On August 31, both houses of the Texas legislature passed an electoral law that inspired many of the state's elected Democrats to flee Texas to block the law. The Texas Constitution requires two-thirds of the members of each house to be present to pass laws.
Texas Republican Governor Greg Abbott is an outspoken supporter of the electoral law known as SB 1 and is expected to sign it.
SB 1 has changed and changed a lot in the last few months, and the final version doesn't include some of the most aggressive attempts to limit voting rights that were in previous iterations. The final version removed a provision that would have closed many city constituencies and another that would have ended the early Sunday morning vote when many black churches sponsor “soul-to-the-poll” trips.
Nor does it contain anything resembling the most disturbing provision of the recently passed Georgia Electoral Act, which allows Republican officials to take over electoral administration in Democratic strongholds like Atlanta, which has the potential to steal voters on a massive scale.
However, the bill contains a number of provisions that either make it difficult to vote in Texas or tweak the state's electoral rules to benefit Republicans.
For example, in 2020, some polling stations in Harris County, a highly democratic area that includes Houston, stayed open for 24 hours. The Republican bill bans this practice while expanding early voting in many smaller counties – which are usually the domain of the GOP.
Similarly, the bill imposes new restrictions on postal voting, e.g. In 2020, Republicans were far less likely to vote postal votes than Democrats, most likely because then-President Donald Trump repeatedly denounced postal votes.
However, the increase in postal voting in 2020 is largely due to the pandemic – many voters did not want to take the risk of voting in person if they could contract Covid-19 – and that concern is unlikely to be a major concern in future elections. In addition, Texas already has extremely strict postal voting restrictions: most Texans under 65 are not allowed to vote by postal vote. The new restrictions should therefore only have a marginal effect on voter turnout.
That might be enough to turn around a very close election, but the new postal voting restrictions are unlikely to turn a comfortable Democratic victory into a Republican victory.
A potentially worrying provision of the GOP law requires electoral officials to perform monthly cleanups of the state's electoral rolls, ostensibly to identify non-citizens who may have registered to vote. Another offers partisan election observers, who are allowed to observe elections and the vote counting process, but can also try to disrupt the election, new legal protection.
However, both provisions are less aggressive than similar provisions in previous versions of the bill.
Nobody who cares about voting rights should celebrate SB 1. It creates unnecessary barriers between voters and the franchise, and subtly changes Texan electoral law in ways that are likely to benefit the party that drafted the bill. But much of SB 1 changes only marginal changes to the already rather restrictive electoral laws of Texas.
With this overarching picture, let's delve a little deeper into the two most troubling parts of the bill.
SB 1 revives a failed attempt to remove voters from the state's electoral roll
In 2019, then-Texas Secretary of State David Whitley drew up a list of nearly 100,000 registered voters who he claimed might not be U.S. citizens. And he called for a revision of the state's electoral roll to clean up all supposed non-citizens.
The list turned out to be profoundly flawed.
Whitley's office compiled the list by matching the names of registered voters with the names of Texas residents who notified the state that they were not citizens when they were given a driver's license or other ID. But the list included many legitimate voters who were not citizens when they obtained their driver's license but were later naturalized.
Ultimately, Whitley stepped down – he had served a temporary position and could not be permanently confirmed as the state's senior election officer after falsely accusing thousands of Americans of being non-citizens. Texas also agreed to abandon the proposed cleanup of its electoral roll as part of a settlement of three proxy lawsuits.
Abbott later appointed Whitley to a job in the governor's office for $ 205,000 a year.
SB 1 contains language that will revive that purge effort, albeit with an important safeguard that was not in place during Whitley's failed 2019 purge. The purge resumes under SB 1, but the state "must not consider information obtained from documents submitted by the voter to the department before the individual's current voter registration took effect".
In theory, this provision should prevent voters from being disfellowshipped if they first get a driver's license and then become citizens. A voter who receives a driver's license in April, becomes a naturalized citizen, and registers to vote in July cannot be deleted just because the state has evidence that they were not a citizen before July.
However, voter cleanups of this type are notoriously unreliable, often leading to false positives for voters with common names. To give an example: There are more than 130 people named "Juan Gonzalez" living in Dallas. If only one of these individuals is a non-citizen with a Texas driver's license, it could lead the state to falsely identify another Juan Gonzalez as an illegally registered voter, especially if the non-citizen has the same birthday as a citizen with the same name.
Texas law requires the state to notify a voter who has been swept away by such a purge and give them the opportunity to prove their citizenship. However, the burden of proof is likely to be disproportionate on citizens with Spanish surnames or on those who are otherwise disproportionately falsely identified as non-citizens.
SB 1 could make it easier for election observers to harass election officials
Like many states, Texas allows candidates and political parties to appoint election observers to monitor the election process and ballot counting. In 2020, however, some election monitors appointed by the Trump campaign in several key states behaved disruptively or made frivolous legal claims against the election officials they were monitoring.
Earlier versions of SB 1 made it quite difficult for election officials to remove election observers who were disrupting an election. The final version allows the most senior polling officer of a given polling station (known as the "presiding judge") to "call a law enforcement officer to request removal of an election observer if the election observer commits a breach of the peace". or a violation of the law. ”But in most cases, presiding judges cannot remove an election observer unless an election officer personally witnesses a violation of the law.
SB 1 also makes it a Class A offense, punishable by up to one year in prison, if an electoral officer "willfully or knowingly refuses to accept an observer for service when acceptance of the observer is required by law". As a result, officials may be reluctant to remove a disruptive election observer for fear that they could be prosecuted and threatened with a draconian penalty.
Indeed, a feature of SB 1 is that election officials who commit minor violations impose extremely high criminal penalties. An official who “solicits a request for a vote by mail from someone who has not made a motion” is committing a crime, as do most election officials who mail an unsolicited motion to vote to a voter. Officials who “send an early postal ballot or other early postal ballot to someone who the clerk or officer knows has not requested a postal vote” risk up to 180 days in prison.
With such high penalties for such minor offenses, SB 1 risks discouraging qualified individuals from serving as election officials. Why take a job like this when it can put you behind bars?
All in all, SB 1 is far less likely to create the kind of widespread disenfranchisement of Democratic voters that Republicans could achieve under Georgia's new electoral law. But it will make it harder for some voters to vote, and it likely foreshadows a much more momentous battle over gerrymandering in Texas.