May 15, 2019
Texas Republicans and advocacy groups typically on opposite sides of voting rights fights went into 2019 with one bit of electoral common ground — voting machines with paper trails.
But with less than two weeks remaining in the legislative session, the main legislative vehicle for a statewide move toward that kind of election equipment appears to be gutted. Left in its place is a controversial, wide-ranging election bill that’s been offered as an election security measure but has instead been catalogued by opponents as a pathway to state-sanctioned voter suppression that could go as far as criminalizing honest mistakes while voting.
Filed in early March, Senate Bill 9 by Republican state Sen. Bryan Hughes emerged as a priority for Senate leadership and first appeared to seize on bipartisan support for modernizing outdated voting equipment and enhancing election security.
In opening his pitch on the Senate floor in mid-April, Hughes said the “heart of SB 9” was a provision requiring counties to use voting machines by the 2024 general election that provide an auditable paper trail that can be verified by voters.
“It’s our responsibility on behalf of the people of Texas to make sure each county is conducting elections in the most secure way possible or practicable and that voters can truly trust the results,” Hughes said. “This shift to systems with a paper component, with those audits that will follow, will give certainty to every Texan that their vote will be counted fairly.”
The Senate signed off on the measure on a party-line vote. But when it made it to the House Elections Committee on Wednesday, state Rep. Stephanie Klick, a Fort Worth Republican and the panel’s chair, offered a substitute version of the bill that stripped the voting machine language altogether.
The most recent version of SB 9 still makes more than two dozen changes to election practices that proponents have generally described as election security and integrity measures meant to zero in on wrongdoers, not legitimate voters. Hughes previously chalked the other changes up to an attempt to address problems he had heard about from election administrators, district attorneys and the attorney general’s office.
But those changes — many of which election administrators actually oppose — are extensive and significant. To name a few:
The legislation would make it a state jail felony for Texans to vote when they’re ineligible even if they did so unknowingly, elevating that offense from a Class B misdemeanor to include possible jail time and a fine of up to $10,000. Although federal law generally allows a voter to receive assistance in filling out a ballot by the person of their choice, SB 9 would authorize partisan poll watchers or election officials to be present at a voting station if a voter is getting help from someone who isn’t a relative. Those individuals would then be allowed to examine the voter’s ballot before it’s submitted to determine whether it was filled out “in accordance with the voter’s wishes.”
SB 9 would require people who drive at least three voters to whom they’re not related to the polls at the same time for curbside voting — popular among the elderly and people with disabilities — to sign a sworn statement affirming those voters are physically unable to enter the polling place without personal assistance or health risks.
And the legislation grants the state attorney general direct access to the voter rolls and essentially allows Texas to participate in a controversial, Kansas-based voter verification program that’s intended to allow states to compare voter rolls to find people registered in multiple states. It has proved to be ineffective, inaccurate and mired in cybersecurity weaknesses.
Laying out SB 9 before a packed committee room Wednesday morning, Klick told her colleagues the intent of her version of the bill was “neither voter suppression nor to enable voter fraud.”
“Ultimately, the intent of SB 9 is to strengthen election integrity and make sure all votes cast are legitimate votes and no legal voter is inhibited from casting their ballot,” Klick said.
But most of the individuals who testified before the committee countered that.
The Texas Association of Election Administrators re-upped its opposition to the legislation, with its president, Chris Davis, speaking against what he called the “criminalization of poll workers” and other “bad policy” in the bill. He focused on the provisions allowing poll watchers to record ballot counting where voting is happening, the curbside voting provision and new language added by Klick that regulates where counties can place voting centers if they allow what’s known as countywide voting, which allows a voter to cast votes at any polling place and not just the one in their voting precinct.
“As the very people that will be tasked to carry out this bill’s measures and quite frankly administer your next elections, these are our problems with it,” said Davis, the election administrator in Williamson County.
A volunteer deputy registrar from the Rio Grande Valley told lawmakers she was wary of a provision of the bill that makes it a state felony to provide false information on a voter registration application because she had registered more than 3,000 voters, many of whom had inadvertently made mistakes when filling out their applications.
Several individuals testified against the bill, citing concerns about the chilling effect it could have on voters with disabilities. Jeff Miller of Disability Rights Texas explained there was no safe harbor for those assisting people with disabilities from a provision that would make it a state jail felony to unlawfully assist a voter by suggesting even with a gesture how a person should vote.
Miller said the harsher penalty could make it tougher to find people willing to assist voters if they fear they could be charged with a crime while helping voters with intellectual or developmental disabilities through gestures or questions.
Among the several individuals with disabilities at the hearing, Alex Birnel with MOVE Texas was more direct about the barriers the bill would create for voters with disabilities through additional requirements on those assisting them.
“As someone who uses crutches, I think I know a crutch when I see it,” Birnel said.
They were joined in their opposition by the League of Women Voters, which has previously said any good in the bill is outweighed by problematic provisions; progressive groups worried that voters would be thrown in jail for making honest mistakes; and organizations with histories of fighting unlawful voting restrictions, including the Mexican American Legal Defense and Educational Fund and the Texas Civil Rights Project.
Although a few people testified in support of SB 9, several of them indicated they had concerns with Klick’s revision to the bill.
The clock is ticking on the legislation, but the hostility building toward the bill could reach a fever pitch in the waning days of session.
SB 9 faces several procedural hurdles to make it out of the House. First, the House Elections Committee must approve it ahead of key weekend deadlines for it to get on the full chamber’s agenda. Though the committee was initially planning to vote the bill on Wednesday, it left it pending when it adjourned early Thursday morning. The committee is expected to take it up at another meeting scheduled for later Thursday morning. Then, it will need to get on a House calendar and be approved by the full House before a midnight deadline Tuesday.
That rush was apparent Wednesday when Klick took the unusual step of closing registration for members of the public wishing to testify half an hour into the 8 a.m. hearing. A motion to reopen registration by state Rep. Art Fierro, D-El Paso, was not recognized. A total of 256 people registered a position on the bill, with 233 declaring their opposition to the bill. And more than 100 signed up to testify before the 8:30 a.m. deadline.
The episode served as a potential preview of the simmering partisan tensions the bill could stoke in a Legislature historically roiled by electoral issues. The Texas Democratic Party, which opposed the legislation, pounced on the decision to cut off witness registration, claiming Republicans “intend to silence the voices of Texans” who want to speak against the bill. Soon after the committee took a break so members could join their colleagues for the House’s regular agenda, a coalition of 15 progressive and voting rights groups sent a letter to the committee imploring it to reopen registration.
The committee returned to a standing-room-only hearing Wednesday night almost 10 hours later and did not reopen registration before restarting four more hours of public testimony.
Up first were Kathryn Dodi and Beverly Black, who asked the committee to vote down the bill because of the detrimental impact it could have on voters with intellectual disabilities like them. They’ve both asked for assistance to cast their ballots and feared the provision of the bill that enhances penalties related to unlawful assistance, even though they’ve never been influenced by the people assisting them.
“Having someone with me to support me is my right. They’re only there to make sure I understand what I’m reading,” Doty said. “Please don’t take away people with disabilities’ right to vote with support. It makes us feel good, like we matter.”
Testifying with an assistant who supported her by prodding her with questions, Black explained she knows who is running and their political positions because she follows the news on television but requires assistance to cast a ballot because she cannot read.
“Don’t cut the vote off — please don’t,” Black said. “I need someone to help me.”