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Recently Posted News & Analysis
Independent State Legislature Theory Going Before SCOTUS
The “independent state legislature” theory gets its day in the U.S. Supreme Court tomorrow (Wed.) as justices will ultimately decide whether the U.S. Constitution gives state legislatures sole authority to regulate federal elections beyond the purview of state courts and, potentially, all state and local election officials.
Various legal efforts to overturn the results of the 2020 presidential election included some form of the independent state legislature theory. Broadly, these efforts argued that individual votes or entire elections should be thrown out because they were cast or counted in ways authorized by court order, state regulation or local ordinance, but not by the legislature. This argument has found its way into legal efforts aimed at issues with elections since.
If SCOTUS finds that state courts have little to no jurisdiction over legislatures’ authority to regulate federal elections, then we could begin to see federal and state elections operating under different sets of rules – one set of which could willfully violate state constitutional provisions while being immune to state judicial review (Federal judicial review would still apply.).
The proceeding, Moore v. Harper, arises from two North Carolina redistricting cases. The state supreme court rejected two legislative efforts to draw new districts, finding that they were “egregious and intentional” partisan gerrymanders that violated the state constitution’s guarantee of free elections. The court adopted a map drawn by experts it appointed. Earlier this year, a divided Supreme Court rejected a request to put the court-drawn map aside and reinstate the legislatively drawn map. Justices Alito, Gorsuch and Thomas dissented, arguing “there must be some limit on the authority of state courts” if the Constitution’s language “is to be taken seriously.”
The independent state legislature theory hinges on similar language contained in two provisions:
- The Elections Clause (Art. 1, Sec. 4) provides that “the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”
- The Electors Clause (Art. 2, Sec. 1) provides that “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors …” to elect the president.
Both apply to federal elections – not state elections.
In a brief filed at the Supreme Court, petitioners argue the North Carolina high court “decreed that the 2022 election and all upcoming congressional elections in the state were not to be held in the ‘manner … prescribed … by the legislature’ … but rather in the manner prescribed by the state’s judicial branch” (Emphases removed). Petitioners argue “this result is irreconcilable with [the U.S. Constitution’s] allocation of authority over federal elections.” Further, “the Election Clause’s allocation of authority to state legislatures would be emptied of meaning if state courts could seize on vaguely-worded state-constitutional clauses to replace the legislature’s chosen election regulations with their own.” Only federal constitutional limits should apply to federal elections.
Respondents argue that judicial review of election or redistricting legislation is “the same constitutional check placed on all legislation.” The Elections Clause resembles other grants of power in the Constitution “which contemplate legislation subject to ordinary constitutional checks … including judicial review.” Further, Congress, using the power granted in the Elections Clause, “has mandated that states’ congressional districting plans comply with substantive state constitutional provisions, and it has authorized state courts to adopt remedial plans.”
Respondents also argue the Reduction Clause (Amendment XIV, Sec. 2) “requires congressional districting plans to comply with state constitutional provisions protecting voter rights.” In relevant part, the Reduction Clause provides “when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied … or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced” proportionally. In other words, states lose representation in Congress if the right to vote is “denied … or in any way abridged” for those eligible to vote.
Further, respondents argue that state legislatures themselves are creations of their states’ constitutions, and the laws they pass must comply with those constitutions, regardless of how vaguely worded they may be. As such, state courts can intervene and enforce limits based on those states’ constitutions.
House GOP Caucus Backs Phelan’s Re-election
The House Republican Caucus endorsed Speaker Dade Phelan (R-Beaumont) for re-election by a reported 78-6 secret ballot vote. Rep. Tony Tinderholt (R-Arligton) was the only other candidate nominated.
“Every member will play a role in our legislative process,” Phelan tweeted after the vote. “I look forward to earning the votes of all my colleagues when” the session convenes.
“Because Dade Phelan has all the support of Democrats, Republicans fear the bully tactics of his team if they oppose him,” Tinderholt said in a statement issued after the vote, the secret nature of which should have enabled Republicans who oppose Phelan to do so freely. “I am undeterred in my fight to ensure we have strong conservative leadership this session and look forward to the floor vote on the first day of session.”
HD135: Mike May, the Republican who lost to Rep. Jon Rosenthal (D-Houston) by more than 6K votes, has filed a petition with the Secretary of State seeking to have the election voided and a new one ordered. In his one-page petition, May alleges the outcome of his race “is not the true outcome because an election officer or other person officially involved in the administration of the election prevented eligible voters from voting.” May contends voters left polling places without voting “because numerous polling locations … did not have any paper ballots when those voters arrived.”
To succeed, May would need to prove that the number of voters who weren’t able to vote must at least equal the margin of defeat against Rosenthal, which would be more than 15% of voters in the district.
In a statement, Rosenthal said, “This ridiculous petition should be rejected out-of-hand as frivolous and without any merit, completely absent of any numerical basis for a challenge.”
