January 29, 2023

Less than two years after Texas Democrats staged a dramatic showdown to prevent sweeping changes to electoral laws, the Legislature is poised to reconsider the way Texas elections are conducted.

At the beginning of the 2023 legislative period in January, more than 75 bills related to elections or votes had already been tabled. Both major political parties have drafted legislation. Democrats want more voting rights. Republicans are focused on improving election security.

Because Texas Republicans successfully pushed through a number of their electoral priorities last session, election-related legislation is unlikely to garner as much attention this year as it did in 2021.

This year’s Texas election debate gripped the country as state Republicans enacted an omnibus electoral law during a special legislative session in 2021. Democratic lawmakers fled the state Capitol and made their way to Washington, D.C., hoping to draw more national attention to their opposition to the legislation, forcing a nearly six-week legislature shutdown to prevent the lower chamber from getting enough members to pass bills.

The Texas House Democrats Breaking Quorum in the nation's capital host a press conference along with Sen. Jeff Merkley (D-OR) and grassroots organizers at the United States Capitol in Washington, DC on Friday, August 6, 2021.  Friday marks both the anniversary of the signing of the Voting Rights Act and the final day of the special session of the Texas Legislature.  At the event, the Texas House Democrats will speak about their victory in killing Texas Republicans' anti-election policies at home and their successes in enforcing federal voter protection legislation.
Texas House Democrats Breaking Quorum hosted a press conference along with US Senator Jeff Merkley, D-Ore., and grassroots organizers at the US Capitol in Washington on August 6, 2021. Photo credit: Shuran Huang

They were ultimately unsuccessful, and the law, signed by Gov. Greg Abbott, included a number of polling restrictions and tightening poll security, including a ban on drive-through and 24-hour voting, and an expanded role for poll observers.

Nevertheless, Lt. gov. Dan Patrick said that tightening electoral laws is on his list of legislative priorities for this session. His goals include turning the penalty for illegal voting from a misdemeanor to a felony after it was downgraded in 2021.

Another Republican proposal would allow the Secretary of State to appoint poll officials to investigate violations of the election law.

“We need election results that we can trust,” said Rep. David Spiller, R-Jacksboro, who introduced legislation to increase criminal penalties for election crimes. “These laws will ensure we have safe elections.”

Since 2020, Republicans across the country — fueled by former President Donald Trump’s baseless allegations of voter fraud — have sought to raise voting barriers. After the 2020 election, more than 3,600 election-related bills were introduced nationwide and 368 passed, according to the Voting Rights Lab, which tracks such laws.

Texas Democrats find the new proposals worrying. State Assemblyman Trey Martinez Fischer, chair of the Texas House Democratic Caucus, said in a statement to The Texas Tribune that House Democrats would fight to protect voting rights.

Fischer was a key figure during the 2021 quorum and is known for using his extensive knowledge of the legislative process to kill Republican bills.

“House Democrats intend to use every rule in the rule book, every sentence, every comma, every semicolon of the Texas Constitution to defend the right to vote,” Fischer said.

One bill that has already drawn criticism is a proposal for election marshals tabled by state Senator Paul Bettencourt, R-Houston. The bill appears to be similar to a law passed in Florida that created an electoral crime unit, a move widely criticized by voting rights advocates as ineffective and unnecessarily aggressive.

Police body camera footage released by The Guardian in January showed armed Florida cops arresting a Miami resident at gunpoint in August after the person allegedly voted illegally. He is among at least 19 Floridians arrested for voter fraud since the state established the Office to Investigate and Prosecute Voter Fraud.

At least some of the defendants have indicated that they believed they were eligible to vote.

“Despite a tremendous investment of resources, this law is not delivering results,” said Daniel Griffith, senior director of policy at Secure Democracy USA, a nonpartisan organization based in Washington, DC that is trying to improve access to voters. “There’s no pervasive voter fraud, so it’s difficult to understand the need for these law enforcement units.”

