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Protections for Curbside Voting

Reader J.W. has posted an interesting response to my thoughts on the uses and abuses of curbside voting. For those of you who might have missed the exchange, here it is in full:

Re: “The curbside voting law doesn’t require that a voter pass some test or exhibit some condition proving inability to enter the polling place, and the curbside voting law isn’t enforced through criminal penalties like those applicable to assistance of a voter in the voting booth.”

Agreed. And you are right that this is the battlefront once mail-in ballot abuse is curbed. We’re seeing this in several counties where action has been taken against ballot harvesters. It seems there should at least be a procedure where the voter confirms inability to enter polling place. Under 64.009, the entire procedure must be “at the voter’s request.” So, procedurally, the politiquera (or whomever) comes in, tells officials a voter needs curbside, an official goes out to the car and confirms that the voter is requesting curbside and cannot physically enter the building. The process should not be offered to a voter who has not requested it, period. Just like a person “assisting” a voter should be chosen by the voter, and not vice-versa, but I digress.

Regardless, would you say that 64.036 still very much applies to the curbside voting process, and that an assistant still cannot (1) assist a voter who is not eligible for assistance with the ballot (i.e. they can read and physically mark the ballot); (2) prepare the voter’s ballot in a different way than directed, or without direction; (3) suggest to the voter in any way how to vote; and of course (4) assist a voter who hasn’t requested assistance from them?

We’re seeing some politiqueras bringing in vanloads of voters who have already been armed with push cards of whom to vote for and marked sample ballots, before arriving at the polling place. The voters are then “assisted” in the voting booth by the politiquera, who is ostensibly there for the purpose of ensuring the voter votes for the candidates indicated on the literature that’s been pre-provided. Obviously, if the assistant were providing the voter with that information on the spot, in the voting booth, it would be unlawful assistance, by suggesting to the voter whom to vote for. But, the sample ballot changed hands in the van. Depending on the facts, what was said in the van, whether it was said by the assistant, whether the assistant him/herself handed the sample ballot to the voter, and the proximity of the delivery of the sample ballot to the vote assistance, I think a case could still be made for unlawful assistance, albeit a difficult one.

Certainly if the assistant directs the voter to the material, that would be an unlawful suggestion. Marking the ballot without direction would be unlawful as well. But — “oh, I see you have a list of candidates marked here – is that who you want to vote for?” “Um, yeah, I guess.” Done. — that’s more difficult. At that point, the best enforcement strategy might be to focus on eligibility of the voter for assistance. It’s a bit of a cat and mouse game with these guys, and we have to accept that no system is perfect, or ungameable, but we can raise the bar little by little and make it more difficult and less profitable for politiqueras to exploit elderly voters and manipulate election outcomes for paying candidates.

  • I think your analysis hits the nail on the head – it’s not that curbside voting is exempt from prosecution for unlawful assistance under Section 64.036 of the Election Code. The problem is that the person controlling the voter has so much more power over the voter when confined in the same vehicle, compared to the inside of the polling place.

    I like to suggest that at a minimum, election workers should give the voters a chance to speak for themselves, but I know this approach doesn’t solve the problem (will a voter feel comfortable to speak freely when stuck in a car and sitting right next to the driver?) And I’d hesitate to prohibit curbside voting completely, because it really does benefit people who aren’t physically able to get into the polling place.

    One option might be to add something like the oath of assistance – to at least build a paper record of who it was that actually drove the voters to the polls. Then a candidate could ask, “Okay, on the third day of early voting, who was it that pulled up with that van full of browbeaten elderly voters at the Precinct 301 polling place? Let’s see, based on the signed Affidavit of Curbside Transport/Assistance included with the precinct records, it was Bob Smith, driving a 1981 GMC van, license plate number TCC 402, transporting the following voters. Based on this, and based on the fact that I know Bob Smith was working for my opponent, I know to focus my investigation on asking these voters some questions.”


1 Comment

  1. J. W. says:

    You’re exactly right about the danger of curbside voting being a more pronounced influence of the “assistant” over the voter. Additionally, while an assistant in the poll booth has to take an oath and provide written information to poll officials for each vote they assist, I don’t know of the same requirement for curbside “assistance”. A procedure like the one you propose would be quite helpful. Otherwise, it’s up to the discretion of the election officials how to handle curbside assistance – i.e. is the person providing transportation classified as an “assistant” at all? Is there any oversight of what happens during the curbside process, to determine whether anyone is “assisting” or influencing the voter?

    Poll watchers, who volunteer to observe poll activity, are often the only checks and balances against untoward activity at the polls, since in many locations, the election staff is compromised and allows politiqueras to provide unlawful assistance and carte blanche curbside voting all day long, to those with similar political interests. We’ve seen in the most recent election blatant abuse of “assistance” and arbitrary and selective enforcement of the voter ID requirement – which, say what you will about voter ID, but if we have it, it needs to be enforced uniformly at the polls.

    Again, I don’t know what the policy for curbside voting is, if there is one, but it should include independently verifying the voters need for, and request for, curbside voting. It should also be clarified whether the voter will be assisted with voting by any person, and if so, that person needs to take the oath that they will not influence the voter in any way, and sign assistance form, providing personal information (and a paper trail.) Going one step beyond – and recording additional information regarding the transportation, individuals involved, and number of voters (or names of voters) being transported for curbside – will draw complaints from the politiqueras, but would be remarkably effective for creating a paper trail for investigators after an election complaint, or for deterring politiqueras from blatantly abusing the system, as the evidence they’re leaving behind will be quite apparent.

    It seems aggressive compared to what’s in place (or what I suspect is in place), but it doesn’t put any additional requirement on the voter, only on the “assistant” and the election staff, so it would be hard to claim that it would be a hinderance to voting.

    A final note would be that both mail-in ballots and curbside assistance should both be readily available for the cases where those methods are needed for special needs voters. However, the regulation of “assistants” should be re-thought, and perhaps tightened significantly to reduce abuses of the system by individuals who seek to influence or manipulate elderly and disabled voters. For example, everybody that wants to vote, yet requires assistance in reading or marking a mail-in ballot has either a family member or a caregiver that can assist them with that. So why do we allow paid politiqueras (under the guise of community do-good’ers) to work neighborhoods and adult care facilities to harvest scores of ballots from folks who aren’t even being allowed the independent exercise of their votes? If you limit assistance to family members and caregivers, you eliminate the ability of politiqueras to be paid to harvest votes.

    So then the battleground moves to the polling place, first with assistance at the poll booth. The officials need to verify eligibility for assistance with the ballot (inability to read or mark the ballot) and the voters request and desire for an assistant. The default should be for election staff to assist unless the voter desires and requests a specific outside person. That assistant’s oath should be administered and information taken. Poll watchers are critical to the process of detecting unlawful assistance, and should be present to observe the process.

    The next level is establishing a procedure such as the one suggested early for curbside voting. If all of these things are in place, the system won’t be perfect, but it will be positioned to make vote farming much more difficult and far less profitable, particularly with increased documentation which will increase the likelihood of criminal prosecution. Assuming the average politiquera in S. Texas makes $150/week during early voting, and has to post bond for a misdemeanor offense, hire an attorney (though a hack is typically provided by the political “camp” they run with), and ultimately pay a $500 fine and court costs in some sort of plea agreement, the economics of vote farming get destroyed as likelihood of prosecution increases.

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