With the introduction of House Bill 6 (HB 6) and Senate Bill 7 (SB 7), Texas has joined the growing chorus of states that have either passed or drafted legislation regarding “voter integrity and security.” According to the National Conference of State Legislature, states have proposed or enacted 3103 bills related to the regulation of elections.
The Brennan Center for Justice reports that, “legislators have introduced three times the number of bills to restrict voting access as compared to this time last year. Twenty-eight states have introduced, prefiled, or carried over 106 restrictive bills this year (as compared to 35 such bills in fifteen states on February 3, 2020).”
And following the pattern of the legislation passed in Georgia and Florida, there have been vociferous allegations of discrimination and racism as protest have ensued. Opponents of these bills, say that they “will disproportionately harm ballot-box access for Texans with disabilities and voters of color.” Some were more pointed with their accusations.
Texas Voting Suppression
Texas Democratic Party Vice Chair Dr. Carla Brailey issued the following statement: “Texas Republicans are hellbent on cutting Texans off from their right to vote, and the reason is simple: they know that if every eligible voter has the chance to make their voice heard, we will vote them out. Senate Bill 7 is a disgrace that echoes the Jim Crow-era voter suppression laws targeting Black and Latino communities, as well as voters with disabilities.” Such accusations of voter suppression have not sat well with business leaders, who have vocally pushed back against the bills.
As reported by NBC News, “More than 180 local business and community leaders and 50 corporations have come out against voting restrictions in Texas in a coordinated dual effort aimed at rallying against voting restrictions and pending legislation.” This has resulted in a flurry of lawsuits working their way through Texas courts.
The main author of SB 7, Rep. Briscoe Cain, District 128, is undaunted, stating, “We don’t need to wait for bad things to happen to protect the security of the election,” Cain said. “I don’t believe that this is voter suppression, I believe it is voter enhancement.”
Texas Voting Suppression: What are the Claims?
This article attempts to answer the following questions about HB 6 and SB 7: What are the specific allegations against the proposed legislation? Is there any merit to these allegations? What do the bills actually say?
- Make it a felony for a public official to distribute an absentee ballot application or to encourage anyone to submit an absentee ballot application who did not request one
- Give the attorney general broad authority to prosecute volunteers who engage in get-out-the-vote campaigns in the lead-up to elections
- Making it more difficult for people with disabilities to cast their ballots
- Give partisan “poll watchers” special rights to intimidate voters, outlawing their removal from polling places for any reason other than “election fraud”
- Require county-wide polling places in a given county have “approximately the same number of voting machines” as every other county-wide polling place in the county, regardless of variations in population
Let’s unpack each of these points in detail, looking at the specific language of the bills.
Unpacking Texas Voting Legislation
Make it a felony for a public official to distribute an absentee ballot application or to encourage anyone to submit an absentee ballot application who did not request one
Texas HB 6 reads:
(a) A public official commits an offense if the official, while acting in an official capacity, knowingly: (1) solicits the submission of an application to vote by mail from a person who did not request an application; (2) distributes an application to vote by mail to a person who did not request the application unless the distribution is expressly authorized by another provision of this code; (3) authorizes or approves the expenditure of public funds to facilitate third-party distribution of an application to vote by mail to a person who did not request the application; or (4) completes any portion of an application to vote by mail and distributes the application to an applicant.
Texas SB7 reads:
The early voting clerk or other election official commits an offense if the clerk or official knowingly mails or otherwise provides an early voting ballot by mail or other early voting by mail ballot materials to a person who did not submit an application for a ballot to be voted by mail under Section 84.001.
The defenders of the bills point out that Texas is trying to get its arms around ballot harvesting,which they say is associated with corruption. And there is cause for concern. Back in September of 2020, Tulsi Gabbard, a Democrat who represented Hawaii’s 2nd congressional district in the United States House of Representatives from 2013–2021, had this to say about the use of third-party personnel to increase voting: “It’s not a partisan issue. It’s been abused to help both R & D candidates, including in North Carolina & California.”
However, the language of the bills plainly makes it more difficult to get early voting ballots into the hands of potential electors. These types of restrictions are burdensome for all voters, but they may be particularly onerous for minority communities.
As the Washington Post puts it: “Early voting is intimately bound up in race, not simply because minorities are more likely to take advantage of it, but because the policy itself addresses systemic barriers they face. When we decide to vote, we’re not simply making a calculation about whether we like the candidates, or care about the issues at stake, or value the abstract idea of democracy. We also have to make calculations about how to get to the polls, whether we can spare the time to go there, and who will watch the kids while we’re gone. These costs associated with voting — in lost pay, in childcare, in transit fares — are higher for minorities and the poor. Which is why they are among the largest beneficiaries of early, flexible voting.”
Whether this bill is designed to target these communities is arguable; whether it makes it more difficult for all voters in general, is not. We seem to be stuck in a tug of war between assuring accurate and honest elections on one hand while maintaining civil liberties on the other.
Give the attorney general broad authority to prosecute volunteers who engage in get-out-the-vote campaigns in the lead-up to elections
Both bills mention the word “felony” 10 times in conjunction with violations of the proposed codes. Some of these seem appropriate. For example, SB 7 states that it is a felony if a “person, including a public official, commits an offense if the person communicates with a court clerk with the intention of influencing or attempting to influence the composition of a three-justice panel assigned a specific proceeding under this section.”
