Most of the time the democratic process has a certain amount of elasticity created by relatively large margins of victory which allows small mistakes and irregularities to be overlooked as not really making a difference in the outcome of an election. But when a vote is extremely close, problems which might normally be tolerated can become critical factors in disenfranchising voters. In a democracy there is no greater civil crime than rendering an individual’s vote meaningless.
This effect has been demonstrated graphically in the developments in the race for Texas State House of Representatives District 48. In the initial vote incumbent Democrat Donna Howard won by a margin of only 16 votes against Republican challenger Dan Neil in a race with over 50,000 votes cast. That small margin of victory led to a recount and it has placed in sharp focus all of the shortcomings of the voting system in Travis County.
With a 16 vote margin every vote has to be counted correctly and every consideration has to be given to protecting the right of voters to have their say in the election. One way of assuring that is a recount, and that’s what Dan Neil’s campaign initiated this week. That recount has become like turning over a big rock to see all the unpleasant things that live in the darkness beneath it, and what it has revealed about voting in Travis County is not pretty.
The problems start with the attitude in the County Clerk’s office, where the same Democratic incumbent has held office for 20 years with little challenge to her authority. She and her staff have become jaded and allowed partisanship to rule their actions. The total lack of accountability or oversight has made them arrogant and complacent and encouraged them to run elections in a way which leaves many openings for abuse and mismanagement.
The regular election voting system in Travis County is deeply flawed. The eSlate voting machines do not track votes or link them to voters in any way and there is no way to verify anything about those votes beyond just carrying out another automated count. Almost any kind of voting fraud is impossible to identify or investigate once it has gotten beyond the precinct level. Everything is reduced to numbers which can never be sourced or researched once they have been processed into the system. Voters have no guarantee that their votes have even been counted beyond their initial encounter with the voting machine. The system offers no transparency and no verification or protections for the rights of the voter.
This system inherently limits the effectivenes of any recount as most of the votes can never be reexamined in any meaningful way. They’re just numbers on a card with no connection to anything in the real world – easy to manipulate and impossible to track. All you can really do is check those few votes which are made in paper form, mostly absentee ballots filed by people living overseas and the elderly or disabled, of course including a great many military ballots.
In advance of the recount in House District 48 a determination had been made to take many of the absentee ballots and rule them ineligible to vote in the election based on various criteria. Recount judges were then provided with a “remade” ballot which did not reflect the original intent of the voter, but instead had been created to replace the original absentee ballots and include only the races in which it had been determined that the voter was eligible.
The operating rule in eliminating these ballots was that anyone who had filled out a rather ambiguous federal form and not indicated a specific duration for their travel was considered a non-resident and eligible to vote only in federal level races. So even if you owned property or had a permanent address in the district you were kept from voting in any state or local races if you indicated that you were unsure of how long you would be outside the area – for example if you were in the military with no idea how long your deployment would last.
The problem with this system is that it ignored the intent of the voter arbitrarily and made assumptions about their residency status which may not have been accurate. Clearly the voters had addresses in the district because their ballots were sorted by precinct. Many of those absentee ballots had clearly marked votes in state and local races, showing the voter’s clear intent to remain part of that political community and not to expatriate themselves. In ruling the way they did the election officials in Travis County essentially took away their rights as citizens and certainly disenfranchised them in terms of this election. What’s more, none of the materials on which the decisions to exclude voters were based were made available to judges or poll watchers.
When the recount ended the results showed Neil still losing by 12 votes, largely the result of clerical errors in the original count. But what also became very clear is that hundreds of ballots were disqualified on the basis of a very questionable interpretation of the law and in clear negation of the intent and rights of the voters, including many members of the military deployed overseas. Whether this changed the outcome of the election is debatable, but it was certainly unfair to the voters.
The non-partisan election reform group Austin Vote Action summmed up many of the problems in this election well, pointing out that “Travis County elections are run with a disregard for the rights and best interests of voters and the community…As the Clerk’s Office currently runs elections there is too little transparency and too many opportunities for abuse. Austin voters deserve better.”