Texas’ New Voting Law: Protector or Persecutor
November 2021 | Luke Perea, Staff Writer/Editor
In light of the recent controversy surrounding the Presidential Election of 2020 regarding compromised election integrity, states have begun to draft their own bills attempting to address concerns of voter fraud. One such state is Texas, whose congress recently introduced Senate Bill 1 (SB1). This bill is not only the most comprehensive of the new bills, but it has also been met with the most disapproval. The subsequent backlash of SB1 has resulted in several groups suing the state, citing that the bill introduces discriminatory provisions that unfairly restrict certain demographics from voting. While Americans wait for the deliberation of the bill amidst a foggy cloud of partisan narratives, it is important to delve into the content of the bill itself to determine what is really written inside SB1 and see if the lawsuits’ claims hold any merit.
SB1 contains a plethora of legislative measures designed to protect election integrity. The bill’s most noteworthy provisions include its ban on 24-hour voting and drive-through voting, new mail-in restrictions, anti ballot harvesting legislation, and restrictions on third-party voter assistance.[1] The supporters of SB1 have ardently maintained that its legislation is written with the sole objective of eliminating voter fraud. While these are not the only provisions introduced within the bill, these specific new laws have been the center of national media coverage surrounding SB1.[2] The heightened media coverage is due in part to these provisions being the most restrictive of the new legislation, but it is also due to the significant opposition that these measures have received.
The backlash against SB1 has proved to be both extensive and swift, with several large groups joining together to produce multiple lawsuits against the bill. The Department of Justice (DOJ) is, at the date of publishing, the most recent and notable of these lawsuits. A statement from the DOJ reads, “Texas Senate Bill 1’s restrictions on voter assistance at the polls and on which absentee ballots cast by eligible voters can be accepted by election officials are unlawful and indefensible.”[3] Additional suits have been filed jointly by numerous organizations such as the American Civil Liberties Union and the Texas Civil Rights Project, amongst many others.[4] The suits, echoing the DOJ, have accused the aforementioned provisions of being discriminatory against voters of different demographics and “the organizations that represent, assist, and support these voters.”[5] To truly determine the future of SB1, each measure requires further interpretation, beginning with the restrictions of mail-in balloting.
The first provision that has been contested by the lawsuits is the new restrictive measures in regards to mail voting. In the DOJ’s statement on their lawsuit, they purport that SB1 is a direct violation of Section 101 of the Civil Rights Act, which reads that a “rejection of mail ballots and mail ballot request forms because of certain paperwork errors or omissions that are not material to establishing a voter’s eligibility to cast a ballot” is considered a suppression of voters’ rights.[6] Now, SB1 does include new requirements for identification in order to apply for mail voting.[7] The bill also introduces a signature verification process, which does allow a committee to investigate whether a signature matches the one on the application for early voting or any other signed document by that person.[8] However, SB1 also provides that voters who potentially made a mistake writing their signature, or even outright forget their signature to reclaim their ballot via mail, will be notified by phone call or email. Furthermore, they may still come to the clerk’s office and correct their mistake, even if the committee determines it is too late on election day.[9] While these provisions do not make mail-in balloting easier for voters in Texas, they also do not outright prevent civilians from voting in any capacity. Since this procedure does not include a legal omission of a mailed ballot, this provision does not seem to violate the Civil Rights Act. As such, this aspect of the DOJ’s suit likely would hold no merit.
Many lawsuits have claimed that SB1, through its removal of 24-hour and drive-through voting, is discriminatory against voters, specifically against voters of color. Statements within the suit claim that because of the fact that the year 2020 yielded a record minority turnout in Texas, coupled with “Texas’ history of discrimination in the electoral process,” then the bill must have been written with discriminatory intent.[10] Although 24-hour and drive-through early voting is eliminated within the bill in Section 3.13, the bill expands the hours for daytime in-person early voting available in Section 3.09.[11] The greatest increase for voting hours is from 6 a.m. to 10 p.m. in counties with a population of 55,000 or more, which would include urban centers that house the highest concentration of minorities compared to anywhere else in the state.[12] These provisions seem to counteract the removal of drive-through voting in order to provide more opportunity for early voting, while doing it in a presumptively safer way. While Texas did yield a record minority voter turnout in 2020 and did write racist laws in the Reconstruction era, the plaintiffs do not provide a concrete description or clear reference of how this specific provision is written to suppress minority voters.