Formal election contests for legislative races are referred to the House Speaker who appoints a committee and a special master to investigate the complaint. The last election contest to go to the House was a 2010 race involving a 12-vote margin of victory. Then-Speaker Joe Straus (R-San Antonio) appointed a nine-member select committee chaired by former Rep. Bob Hunter (R-Abilene) and named Rep. Will Hartnett (R-Dallas) as the special. The committee ultimately determined the challenger “failed to establish by clear and convincing evidence that the election contest outcome was not the true outcome.” The vote was unanimous.
Secretary of State: Secretary of State John Scott announced he would resign effective Dec. 31 to return to his private law practice. Scott has served in the position since October 2021 as the fifth Secretary of State named by Gov. Greg Abbott (R). Abbott’s next nominee will be subject to confirmation by the Senate.
The last three – David Whitley, Ruth Hughs and Scott – were not confirmed by the Senate. Whitley and Hughs resigned after failing to receive Senate confirmation, and Scott is resigning before the Senate next convenes.
Dallas: Former Dallas ISD Superintendent Michael Hinojosa said he would not challenge Mayor Eric Johnson.
Houston: LULAC has filed a lawsuit against the city challenging its model of 11 single-member districts and five at-large districts.
Recount, Runoff and Legislative Priority News for December 1
SD27 open: Adam Hinojosa (R) formally requested a recount of his 659-vote loss to Morgan LaMantia (D) in three of the district’s eight counties. “If honest mistakes were made in the counting, it would only be significant in a place where large numbers of paper or mail-in ballots were cast,” he said in a statement. “These counties are the logical place to double-check.”
Runoff Elections: Early voting is underway in jurisdictions holding Dec. 13 or Dec. 17 runoff elections including Austin (Mayor, D3, D5, D9), Corpus Christi (D1, D2, D3), El Paso (D1, D6, D8) and Laredo (Mayor, D1, D6). Early voting continues for Bryan’s (D5) Dec. 8 runoff election.
Austin: Mayor Steve Adler has declined to endorse between former mayor and former Sen. Kirk Watson (D-Austin) and Rep. Celia Israel (D-Austin), who advanced to a runoff to succeed him.
Legislation: Lt. Gov. Dan Patrick (R) revealed his priorities for the upcoming session. They included two election-related items:
- Restore voter fraud to a felony
- Ensure timely counting of votes and review of machines.
The latter appears to have been motivated by Harris County’s performance in releasing election results. Keep in mind that Harris Co. had to count more than 1.1M votes – almost as many votes were cast in the entire state of Oklahoma and more than the number of votes cast in 20 states.
Patrick, at another press conference, hinted he might seek re-election in 2026. “Never know,” he said.
2022 Results Become Official After Abbott’s Canvass
Gov. Greg Abbott (R) canvassed the statewide results of the 2022 general election yesterday (Mon.). As far as we can tell, no state races flipped from the unofficial election results.
Just over 8.1M Texans cast a vote for a certified gubernatorial candidate, representing 45.9% of registered voters and 42.5% of the estimated voting-eligible population. All three representations of turnout fell short of their comparable 2018 figures (8.4M votes cast, 53.0% of RVs, 46.3% of VEP), but represent the second highest such figures for a midterm election since at least 1982, which is the earliest mid-term for which we have a reliable VEP estimate.
Nearly 11M Texans – including a record 9.6M RVs – who could have voted in this election did not do so. Nearly 4M fewer RVs cast ballots in this election than in the 2020 general election, the largest drop-off in state history (The figure equals a decrease in the number of votes cast and an increase in the number of RVs.).
Final statewide results:
- Abbott (R) defeated Beto O’Rourke (D), 54.8%-43.9%
- Gov. Dan Patrick (R) defeated Mike Collier (D), 53.8%-43.5%
- Gen. Ken Paxton (R) defeated Rochelle Garza (D), 53.4%-43.7%
- Glenn Hegar (R) defeated Janet Dudding (D), 56.4%-40.9%
- Dawn Buckingham (R) won he LAND open race over Jay Kleberg (D), 56.2%-42.2%
- Agriculture Comm. Sid Miller (R) defeated Susan Hays (D), 56.3%-43.7%
- Railroad Comm. Wayne Christian (R) defeated Luke Warford (D), 55.4%-40.5%
- Supreme Court Justices Rebeca Huddle (R), Scott Walker (R) and Evan Young (R) won with 57.1%, 56.9% and 56.4% of the vote, respectively.
- Court of Criminal Appeals Judges Jesse McClure (R) and Scott Walker (R) won with 57.2% and 56.9% of the vote, respectively.
Measured head-to-head, the average statewide Republican candidate received 56.66% of the vote to the average statewide Democrat’s 43.34%. The five judicial races were tightly clustered around their average 57.00% for the Republican and 43.00% for the Democrat. The median statewide races were SC5 (57.1%-42.9%) and CCA5 (56.9%-43.1%) – averaging those yields 57.0% to 43.0%.
