Hardeman County Commissioner Johnny Akers was convicted in 2005 of handling six ballots for people not related to him during a primary election the previous year, a misdemeanor.
Then-State Attorney General Greg Abbott prosecuted the case as part of his get-tough fraud effort. Akers received two years of probation and a $2,000 fine.
Despite the conviction for abridging the Texas election code, Akers remained a commissioner in the Panhandle county until 2012 — a testament to the resistance against voter fraud reform.
The statute under which Akers was convicted has been used in roughly 40 percent of voter fraud cases since 2005, according to state records.
Voter fraud is one of 20 items being addressed by state lawmakers in the special session that begins Tuesday. Just last week, three bills were filed that would alter the way in which mail-in ballots are processed.
But, as with most previous efforts to reform Texas’ loose mail-in ballot laws, and the politics that surround the practice, chances are that little will change.
A measure filed by state Rep. Mike Schofield (R-Houston) seeks to increase the penalty for violating several provisions of the mail-in voting process. In particular, it adds language to the law that explicitly prohibits applying for a mail-in ballot for another voter without his or her knowledge, making such conduct a felony. It also allows prosecutors to seek more serious charges if the victim is over 65 years old or the accused has committed the offense before.
Schofield did not respond to a phone call or text seeking comment.
Two other measures complement Schofield’s bill, both seeking tighter scrutiny of mail-in ballots by local election officials.
It’s the first time in over a decade that lawmakers have tried to alter the way mail-in balloting is carried out.
Instead, lawmakers toiled for years on a controversial voter ID bill — the Republican majority carrying out the wishes of the national party. Ultimately, the U.S. 5th Circuit Court of Appeals ruled that the 2011 voter ID legislation was discriminatory with respect to minority voters. A softer version of the legislation was passed during the 2017 regular session.
The new proposals to increase penalties for mail-in voter fraud are a weak attempt to halt a historically prolific practice in Texas, said Randall “Buck” Wood, a veteran election law attorney and former director of the Elections Division of the Texas Office of the Secretary of State.
Increases in penalties have been passed over the years, Wood said, “and now they are running over the same road. They have had no impact.”
Lawmakers, he said “are not going to do anything significant.”
Resistance to change starts at the local level and extends to state lawmakers who have no idea how common fraud is in mail-in voting.
Wood said part of the trouble is that authority over voting laws includes local district attorneys, “who well may have a buddy who is running for office.”
In addition to this conflict of interest, it makes little sense for local officials to crack down on the widespread, and often fraudulent, use of agents to increase mail-in ballots.
Those agents are usually called “vote harvesters,” whose function is to collect votes for whoever is paying them. Agents often “coach” voters and, in some cases, apply for mail-in ballots on behalf of unknowing voters by intercepting ballots and casting them for their benefactors.
“This is very difficult to deal with,” Wood said.
It is also very difficult to get anyone in the legislature to take it seriously. In 2006, the state House Committee on Elections filed a report which stated that “most allegations of election fraud that appear in the news or result in indictments relate to early voting by mail ballots.”
The report concluded that lawmakers in the 2007 session should “review the need to add, enhance or reassess the effectiveness of criminal penalties provided by the Election Code. The Legislature should provide educational assistance for prosecutors and election officials to improve understanding on criminal violations of the Election Code.”
Then in 2009, before the 81st Legislative Session, another report was issued by the House Committee on Elections. This one noted: “The committee would like the 81st Legislature to take in consideration the recommendations offered by the sub-committee on mail-in ballot integrity. As agreed by the whole committee, there is mail-in ballot fraud and those issues do need to be addressed during the upcoming session.”
Following the 84th Legislative session in 2015, the state House of Representatives once again filed a report noting that among the items of importance should be to “examine mail-ballot fraud in Texas. Review recent legislative efforts to address mail ballot fraud in Texas as well as in other states, and make appropriate legislative recommendations.”
Once again, nothing was done.
