law prior to final passage. The Journal's editors recommend doing the same in Texas (update: It's increasingly sounding like Texas Republicans are going to make a change on this, which is welcome and overdue). I also have concerns about lightening the burden of evidence needed to overturn an election based on allegations of fraud.  Claims that fraudulent votes altered the outcome of an election (such fraud does exist, but is quite rare, and did not impact the 2020 presidential outcome) are extraordinary – as is the notion of tossing out results and re-doing an election. To borrow a phrase, extraordinary claims require extraordinary evidence, and lowering the evidentiary bar on this front could result in abuses. Then again, judicial oversight remains, and the circumstances under which an electoral margin could even plausibly be affected remain exceptionally rare. I'll leave you with the latest out of Georgia, where counter-recriminations are underway after Major League Baseball foolishly and impulsively caved to partisan activists: 

The Job Creators Network has filed a $100 million lawsuit in federal court in New York. Part of the suit demands that MLB return the All-Star Game to Cobb County. The $100 million is for damages to local and state small businesses already impacted by MLB’s decision to remove the midsummer classic, the lawsuit alleges. Many of the businesses are owned by minorities and are still recovering from losses during the pandemic. The All-Star Game was pulled from Atlanta and moved to Colorado after Georgia Gov. Brian Kemp signed SB202 into law. Democrats have alleged the law is a form of voter suppression, and baseball caved to the political pressure.

It's unclear how viable this suit will be, but more conservatives are reaching the conclusion that one side cannot unilaterally disarm in the culture wars – and the leftist aggressors' opponents have been organizing and developing sharper elbows. Public opinion is already inclined against corporate wokeness, and the fight is on.