Our final projection of the head-to-head average statewide race was 55.87%-44.13%, approximately 0.8 percentage points from the actual result.
In terms of the number of votes received, the top vote-getter was Huddle with 4.53M. Paxton’s 4.28M was the lowest among the 12 contested statewide candidates. The spread between them was 252K votes – 3.1% of all votes cast. The Democratic spread between O’Rourke (3.55M votes) and Warford (3.22M votes) was 331K votes, which is 4.09% of all votes cast. This implies upwards of 95% of voters effectively cast a straight ticket, at least at the statewide level.
El Paso County: 34th Judicial Dist. Atty. Yvonne Rosales (D) has resigned, ending a lengthy legal effort to have her removed from office. Her resignation is effective Dec. 14, the day before a hearing that could have resulted in her temporary suspension pending a jury trial. Rosales’s resignation letter was given to District Judge Tryon Lewis (R) during a status hearing on the case. Gov. Greg Abbott (R) will appoint a successor to serve out the two-plus remaining years of Rosales’s unexpired term. The position also serves as the district attorney for Culberson and Hudspeth Cos.
Houston: Sen. John Whitmire (D-Houston) will “kickstart” his mayoral campaign tomorrow (Wed.) at a fundraiser hosted by Tilman Fertitta. Mayor Sylvester Turner is term-limited.
Texas Supreme Court Order Harris County to Keep Separate Counts
The Texas Supreme Court granted the state’s motion for temporary relief to require Harris Co. to account around 2K late-cast provisional ballots separately as part of the county’s canvass of the official election results. However, it did not go so far as to reject the ballots and instead provided an avenue for further litigation.
Polls in Harris Co. were opened an additional hour by court order, but the state Supreme Court ordered those ballots to be segregated. They were counted, and the county contends they were legally cast and should be included in the official totals.
The Office of Attorney General sought to have those ballots thrown out, arguing the lower court erred in extending the poll closing time by one hour. A similar court order kept polls open in Bell Co. for an additional hour, but the OAG has not challenged those ballots as far as we can tell.
In its order, the high court required Harris Co. to “conduct the canvass … as required by the Election Code” and to “separately identify in the vote tabulations the number of ‘later cast votes’ for each candidate in each race.” Once that is done, “candidates, the parties and this Court may ascertain whether the ‘later cast votes’ would be outcome-determinative and so that the parties can assess the extent to which further litigation is warranted.”
The outcome of at least one judicial race could be affected by the ruling: the 180th District Court. On Election Day, challenger Tami Pierce (R) led Judge DaSean Jones (D) by 165 votes. When all provisional ballots – including those cast before 7 p.m. – and legally late-arriving absentee ballots were counted, Jones had a 449-vote lead. It is unclear at this point whether the rejection of 2K late-cast provisional ballots would swing the race back to Pierce.
Once the votes are canvassed, candidates can formally request a recount or proceed to an election contest.
LaMantia, Plesa Increase Leads as Votes Are Canvassed
SD27 open: Democrat Morgan LaMantia’s lead over Adam Hinojosa (R) has increased to 655 votes following the canvasses of Bee, Cameron, Hidalgo and Nueces Cos. The county-by-county breakdown is as follows:
- Cameron: LaMantia 41,643 (+63), Hinojosa 33,822 (+22) – canvassed
- Hidalgo: LaMantia 26,465 (+44), Hinojosa 16,078 (+18) – canvassed
- Nueces: Hinojosa 15,034 (+15), LaMantia 7,132 (+36) – canvassed
- San Patricio: Hinojosa 12,226, LaMantia 5,378
- Kleberg: Hinojosa 4,163, LaMantia 3,281
- Willacy: LaMantia 2,174, Hinojosa 1,551
- Bee: Hinojosa 4,384 (+8), LaMantia 1,900 (+6) – canvassed
- Kenedy: Hinojosa 96, LaMantia 36
LaMantia had a 569-vote lead on election night.
HD70 open: Democrat Mihaela Plesa’s lead over Jamee Jolly (R) has increased to 859 votes following the county’s canvass. Plesa led by 821 votes on election night.
House Speaker: Speaker Dade Phelan (R-Beaumont) filed for another term as the House’s leader. Rep. Tony Tinderholt (R-Arlington) previously filed for the post.
SEN/PRES: U.S. Sen. Ted Cruz (R) confirmed he would seek re-election to a third term in 2024 following a speech at a Republican Jewish Coalition event. Cruz was asked if his re-election bid would make him no longer a presidential candidate, to which he reportedly said there would be “plenty of time” to discuss that race.
Under current state law, Cruz could seek both. Sec. 141.033 prohibits candidates from filing for more than one office on the same ballot, which in this case would be the Republican primary ballot. However, Sec. 141.033(c) provides that the prohibition does not apply to a candidacy for president or vice president when paired with candidacy for another office.
