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Texas Legislature Continues Its Focus on Election Rules

State lawmakers have filed dozens of bills in an effort to address how Texas administers its elections and prosecutes fraud. It’s unlikely that the Democratic efforts to expand voting access will pass.

Texas state capitol
The Texas Capitol in Austin on Wednesday, March 17, 2021.
(Juan Figueroa/ The Dallas Morning News)
(TNS) — With more than 200 voting-related bills already filed, elections remain a center stage issue this year for the Texas Legislature.

With recent problems at Harris County polls in mind and an eye on undoing, or at least limiting, the fallout from a controversial Court of Criminal Appeals ruling that neutered the Texas attorney general’s efforts to investigate voter fraud, Republicans have filed numerous bills aimed at local election officials.

“It’s a very important part of our society; setting free and fair elections,” said Royse City Republican state Rep. Bryan Slaton, who has filed multiple bills that would change how Texas conducts its elections and prosecutes voter fraud.

Meanwhile, Texas Democrats have filed dozens of bills that would expand access to voting by creating online voter registration options, providing greater access for disabled voters and expanding countywide centers, to name a few.

Republican-authored measures will have a greater chance to pass given the partisan dominance the GOP maintains over the Legislature. Those include proposals to outlaw electronic voting machines, prohibit polling places on higher education campuses and the creation of a state election police force.

Ripple Effect of Harris County Elections

Many of the bills take aim at Harris County. The state’s most populous county has faced multiple problems in recent elections, including in November, when at least 60 polling locations had shortages of paper ballots, causing voting to be halted.

The issues spawned numerous lawsuits, a call from the lieutenant governor for the county to redo the election and multiple bills proposed at the Capitol.

One proposal that has caught the attention of watchdog organizations is House Bill 2020 from Cypress Republican Rep. Tom Oliverson. His bill would give the Texas secretary of state, an appointee of the governor, the power to fire an elections administrator. That power is typically reserved for the county commissioners who hire an elections administrator.

Oliverson said elections administrators are unaccountable at the local level, something he called an “Achilles heel” in how Texas administers elections locally.

“They are fairly insulated and fairly unaccountable,” Oliverson said. “There needs to be a stronger check and balance” on election administrators.

Oliverson’s bill raised alarm at Protect Democracy, a nonprofit organization focused on fighting authoritarianism in U.S. elections.

“Political interference with election administration is one of the things that we have been most concerned about,” said Ben Berwick, counsel for Protect Democracy. “Frankly, it is a possible predicate to election subversion.”

Houston Republican Sen. Paul Bettencourt also had Harris County in mind when he filed Senate Bill 220, a bill that would create a state police force focused on elections.

Bettencourt’s proposal would create a “chief election marshal” reporting to the secretary of state who would in turn appoint about 30 Texas Department of Public Safety officers assigned to monitor elections in their districts.

Election marshals would be given authority to respond to complaints and issue orders to local election officials as they carry out an election. The bill would also create a rapid response court system designed to quickly hear and make rulings on election-related lawsuits.

“I’m not an election denier. This is about seeing a county just willfully decide they are going to do things that aren’t in the Election Code,” Bettencourt said, referring to an effort by the Harris County elections office to send mail-in ballots applications to all registered voters as a COVID-19 precaution. The Texas Supreme Court halted the action after the Texas attorney general sued.

“You want rational top-down guidelines for elections, because they’re too important to fail,” Bettencourt said.

The Harris County elections administrator’s office said in an emailed statement that efforts at the Capitol, including 2021′s omnibus elections law Senate Bill 1, have made conducting elections confusing.

“Efforts by state legislators directly targeting Harris County do not benefit voters here nor anywhere in Texas,” the statement said. “They also don’t improve election security. … Any state proposals should improve access to voting, not make it worse.”

Undoing An Unpopular Court Ruling

Multiple Republican proposals have also been filed that are designed to undo a controversial 2021 ruling from the Court of Criminal Appeals that gutted the Texas Attorney General Ken Paxton’s ability to prosecute election fraud, a pet issue for the state’s top prosecutor.

Paxton’s election fraud division has remained dormant since the ruling forbade his office from prosecuting voter fraud cases unless requested by local authorities. Paxton has publicly vilified the ruling, which was made by a panel of elected Republican judges citing Reconstruction-era laws from the Texas Constitution.

Royse City’s Slaton has filed a law targeting district attorneys who refuse to prosecute voter fraud. His proposal, House Bill 125, would create a civil process for lawsuits against district attorneys who do not prosecute election fraud.

It also lays the groundwork for removing district attorneys who enact policies preventing the prosecution of voter fraud related crimes.

“The [Texas] Supreme Court said the attorney general cannot prosecute voter fraud. It’s got to be the DA,” said Slaton, a two-term member of the House. “So if they want to turn a blind eye, or just not do it, whatever the reason may be, the attorney general can say, ‘Why aren’t you looking into it?’”

“It adds checks and balances to the process,” he added.

James Slattery, senior staff attorney at the Texas Civil Rights Project, said bills like Slaton’s might still run afoul of the Texas Constitution.

“The intent is to try to restore the substance of what the court took away,” Slattery said. “It’s clearly violating at least the spirit of the separation of powers as defined by that court decision.”

Several lawmakers have filed amendments to the Texas Constitution that would give Paxton the authority to investigate election fraud. However, passing those is a heavier lift because it requires a two-thirds majority for them to be placed on the ballot.

It means it would require some buy-in from Democrats, who are unlikely to give any more power to Paxton.

Making Election Fraud a Felony

Securing elections was a chief priority of Republicans during 2021′s session, stoked in part by the election loss of former president Donald Trump, whose denial of election results continues to give credence to some election conspiracy theories.

A GOP-backed omnibus election bill emerged and passed over Democrats’ protests and a quorum-breaking hijacking of a special session. The law, Senate Bill 1, included expanding access for poll watchers, creating criminal penalties for election office staffers who proactively encouraged voting by mail and spawning new identification requirements for mail-in ballots that led to thousands of votes to be invalidated.

Quietly included in the bill was a measure that decreased the criminal penalty of illegal voting from a felony to a misdemeanor. Republicans remain somewhat befuddled as to how it was included and the lawmaker who added it said at the time that it was in response to the failure to add certain language to the bill that highlighted intentionality in voter fraud.

Lt. Gov. Dan Patrick, who is the president of the Senate and arguably the most powerful lawmaker in the Capitol, announced last week that restoring the criminal penalty to a felony was his highest priority of the session after passing a budget. Several Republicans in the House and Senate had already filed bills that would increase the penalty from a Class A misdemeanor carrying a maximum sentence of one year in jail to a second-degree felony with a maximum 20-year sentence in prison.

Five bills have been filed to do just that. One, Senate Bill 166 from Sen. Bryan Hughes, R-Mineola, has already gained traction after it was referred to a Senate committee that he chairs, all but guaranteeing it will continue to advance.

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