And although there is no language about “volunteers” or “get-out-the-vote” campaigns, both bills make it a felony to violate any of the restrictions listed. With regard to assistance in receiving ballots, both HB 6 and SB 7 state, “An offense under this section is a state jail felony,” a hefty penalty that could dissuade voting rights activists from recruiting and equipping voters in an upcoming election.
Making it more difficult for people with disabilities to cast their ballots
Perhaps the most controversial provisions of the bills is language centered around assistance provided to voters who presumably have a disability. HB 6 reads:
A person, other than an election officer, who assists a voter in accordance with this chapter is required to complete a form stating: (1) the name and address of the person assisting the voter; (2) the manner in which the person is assisting the voter; (3) the reason the assistance is necessary; and (4) the relationship of the assistant to the voter. (b) The secretary of state shall prescribe the form required by this section. The form must be incorporated into the official carrier envelope if the voter is voting an early voting ballot by mail and receives assistance under Section 86.010, or must be submitted to an election officer at the time the voter casts a ballot if the voter is voting at a polling place or under Section 64.009.
In similar parlance, SB 7 reads:
A person, other than an election officer, who assists a voter in accordance with this chapter is required to complete a form stating: (1) the name and address of the person assisting the voter; (2) the manner in which the person is assisting the (3) the reason the assistance is necessary; and (4) the relationship of the assistant to the voter. (b) The secretary of state shall prescribe the form required by this section. The form must be incorporated into the official carrier envelope if the voter is voting an early voting ballot by mail and receives assistance under Section 86.010, or must be submitted to an election officer at the time the voter casts a ballot if the voter is voting at a polling place or under Section 64.009.
While such conditions will unlikely interfere with casting a vote and most of this language is already current law, the language of both bills inserts the phrase “under penalty of perjury” as part of the oath that people who provide assistance must swear. People should take this charge seriously because violations of voting laws not only undermine the integrity of our voting system, but also weaken voter confidence in the results of an election, something that has haunted the United States in recent elections.
Yet, the threat of punishment for perjury opens up the possibility of unfounded prosecution for what could be a legitimate mistake or oversight on the person providing assistance. At best it will be perceived as petty; at worst it could lead to violations of civil liberties.
Give partisan “poll watchers” special rights to intimidate voters, outlawing their removal from polling places for any reason other than “election fraud”
HB 6 sets the tone for empowering poll watchers by stating:
The purpose of this chapter is to preserve the integrity of the ballot box in accordance with Section 4, Article VI, Texas Constitution, by providing for the appointment of watchers. To effect that purpose, a watcher appointed under this chapter shall observe the conduct of an election and call to the attention of an election officer any observed or suspected irregularity or violation of law in the conduct of the election.
HB 6 further stipulates that, “An election officer commits an offense if the officer intentionally or knowingly refuses to accept a watcher for service when acceptance of the watcher is required by this section.”
SB 7 specifically delineates the conditions and restrictions of the removal of a poll watcher, stating :”A presiding judge may not:(1) have a watcher appointed under Subchapter A, Chapter 33 removed from the polling place; or (2) require a watcher appointed under Subchapter A, Chapter 33, to leave the polling place.”
HB 6 clarifies the conditions of removal, stating a “presiding judge may remove a watcher from a polling place only if the watcher engages in activity that would constitute an offense related to the conduct of the election, including an offense under Chapter 276. Given that Subchapter A, Chapter 33 stipulates that “Watchers may be appointed by each candidate whose name appears on the ballot or the list of declared write-in candidates in an election,” the claim that either of these bills inserts, in their present forms, “partisan” watchers seems unfounded.
As to the allegation that these bills give poll watchers “special rights to intimidate voters,” both bills state, “a watcher who is entitled to ‘observe’ an activity or procedure is entitled to sit or stand near enough to see and hear the activity or procedure.” And while both bills also give watchers unfettered access to observe the manner in which ballots are processed, tabulated, and stored, there is no language presently that could be construed as allowing poll watchers to “intimidate” voters.
Require county-wide polling places in a given county have “approximately the same number of voting machines” as every other county-wide polling place in the county, regardless of variations in population
SB 7 does seek to regulate the distribution of polling places, stating:
In a county with a population of one million or more, the number of polling places located in each state representative district included in the territory of the county is calculated by dividing the number of eligible voters residing in that district by the total number of eligible voters residing in the county and using the number generated as a percentage to allocate the same percentage of polling place locations, rounding up to the nearest whole number, if necessary.
This seems at first blush like a straightforward measure designed to ensure equitable distribution of polling places. Given that the language applies across all counties with a population of one million or more, there doesn’t seem to be anything inherently discriminatory about this approach. However, as reported by Alexa Ura of The Texas Tribune:
“That formula would capture those five, mostly Democratic counties, while the more than 60 other Texas counties that use countywide voting — many of them rural and under Republican control — would remain under the state’s more relaxed rules for polling place distribution. A formula based on voter registration would likely reduce the number of polling places in House districts represented by Democrats — the vast majority of them people of color serving districts that typically have a larger share of voters of color compared to Republican-held districts — where registration numbers are generally much lower than in districts represented by Republicans.”
Of course, bills in both chambers of the Texas Legislature are likely to evolve as they are each amended in both the House and the Senate respectively. Given that Republicans control both chambers, it stands to reason these bills will merge to form new voting laws. Whether these laws assure accurate and honest elections while maintaining civil liberties is the question all Americans should have a vested interest in.