Harris County: The Office of Attorney General filed a petition today (Mon.) with the Texas Supreme Court to toss 2K provisional ballots cast by voters who arrived at the polls between 7 p.m. and 8 p.m. on Election Day. Polls were open that additional hour by court order. Those ballots were counted but held separately as required by a stay issued by the Texas Supreme Court on Election Day. The county intends to include them in the official results, which will be canvassed by the Commissioners Court tomorrow (Tues.).
At least one race – 180th District Court – would have a different outcome if the provisional votes were excluded. Incumbent Judge DaSean Jones (D) took the lead over challenger Tami Pierce (R) when all provisional and final absentee ballots were counted.
A similar situation arose in Bell Co., where polls were ordered open by an additional hour and provisional ballots were cast during that hour. As far as we can tell, the OAG has not challenged those ballots in court, though their reasoning for challenging the Harris Co. results should apply to Bell Co.
Trump Announces Comeback Bid, Exaggerates Election Performance
As expected, former President Trump announced his candidacy for the 2024 Republican presidential nomination last night (Tues.).
During his hourlong address, Trump asserted that he received the most votes in the 2020 election and he won every community along the Texas border with Mexico. Both claims are false.
As the Democratic challenger, now President Biden received 7M more votes nationwide than Trump, 81.3M to 74.2M. Trump has previously and frequently asserted (though he did not last night) that the election was stolen from him (It wasn’t.) and he would have won by millions of votes if all fraudulently cast votes were removed from the tally (He wouldn’t.).
As for his assertion about his performance in Texas, Biden received nearly 162K more votes than Trump in the 14 counties that line the Rio Grande. Trump received 38% of the vote in those counties in 2020, well below a minimum majority necessary to claim victory.
Trump won seven of those 14 counties, which collectively comprised less than 4% of the votes cast in all the state’s border counties. Trump lost the five largest counties in terms of votes cast. It is true that Trump improved his vote percentage in each county from 2016. He improved by 10.6 percentage points across all 14 border counties overall.
Trump also called for an end to early and absentee voting. “I’ll get that job done,” he said. “That’s a very personal job for me.” More than 5.5M Texans voted early for last week’s general election, representing 68% of votes cast. In 2020, early voting was even more popular as more than 9.8M Texans voted early by mail or in person, representing 87% of votes cast. Gov. Greg Abbott (R) extended the early voting period to three weeks in 2020 because of the Covid-19 pandemic.
Early voting opportunities are provided by 46 states with an average of 23 days for in-person voting (Texas has 12 days.). Absentee voting is available to all voters, no excuse required, in 35 states. The other 15 states, including Texas, offer absentee voting options with specific excuses.
Trump also called for elections to be conducted exclusively with paper ballots.
Congressional Leadership: Sen. Mitch McConnell (R-Ky.) and Rep. Kevin McCarthy (R-Calif.) handily won caucus leadership elections. Several Texans publicly supported unsuccessful challengers. U.S. Sen. Ted Cruz (R) backed Sen. Rick Scott (R-Fla.), who received 10 of the 47 votes cast. U.S. Rep. Chip Roy (R-Austin) nominated and U.S. Rep. Michael Cloud (R-Victoria) seconded the nomination of Rep. Andy Biggs (R-Ariz.), who lost to McCarthy, 188-31, on a secret ballot. McCarthy must still be elected by a roll-call vote of the full House, which is not a foregone conclusion given the razor-thin majority Republicans will hold in the chamber.
©2022 Texas Election Source LLC
Election Season Winds Down As Prefiling Legislation Begins
Today (Mon.) was the deadline for provisional voters to cure the reason they had to vote provisional (e.g., address did not match voter roll, left ID at home). Today was also the deadline for absentee voters to cure defects on their absentee ballot carrier envelopes (e.g., identification number was not written on it, mismatched identification numbers) in person at the county’s early voting clerk.
Today was also the last day ballots received from overseas voters could be accepted by county election officials.
Upcoming dates of interest include:
- Thursday – last day voter registrars can complete review of provisional ballots; last day to mail notices of rejected absentee ballots
- November 21 – last day the early voting ballot board can count late domestic ballots, provisional & overseas ballots
- November 22 – last day for counties to canvass election results
- November 26 – earliest day the state canvass can occur
- December 8 – deadline for counties to provide electronic precinct-level results to Secretary of State’s office
- December 12 – deadline to conduct state canvass
Recounts must be requested by 5 p.m. local time of the second day after the canvass is conducted, but since that date is variable, so is the recount request deadline. A recount can be requested if the margin of loss is less than 10% of the total number of votes cast for that office or if fewer than 1,000 votes were cast for all candidates for an office combined. An automatic recount occurs only if there is a tie.