In Texas, Bettencourt said poll workers are needed because of “voter irregularities” in places like Harris County, where some polling stations opened late and were reportedly out of paper on Election Day in November. In a post-election assessment, Harris County Election Administrator Clifford Tatum said the investigation into the incident was “inconclusive.”

Voters wait in line after 7:00 p.m. on November 8, 2022 at the Metropolitan Multi-Service Center in Houston.  The voting location was one of the Harris County polling stations open until 8:00 p.m. on election day.
Voters stand in line after 7 p.m. on November 8, 2022 at the Metropolitan Multi-Service Center in Houston. Credit: Briana Vargas for the Texas Tribune

Describing the problems in Harris County as “preposterous,” Bettencourt said the bill he was introducing would allocate resources to investigate and immediately fix administrative problems like the lack of ballots. He said the bill had nothing to do with Republican allegations of voter fraud following Trump’s false claims about the 2020 election.

“This is not about denying elections; it’s about voter irregularities,” Bettencourt said. “When the precinct returning officers don’t want to follow the law, we need someone whose duty it is to go in and say, ‘Follow the law.'”

Bettencourt introduced a similar bill during the 2021 legislative session, but it stalled in the House of Representatives.

State Senator Paul Bettencourt, R-Houston, addresses his Senate colleagues on March 2, 2021.
State Senator Paul Bettencourt, R-Houston, addresses his Senate colleagues on March 2, 2021. Credit: Jordan Vonderhaar for The Texas Tribune

Other bills that have been introduced relate to penalizing illegal voting. In 2021, lawmakers reduced the illegal voting charge from a second-degree felony to a Class A misdemeanor. Two bills from Spiller and Senator Bryan Hughes would reinstate the felony charge.

“So that we can have safe elections,” said Spiller. “And it’s nothing new – it’s been around for years.”

In a controversial case in 2016, a woman who cast a tentative vote during a supervised release on a federal conviction was sentenced to five years in prison. Back then, illegal voting was a second-degree state crime. A Texas criminal appeals court asked a lower appeals court to reconsider the case because voter Crystal Mason was unaware she was ineligible to vote. This case is still moving through the court system.

Voting rights advocates warn that reopening a felony charge could put people off and make voters more intimidated.

“Looking back over the last couple of legislatures, there have been repeated attempts to find creative ways to prosecute people for what really looks like an honest mistake,” said Anthony Gutierrez, executive director of Common Cause Texas, a nonpartisan organization that advocates for implements policies such as online voting registration and ending gerrymandering. “There’s no infrastructure to tell people what the process is for when you get to vote again [after release from prison] or how to vote again.”

Two other bills tabled in the Texas House of Representatives would expand Texas Attorney General Ken Paxton’s powers to prosecute election crimes, something he has prioritized since taking office in 2015. One bill would allow the bureau to appoint special prosecutors for cases, the other would penalize local prosecutors who “limit enforcement of voting rights.”

Across the aisle, Democrats are introducing bills to support their own priority: expanding voting access. A bill tabled in the House of Representatives would allow Texans to fill out their voter registration application online, which the majority of states in the US already allow.

“We all want safe elections, and we have that in Texas,” said Rep. John Bucy III, D-Austin, who sponsored an electronic voter registration bill. “We just have to figure out how to make them more accessible to Texans.”

Bucy also proposed legislation to increase access to a tracker he helped launch during the last session for ballot-by-mail requests. Overall, Bucy said he is confident that bills that limit election security will not be a focus during this session.

“These are diversionary legislation to appease Donald Trump and his faction,” Bucy said. “I don’t think House people will stand for that.”

The deadline for submitting a bill is March 11, the 60th day of the legislative session.

Disclosure: Common Cause and Secure Democracy were financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization funded in part by donations from members, foundations, and corporate sponsors. Financial backers play no part in the Tribune’s journalism. A complete list can be found here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/01/25/texas-legislature-election-voting-rights-debate-2023/.

The Texas Tribune is a member-supported, nonpartisan newsroom that educates and engages Texans in state politics and politics. Learn more at texastribune.org.

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