Additionally, the plaintiffs argue that because of the removal of drive-through voting as well as restrictive voter assistance laws, the disabled are discriminated against. They cite the Americans with Disabilities Act (ADA), which states that a “public entity may not deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service...”.[13] The plaintiffs then claim that because SB1 does not allow for someone to provide adequate assistance to someone who may need it, the bill is in violation of the ADA. Moreover, the DOJ asserts that “Senate Bill 1 harms those voters by barring their assistors from providing necessary help, including answering basic questions, responding to requests to clarify ballot translations or confirming that voters with visual impairments have marked a ballot as intended.”[14] However, Section 6.02 of SB1 states that any person who has a physical disability, such as one who cannot physically read the ballot or see it, can receive assistance with either “marking or reading” the ballot.[15] Even though the bill does not allow assistants to help for in-person voting, fortunately Texas already has election officials stationed at in-person locations to provide additional physical assistance to the disabled.[16] For mail voting, the bill states that anyone assisting a voter must fill out additional information, such as their relationship to the voter as well as confirming they were not compensated.[17] Nowhere in the bill does it bar a mail assistant from giving physical aid to someone who is disabled, so long as they fill in the aforementioned information.
An additional provision that is heavily contested relates to ballot harvesting, which is the practice of a third-party political organization member who volunteers to transport someone’s ballot for them. In the joint lawsuit, the plaintiffs argue that SB1’s anti ballot harvesting provision violates both the 1st and 14th Amendments. The plaintiffs claim that the bill “regulates a sweeping amount of noncommercial political speech and constitutionally protected expressive conduct.”[18] Additionally, it is argued that the provision’s “expansive and open-ended language is unconstitutionally overbroad” and in violation of the 14th Amendment.[19] However, Section 7.01 contains clear language on what is defined as ballot harvesting, and it excludes penalties for anything that does not involve a physical ballot or compensation in exchange for ballot delivery.[20] Additionally, the bill explains that any person found to have delivered ballots for a specific candidate may be liable to compensate the opposing party.[21] Ultimately, this provision opposes the claim that the penalty against a ballot harvester is unclear and does not abide by due process.
Voting is essential for American democracy to function and thrive. It is natural to question any voting legislation to ensure all Americans have equal access to the ballot box. Texas Senate Bill 1 is undoubtedly restrictive, but many provisions were written to provide voters who may be negatively affected by the changes an opportunity to still have their voice heard in a safer way. The legal system will ultimately decide what will happen with SB1, setting a consequential precedent for state voting laws in the future. However, upon investigating its content, it is fairly clear that SB1 is designed with the goal of addressing election integrity, not suppressing voters for partisan gain.
Sources
Ura, Alexa. “The Hard-Fought Texas Voting Bill Is Poised to Become Law. Here's What It Does.” The Texas Tribune. The Texas Tribune, August 30, 2021.
Finn, Teaganne. “Justice Department Sues Texas over Restrictive Voting Law.” NBCNews.com. NBCUniversal News Group, November 4, 2021.
NBC 5 Dallas-Fort Worth. “DOJ Takes Aim at Texas, Sues over SB1 Voting Law.” NBC 5 Dallas-Fort Worth. NBC 5 Dallas-Fort Worth, November 4, 2021.
“Groups File Lawsuit against State of Texas over Voter Suppression Bill SB1.” American Civil Liberties Union. September 3, 2021.
Texas SB1 Complaint, OCA Greater Houston et. al. v. Texas Secretary of State Jose A. Esparza et. al., Pg. 1
“Justice Department Files Lawsuit against the State of Texas to Protect Voting Rights.” The United States Department of Justice, November 4, 2021.
Relating to election integrity and security. Pg. 33, 87th Leg., 1st Special Sess., (TX., 2021).
Ibid, 44.
Ibid.
Texas SB1 Complaint, pg. 21.
Relating to election integrity and security, Pg. 17.
“2020 Census P.L. 94-171 Redistricting Data.” Texas Demographic Center.
Texas SB1 Complaint, pg. 35.
“Justice Department Files Lawsuit against the State of Texas to Protect Voting Rights.” The United States Department of Justice, November 4, 2021.
Relating to election integrity and security, Pg. 51.
“Poll Worker Webinar Training: Working with Voters with Disabilities.” Disability Rights Texas, July 23, 2021.
Relating to election integrity and security, Pg. 52.
Texas SB1 Complaint, pg. 56.
Ibid.
Relating to election integrity and security, Pg. 59.
Ibid.