PRES: A new CWS Research poll conducted for the state Republican Party finds Florida Gov. Ron DeSantis leading former President Trump, 43%-32%, in a hypothetical primary race that included four other named potential candidates. U.S. Sen. Ted Cruz (R) was not one of them. If Trump does not run, DeSantis would be the choice of 66% of likely primary voters. The poll of 1,099 Texans was in the field Novemeber 12-13 and has a ±2.96% margin of error.
[https://texasgop.org/wp-content/uploads/2022/11/22.11.14-Republican-Party-of-Texas-Statewide-2024-R-Primary-Likely-Voter-Poll.pdf]
Prefiling: Today (Mon.) was the first day legislators and legislators-elect may file bills and resolutions for the 88th Regular Session, which convenes January 10. At least 75 of those first-day bills could impact elections in the state.
Turnout Fails to Reach 2018 Levels as 11 Million Texans Decline to Vote
Unofficial turnout figures indicate 7.8M Texans voted and another 11M could have but didn’t. A state record 9.6M registered voters did not cast ballots, and an estimated 1.4M Texans are eligible to vote but are not registered to vote. This is the third general election where more than 10M voting-eligible Texans chose not to vote, joining 2014 (11.9M) and 2010 (10.5M).
The number of votes cast was around 300K less than in 2018, while the number of registered voters increased by 1.9M since that election.
Measured as the percent of registered voters casting a ballot for an official gubernatorial candidate, turnout was 45.7%. This is down more than 7 points from 2018 (53.0%) but is otherwise the highest percentage for a mid-term election since 1994 (50.9%).
Measured as the percent of voting-eligible population casting a ballot for an official gubernatorial candidate, turnout was 42.3%. This is the second highest such percentage for a mid-term election since 1982, the oldest year for which an academic estimate of the voting-eligible population is available. In 2018, 46.3% of the voting-eligible population voted.
Put another way, imagine a room with 100 voting-eligible Texans standing in it:
- 23 voted for Gov. Greg Abbott (R)
- 19 voted for Beto O’Rourke (D)
- 1 voted for someone else
- 7 weren’t registered to vote, and
- 50 didn’t vote.
Half the room was registered to vote but did not vote. And it’s not just this election they sat out.
More than 5M registered voters have not voted in any primary or general election in the last four election cycles, according to Republican strategist and data nerd Derek Ryan’s analysis of voter history. Of those, only about 300K had voted early for this year’s general election, leaving the remaining 4.8M still on the sidelines heading into Election Day.
According to the Secretary of State’s voter registration figures, a little over 1.8M of these 5M registered voters (36%) have suspense registrations. This usually means that the voter’s registration card was returned to the county voter registrar as undeliverable. Registered voters can hit the suspense list if they fail to respond to a notice seeking to confirm their address or if they get out of jury duty by saying they no longer reside in the county.
Suspense voters have the same right to vote as non-suspense voters, but they seldom do. In fact, if they are still on the suspense list on November 30 following the second general election since they landed on the list, then their registration is canceled the following January. In November 2020, there were 1.7M voters on the suspense list. In January 2021, the number dropped to 918K.
About one out of every five registered voters with no recent voting history registered after the November 2020 election, according to Ryan. We’ve now accounted for a little over half of registered voters with no recent voting history. The rest simply haven’t voted. If it’s because of dissatisfaction with the candidates, well, those were chosen in primary elections that have even lower turnout.
Let’s go back to that room with 100 voting-eligible Texans in it. If you asked for a show of hands of who voted in the primary, and they were being honest, you’d get this:
- 10 voted in the Republican primary, of which 7 voted for Abbott
- 6 voted in the Democratic primary, of which 5 voted for O’Rourke
- 10 weren’t registered to vote, and
- 74 didn’t vote.
One sixth of the room picked the candidates for everyone else.
For those races that went to a runoff, including several statewide races, well:
- 5 voted in the Republican runoff
- 3 voted in the Democratic runoff
- 9 weren’t registered to vote (Thank you to the one who registered after the primary); and
- 83 didn’t vote.
So that’s one out of every 12 people who picked runoff winners for everyone else. Three people out of the 100 voted for the Republican runoff winners, including Atty. Gen. Ken Paxton (R), and two out of the 100 voted for his eventual opponent, Rochelle Garza (D).
We’ve had to take a little liberty with rounding numbers here to keep the room at 100 people. For example, O’Rourke received 91% of the primary vote, but we can’t have a fractional person, so 5 out of 6 (83%) was the closest whole number we could choose. That said, this exercise demonstrates the non-voting nature of the electorate.
©2022 Texas Election Source LLC
Republicans Sweep Statewide Races, Make Small Gains in Legislature
It could’ve been worse. Or better, depending on one’s perspective.
Republicans swept statewide offices for the 13th consecutive election cycle, and they already had built-in majorities in both legislative chambers. But it wasn’t a red wave as much as it was a regression to the mean.
