Early voting numbers could spell trouble for Houston’s embattled Equal Rights Ordinance, according to three local political scientists who’ve been closely monitoring the returns.
However, supporters of the ordinance, better known as HERO, warned against “Monday morning quarterbacking” in advance of Tuesday’s vote, saying although they expect the final tally to be tight, they’re still confident they’ll prevail.
Turnout is up sharply from previous Houston municipal elections, with the largest increases occurring in predominantly Republican and African-American precincts, where a majority of voters are likely to oppose HERO, according to Bob Stein, a political scientist at Rice University.
“I’ve actually looked at the scenario, and think [HERO] could go down, and go down by a big margin,” Stein said. “That’s the worst part. If it goes down closely, the council members and the mayor might try to amend it, but if it goes down by a big margin, it really becomes difficult to do much with.”
Mark Jones, another Rice political scientist, agreed that early voting returns, along with public opinion polls showing only a slim margin in favor of the ordinance, should be cause for concern for HERO supporters.
“If I had to do an even-money bet, I’d say it may not pass, but I think it really is too close to call,” Jones said.
Brandon Rottinghaus, a University of Houston political scientist, said the rare ballot presence of a viable Republican mayoral candidate, Bill King, is driving up GOP turnout. Meanwhile, well-known Democratic state Representative Sylvester Turner, the mayoral frontrunner, is fueling an increase among African-American voters, who polls show as less likely to support HERO than whites, or Hispanic or Latino voters.
“There are significant splits in communities that are otherwise inclined to vote more with Democrats or vote more liberally on HERO that create problems for its passage,” Rottinghaus said. “We’ve had kind of a perfect storm of alignment between conservative politics and conservative voters in a way we don’t normally see in Houston mayoral elections.”
Through Wednesday, 133,594 Harris County voters had cast early or mail-in ballots. With two days left in early voting, that figure was already nearly double the number who cast early or mail-in ballots in 2009, the last time the mayor’s seat was open.
HERO supporters suggest the increase in turnout is part of a historic trend toward more voters casting ballots early as opposed to on Election Day.
But Stein countered that much of the increase has been among “unexpected voters,” which he defines as those who haven’t cast ballots in at least two of the last three mayoral races. A significant number of those unexpected voters are from heavily GOP and black precincts.
Stein said he now expects overall turnout to be as high as 230,000 of the city’s nearly 1 million voters, up from fewer than 180,000 in 2009.
A KHOU/KUHF poll released earlier this month found that 43 percent of respondents supported HERO, 37 percent opposed it and 18 percent were undecided, with a margin of error of 4.1 percent.
The same poll showed the claim that HERO would allow men to enter women’s restrooms to be persuasive among undecided voters, especially black women. HERO opponents have built their campaign almost entirely around the debunked transgender bathroom myth. “I just think the anti-HERO people have the right message, and I think the pro-HERO people may have the money, but like in the Spanish Civil War, having the right song might in this case be more valuable,” said Stein, who helped conduct the KHOU/KUHF poll. “Whether it’s true or not doesn’t really matter.”
Groups supporting the ordinance have raised more than $3 million, swamping opponents, but Rottinghaus said no amount of paid messaging can overcome an energized voter base.
Stein said Houston Unites should have done more to highlight the potential negative economic consequences of repealing HERO, an argument the KHOU/KUHF also found to be persuasive, rather than trying to humanize transgender people or characterize the ordinance as “the right thing to do.”
Jones said a lack of Spanish-language outreach to Hispanic voters could also contribute to HERO’s possible demise, pointing to the pro-HERO campaign’s failure to advertise on Univision or Telemundo.
Rottinghaus said the anti-HERO campaign simply beat supporters to the punch.
“They established early on the narrative about this being about public safety as opposed to being about discrimination, and that took hold and was difficult to undo,” he said.
HERO received 11th-hour endorsements Thursday from the White House and former Secretary of State Hillary Clinton, the Democratic presidential frontrunner. The ordinance has also won the public backing of actress Sally Field and U.S. Housing and Urban Development Secretary Julian Castro.
But pro-HERO star power may have come too late to counter an early anti-HERO ad featuring former Houston Astro Lance Berkman, in which Berkman calls trans women “troubled men.” Then there was Houston Texans owner Bob McNair, who gave $10,000 to the anti-HERO campaign before withdrawing the contribution.
“Even though Bob McNair withdrew his donation, that really undermined a big plank of the ‘Yes’ campaign: focusing on the potential for the loss of the  Super Bowl,” Jones said.
Richard Carlbom, campaign manager for the pro-HERO coalition Houston Unites, noted that they’ve had only two months to organize, after the City Council voted to place HERO on the ballot in response to a ruling from the Texas Supreme Court. “I think we’ve done a good job of reaching out to the various different communities to try to articulate how many different folks are going to benefit from having the Equal Rights Ordinance in place,” Carlbom said.
Kevin Nix, a spokesman for Houston Unites, was more blunt: “Maybe we could wait until Wednesday to do all this Monday morning quarterbacking.”
Stein, Jones and Rottinghaus all said if HERO is repealed, it’s likely Houston’s new mayor and city council would try to pass an amended nondiscrimination ordinance to mitigate economic impacts.
As currently written, HERO prohibits discrimination based on sexual orientation, gender identity and 13 other characteristics in employment, housing and public accommodations.
Similar ordinances in some Texas cities, including Fort Worth, Plano and San Antonio, include exemptions for restrooms and similar facilities. But national LGBT groups, which have been major funders of the pro-HERO effort, would be unlikely to support such a watered-down measure.
Houston is the largest city in the US, and the only major city in Texas, that lacks an LGBT-inclusive nondiscrimination ordinance.
LGBT advocates say if HERO is repealed, it could have far-reaching consequences, with HERO opponents’ strategy being replicated in other campaigns across the country. The HERO vote is the nation’s most significant referendum on LGBT equality since the United States Supreme Court’s June ruling in favor of same-sex marriage.
According to Rottinghaus, it’s also about the future of state politics.
“How much can the Democrats push Texas to be more liberal?” he said, pointing to an anti-HERO TV ad from GOP Lieutenant Governor Dan Patrick. “The fact that he’s put his own money behind this shows there’s a growing concern amongst Republicans that as the demographics in Texas change, that some of the politics will change, and the Republicans need to find ways to counteract this progressive movement before it starts.”