“The primary reason that change has been so slow for this is that it has always been such a large issue, so comprehensive,” said Rep. Craig Goldman (R-Fort Worth), who was picked by Abbott to lead the House’s charge for reform during the special session.
“In this case, the governor has reached out in the special session so that we can work with the secretary of state’s office and the governor’s office and really focus on putting together the most perfect bill we can.”
Mail-in ballot fraud has always been seen as a problem in South Texas and generally taken lightly in Austin. Some candidates have stopped looking to the state for enforcement and begun to take the situation to court.
In 2010, the practice so bedeviled Gus Flores in his bid for county commissioner in Val Verde County, he filed a lawsuit alleging that illegal vote harvesting cost him the election. The court agreed, overturned the election, and Flores won the new contest. Flores spent tens of thousands of dollars on his court case, but it helped dry up the local vote harvesting operations, he said.
“Things have improved here,” Flores said in an interview this week. “But there are still several ladies who help candidates with the mail-in ballots. Nothing, though, as bad as in 2010.”
Perhaps, he posited, his response to the alleged fraud is what it takes: a strong, direct challenge to the election rather than a vague promise of enhanced penalties for infractions. Many of the penalties, even under the newly proposed bill, remain misdemeanors.
The recent crusade to reform the mail-in process stems from an investigation by the state currently underway in Tarrant County. In October, Gov. Abbott tweeted:
— Greg Abbott (@GregAbbott_TX) October 7, 2016
That investigation revolves around several large names, according to documents filed with the state. The flow chart of alleged voter fraud leaders that state investigators are working from includes Linebarger Goggan Blair & Sampson, the Texas-based law firm that specializes in the collection of delinquent accounts on behalf of cities and municipalities.
Linebarger has not been directly or specifically accused of malfeasance. Two people familiar with the situation said the law firm, a prolific spender on lobbying and campaign donations to candidates both state and local, is “active” in local elections.
“Most firms cannot spend the money they spend to get candidates elected to get them contracts,” said one person, who spoke on the condition of anonymity.
Campaign finance records show the firm, and attorneys connected to the firm, have spent millions in the last decade on political contributions to candidates from both parties.
Gov. Abbott has accepted nearly $300,000 from the firm over the years. Also, Attorney General Ken Paxton received $10,000 from Linebarger during his 2014 campaign.
Abbott spokesman Matt Hirsch did not return a call from The Texas Monitor.
State Sen. Kelly Hancock (R-North Richland Hills) was selected by Abbott to champion the new voter fraud bill on the Senate side. Hancock has received $9,000 from Linebarger since 2012, donations that have come in every year.
Hancock did not return a call or text.
Linebarger has engaged in no illegal voting activity, said Glenn Lewis, a former state representative and now a partner at the firm. He posited that, while there is always the remote possibility of a rogue cadre among the ranks at Linebarger, it’s more likely that accusations would come from displeased competitors.
“I suppose anything is possible, but there is certainly nothing illegal going on to my knowledge,” Lewis said. “But sometimes animosity is driven by our competitors. We aren’t the only people in this business. We are the most successful, but we are not the only ones.”
The weak sanctions for voter fraud in Texas allowed Hardeman County Commissioner Akers to keep his elected position despite his guilty plea.
“I didn’t understand you couldn’t mail some little old lady’s ballot, and that’s what I done,” Akers told the Wichita Falls Times Record News after he was sentenced.
Wood said the local district attorney could have removed him from office, “but he didn’t do it. It would have pissed someone off. This is always about local politics.”
That district attorney, Staley Heatly, did not return a call.
“If I were king and you’d ask me how to solve this,” Wood said. “I don’t know of any way unless we were to go back to where in order to vote by mail, you had to have a note from the doctor saying you could not make it to the polls. But increasing the penalty, well, applying that is not mandatory. And prosecuting these cases is very labor intensive.”
Steve Miller can be reached at [email protected].