As of 1:30 a.m. CST, Gov. Greg Abbott (R) leads former U.S. Rep. Beto O’Rourke (D-El Paso), 56%-43%. O’Rourke underperformed his 2018 campaign in each of the 15 counties with the most registered voters, leaving him to make up the difference in counties that weren’t favorable to him to begin with.
The top three Democrats on the ballot – O’Rourke, Mike Collier and Rochelle Garza – are within three tenths of a percentage point of each other. The rest of the statewide slate were between 40% and 42% of the vote. The spread between the top performer, O’Rourke, and the statewide Democrat with the lowest percentage, Luke Warford, stands at 3.1 percentage points, suggesting a very high rate of straight-party voting.
Redistricting largely took competitive seats off the map and instead locked in stable Republican majorities and solid Democratic blocs in each legislative chamber.
Republicans picked up a Senate seat – a foregone conclusion after Sen. Beverly Powell (D-Burleson) dropped her re-election bid – and came within 570 votes of a second one. Morgan LaMantia (D) defeated Adam Hinojosa (R), 50.2%-49.8%, in a race that will almost certainly go to a recount. Republicans will hold a 19-12 advantage in January.
In the House, Republicans gained three seats but failed to capitalize on several opportunities to claim some winnable suburban and South Texas seats:
- HD37, which is held by Rep. Alex Dominguez (D-Brownsville), was won by Republican Janie Lopez, 52%-48%. Dominguez unsuccessfully sought a Senate seat.
- HD52, which is held by Rep. James Talarico (D-Round Rock), was won by Republican Caroline Harris, 56%-44% (2 boxes were still out at press time). Talarico won in nearby HD50.
- HD65, which is held by Rep. Michelle Beckley (D-Carrollton), was won by Republican Kronda Thimesch, 60%-40%. Beckley unsuccessfully ran for statewide office.
Democrats captured two Republican-held seats:
- HD70, which is held by Rep. Scott Sanford (R-McKinney), was narrowly won by Democrat Mihaela Plesa, 50.7%-49.3%, over Jamee Jolly (R). Sanford did not seek re-election.
- HD92, which is held by Rep. Jeff Cason (R-Bedford), was won as expected by Salman Bhojani (D), 58%-42%. Cason did not seek re-election.
Republicans will enter the session with an 86-64 advantage.
We won’t know until we run the numbers, but the reddening of South Texas may have stalled. Reps. Bobby Guerra (D-Mission), Abel Herrero (D-Corpus Christi), Oscar Longoria (D-Mission), Mando Martinez (D-Weslaco), Eddie Morales Jr. (D-Eagle Pass) and Richard Raymond (R-Laredo) all won comfortably.
In the other competitive district, Rep. John Lujan (R-San Antonio), twice the winner of a special election for HD118, won a full term, 52%-48%, over his most recent special election rival, Frank Ramirez.
National Republicans had their eyes on three South Texas congressional seats but only claimed one. In CD15 open, Monica De la Cruz-Hernandez defeated Michelle Vallejo, 54%-46%. Democrats took back CD34 as U.S. Rep. Vicente Gonzalez (D-McAllen) defeated U.S. Rep. Mayra Flores (R-Los Indios), 54%-46%, undoing a special election earlier this year. U.S. Rep. Henry Cuellar (D-Laredo) turned away Cassy Garcia, 55%-45%. The Texas congressional delegation will have 25 Republicans and 13 Democrats. Neither Republican U.S. senator was on the ballot this year.
We didn’t pay a whole lot of attention to county and local races tonight, but a couple races caught our eye:
- In Harris Co., County Judge Lina Hidalgo (D) holds a narrow lead over Alexandra del Moral Mealer (R), 50.8%-49.2%, as of press time.
- In Nueces Co., County Judge Barbara Canales lost to former Rep. Connie Scott (R-Corpus Christi), 56%-44%.
- In Austin, Rep. Celia Israel (D-Austin) and former Sen. Kirk Watson (D-Austin), himself a former mayor, are headed to a mayoral runoff. Israel finished first with 40.5% of the vote. Watson receive 35% of the vote.
- In El Paso, Rep. Art Fierro (D-El Paso) advanced to a runoff against incumbent council member Claudia Lizette Rodriguez for the D6 seat.
We’ll take a look at more local results in the coming days.
As for turnout, the Secretary of State was reporting 7.2M voters as of press time, but the number should go up as counties finished their counts. We’ll explore turnout in more detail in the coming days.
©2022 Texas Election Source LLC
General Election Preview: Statewide Sweep and Small Gains
Ordinarily, we preview an election with some analyses – hopefully insightful ones – around the storylines we’re following. This time, the storyline seems quite simple: It’s a bad year for Texas Democrats. They’ve been fighting gravity this entire cycle. The only reason it won’t be a worse year for Texas Democrats is redistricting largely replaced competitive seats with safe ones. There’s simply not that much that can be lost or won.
In some key respects, 2022 reminds us of 2010:
- The sitting Republican governor is more popular (or less unpopular) than that Democratic president
- The economy was the top issue for voters, and more than 40% of them think they are economically worse off than a year ago
- The border is the next top issue for voters
- Republicans lead the generic ballot
- Nearly all statewide elected officials were seeking re-election
- Aside from the gubernatorial nominee, the Democratic statewide candidates had very low name ID, insufficient resources and/or had lost previous statewide campaigns
- An unpopular Democratic president was in the White House
- Legislative Republican candidates have big campaign finance advantages, and a handful of big Republican donors dominated the 8-day-out reports; and
- Polls consistently showed the Republican governor holding an upper single-digit lead over the Democratic challenger.
The key difference between 2022 and 2010 is where the election falls in the redistricting cycle. The 2010 election was the last election in that cycle. Over the decade, districts that were drawn Republican-leaning had become more competitive, and a spike in Democratic enthusiasm in 2008 brought them to within a couple of mail pieces from a 75-75 tie in the House. Democrats were thus defending lots of those seats, and they lost pretty much all of them, giving Republicans their first-ever triple-digit membership.
The 2022 election is the first of this redistricting cycle. The new maps locked in Republican majorities in both chambers, and they likewise locked in Democratic blocs. In between are a handful of competitive seats, mostly in South Texas and the suburbs, and those are all that could be won or lost. It cannot be the wipeout that was 2010.
As far as statewide races go, the Republican slate has swept 13 straight elections since the last Democrats were elected in 1994. Every state has elected a Democrat to statewide office since. Even though single-punch, straight-party voting is now a relic, straight-party voting remains extraordinarily high. The margins between the top-performing and lowest-performing candidates continue to narrow. We expect another sweep, and we expect the margins to be 9-12 points across the board, except AG, where a 5- to 7-point margin appears more likely.
The formula for Democratic success requires several disparate elements each to break the right way, as they nearly did in 2018 when then-U.S. Rep. Beto O’Rourke (D-El Paso) nearly upset U.S Sen. Ted Cruz (R):
- Higher turnout among younger voters, infrequent voters and newly registered voters
- Overall turnout more representative of a presidential election than a mid-term one
- A gender gap wide enough, especially in the suburbs, to claw into a huge Republican advantage among men
- Republican-leaning independents willing to split their ticket
- Greater enthusiasm among Democratic voters than Republican ones
- Sufficient support among and turnout from Hispanic/Latino voters
- Strong support and turnout from Black voters; and
- A gap in the rural red wall as Republican voters sense they have no real reason to vote (high likelihood of Republican success at the top coupled with non-competitive local races).
Most of that went O’Rourke’s way in 2018. The biggest exception was the rural red wall – it held. Cruz’s margin of victory came from counties with fewer than 20K voters.
O’Rourke faces a different environment this time. For starters, he’s challenging Gov. Greg Abbott (R), who has consistently been more popular (or less unpopular) than Cruz. O’Rourke also has to carry the burden of his disastrous presidential campaign, which contributed to his higher negative numbers this time around. And then there’s that bulleted list – none of them are as favorable to him as in 2018.
- Early voting turnout is lower among younger voters, infrequent voters and newly registered voters.
- Overall turnout is more representative of a mid-term election than a presidential one.
- The gender gap isn’t as robust as it was four years ago, at least as far as polling goes.
- Republican-leaning independents don’t appear to be as willing to support O’Rourke as they were in 2018, according to the polls.
- Despite the end of Roe v. Wade and the fallout of January 6, Democratic enthusiasm isn’t greater than Republican enthusiasm – This is often the case in mid-term elections. The voters of the party out of the White House are typically more enthusiastic about voting against the president than the president’s party is enthusiastic about voting with him.
- Hispanic/Latino voters, especially along the border, have rapidly shifted toward Republicans, decreasing the Democratic advantage rather than increasing it.
- Black turnout appears to be lower than in 2018, at least in Black-majority precincts and zip codes in some of the bigger counties; and
- That rural red wall has only gotten higher. Abbott’s vote percentage will look like speed limit signs in 200-plus counties.
As the party’s standard-bearer, O’Rourke appears poised to lose to Abbott by around 9 points. For another statewide Democrat to win, they would need the support of roughly one out of every 12 Abbott voters. If we assume straight-party voting is effectively as prevalent as it was in 2018, that equates to about one out of every three people who voted for Abbott and at least one Democrat somewhere on the ballot. That is a tall order.
Looking at districted offices, we project Republicans will gain:
- One seat in the Senate (SD10 open) and narrowly miss gaining a second (SD27 open), giving them a 19-12 majority
- Four seats net in the House – picking up HD37 open, HD52 open, HD65 open, HD70 open and HD74 (Morales) while losing HD92 open – for an 88-62 majority; and
- One net seat in the U.S. House delegation – picking up CD15 open, retaining CD34 (Flores), taking new CD38 and losing new CD37 – for a 26-12 split.
CD28 (Cuellar) is also a potential pickup opportunity, but it requires the district’s electorate to shift quite a bit more, faster than CD15, which was ostensibly drawn as a pickup district. CD34 (Flores) is the only possible Democratic pickup.
In the Texas House, the only other potential Republican pickups are HD34 (Herrero) and, quite a bit longer shot, HD35 (Longoria) and HD41 (Guerra). The only other realistic possibility for a Democratic pickup is HD118 (Lujan). No other Texas Senate seats are realistically in play.
Most of the other storylines will require deeper dives into the data than what can be accomplished in the middle of a Tuesday night. Did Democratic gains in the suburban areas continue, slow or backtrack from 2018 and 2020? Did South Texas’s shift toward Republicans accelerate, stay the same or slow down a bit? Did turnout patterns ultimately look more like 2020 or 2018 (or 2014)? Did the rural red wall get higher (more net votes) or deeper (higher percentage) or both? Did expected lower turnout in blue counties result in lower net votes, lower percentages of the vote, or both? Did absentee ballot rejection rates more closely resemble 2020 or the 2022 primaries? Did Democrats retain the absentee ballot advantage they claimed in 2020, or did the historical partisan balance return?
Our live coverage will begin at 7 p.m. CST. At this point, we expect to sign off around midnight – a few hours earlier than we typically do – because of a relative lack of competitive races to watch. We’ll also be tweeting results and analysis @TXElects.
©2022 Texas Election Source LLC
Turnout Appears Headed for the ‘Under’
Tuesday is Election Day.
Early voting ended below the 2018 mark, but daily turnout exceeded the 2018 numbers for the last three days of the early voting period.
Statewide, just under 5.5M Texans voted early in person or by mail through Friday, the end of the early voting period. The final number will rise a bit as mail ballots continue to be accepted. In 2018, the final early voting total was just south of 6M.
In the past three mid-term (gubernatorial) election cycles, about 2.3M Texans have cast ballots on Election Day. If the historical average holds, total turnout will be around 8M, which would fall short of the 8.33M cast in 2018. Our most recent estimate was 8.5M to 9.25M votes cast, so it appears we may be headed for the “under.”
©2022 Texas Election Source LLC
2024 General Election
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Laura Carr
Co-Founder & Head of Business Development TXLege AI & Owner TXElects
Laura Carr began her political career in Washington, D.C., working in various policy and communication roles for legislative offices in both the House and Senate on Capitol Hill. Laura later worked in fundraising at The U.S. Chamber of Commerce and No Labels—a bipartisan nonprofit dedicated to finding common-ground solutions.
Laura returned to the Lone Star State, where she served in the Office of the Texas Governor, later making a notable impact as the Government Relations Director at The Brannan Firm. Most recently, Laura was Policy Director specializing in technology policy in the Texas Senate.
Laura earned her Bachelor’s degree in Political Science from the University of Alabama. As Head of Business Development for Texas Election Source, Laura acts as a liaison between new and previous customers.
Jeff Blaylock
TXElects Founder & Senior Editor
Jeff Blaylock offers more than 25 years of political analysis, campaign, government, and advocacy experience, Jeff is a noted expert on Texas elections and the legislative process. He served the Texas House of Representatives as a Chief Committee Clerk for the powerful State Affairs Committee and the Financial Institutions Committee. During his time in the Capitol, Jeff became a legislative process and rules expert. No point of order was ever sustained against the committees’ legislation under his leadership. Jeff served as a policy and budget analyst for the White House’s Office of Management and Budget and the U.S. Department of Veterans Affairs. He served in various management roles in numerous political campaigns across the country.
He began offering his election insights and predictions to his public affairs clients in 2005. He published Texas Election Source for nearly a decade and returns now as Senior Editor. Jeff understands public policy and the ways issues can resonate in elections. As managing director at the respected public affairs firm Public Strategies (now Hill+Knowlton Strategies), he advised clients on legislative strategies, public affairs, strategic and crisis communication, and brand reputation.
Jeff earned a Bachelor’s degree in journalism with a political science minor from Texas Christian University and a Master’s in public policy from Georgetown University. Jeff is currently the VP of Client Services at Kith, a crisis management consulting firm.
Eric Davis
Co-Founder & CEO TXLege AI & Owner TXElects
Eric Davis is a seasoned visionary in the realm of go-to-market strategy. Eric is renowned for his expertise in tech companies in Silicon Valley. His most distinguished accomplishment lies in his role at Prodigy Software, where he led revenue generation and masterminded the strategic blueprint from the company’s inception to its $100 million acquisition by Upstart Holdings.
Beyond his tenure at Prodigy, Eric has continued to contribute to the tech landscape by actively investing in and advising numerous companies at the forefront of introducing new technology into the tech industry, including cutting-edge AI tech. Eric’s understanding of AI and the intricacies of go-to-market strategies brought him the opportunity to work within the underserved realm of Texas politics.
