86th Session Election Integrity Legislative Review
This session lawmakers had an opportunity to substantially move the ball on the issue of election integrity. Unfortunately, this did not happen and our analysis suggests the fault for this inaction rests largely with the House.
The Senate moved major bills during the session and with time to spare. Bills removing non-citizens from voter rolls, providing verifiable paper ballot backups, increasing the ability of law enforcement to pursue fraud and measures aimed at curbing in person manipulation of voters passed the Senate. The House is where these bills went to die.
In fact, cutting against the narrative that House leadership allowed bills from across the political spectrum to be heard in committee and receive floor votes, all meaningful election integrity bills were effectively blocked from public debate by all members of the House. Bills that got close to the floor were procedurally bull guarded, redirected to a conference committee where they were either gutted of needed reforms or killed.
During the session, after key reforms were procedurally nixed in the House after missing deadlines and lesser bills were similar being killed we wrote, it’s not acceptable for bills crucial to accurate administration of elections to languish. Action in governing is transparency, and this session has been short on this on the topic of election integrity.
There were hundreds of bills filed related to election law and Direct Action Texas tracked all of them. Our review of the session will detail the most impactful of these measures and some of the antics surrounding their voyage through the legislative process.
While we tracked hundreds of bills, 47 pieces of priority legislation were identified from the House and the Senate. Of these bills, 4.7% were passed out of both bodies and have become law or are waiting to be signed by the governor.
Though the movement on election integrity was paltry, there was movement in the process, a good benchmark of interest in the issue overall and something on which to build during the interim and next legislative session. Bad bills were universally stymied in the Senate and the few that were oddly prioritized by Chairman Stephanie Klick (R-Fort Worth) died before becoming law.
The following review is broken into three sections. Major bills are covered first with a brief play by play followed by groupings of House and Senate bills respectively. With the exception of the first section, bill numbering dictates the order in which bills are presented.
SB 9 – Arguably the most important and comprehensive election integrity bill of the session was SB 9. Passed by the Senate but killed by the House, SB 9 was an omnibus election bill authored by Senator Bryan Hughes (R-Mineola) that would have accomplished several things including:
- Restricted illegal assistance
- Increased both criminal and civil penalties for breaking election law
- Set parameters on countywide polling
- Strengthened laws regulating poll watchers and signature verification committees
- Provided for automatic recounts and risk-limiting audits
- Cleared a path for participation in an interstate cross-check program
- Implemented paper ballot backups
The bill passed out of the Senate on April 15 and was received by the House the following day, ample time to be taken up and passed. Instead of acting quickly, two weeks passed before the bill was referred to the Elections Committee on April 29 and another two weeks passed before the bill was finally heard in the House Elections Committee.
When the committee hearing was held on May 15 major portions of SB 9 were scrapped, including paper ballot backups and affirmation of a medical condition when casting a ballot by mail. Stripping paper ballot backups from the bill was necessary to move the bill, as Chair Klick lacked sufficient votes to move the bill given irrational opposition to paper ballot backups by committee member Valoree Swanson (R-Spring).
Speaker Dennis Bonnen (R-Angleton) and Chair Klick’s failure to call the bill in a timely fashion provided an opportunity for substantial opposition to be mustered. The delay also set the bill up to fail. Unhinged calls of suppression were ratcheted up and the eventual hearing for SB 9 was a spectacle that Klick failed to manage. At one point during the hearing, a Republican was heckled by liberals in the room while Klick sat idly by. It was disgusting.
Further complicating matters, conservative activists were persuaded not to show up and testify for the bill. This coupled with mismanagement of the hearing played well for the left’s optics. Then, instead of calling an immediate vote following the hearing, as had been planned and was needed due to the aforementioned feet dragging, Klick gaveled out.
The following morning, Klick called for a committee meeting to move legislation, including SB 9 out of committee. But there was a problem, despite the committee substitute removing paper ballot backups, Swanson no-showed the morning committee meeting, reportedly due to a cough and tummy ache. Swanson showed up later in the day after her absence was criticized as an SB 9 killer. While a committee hearing could have been called it was not.
These delays pushed the SB 9 closer to the brink.
On May 17 the committee substituted bill was passed out of the Elections Committee but by this point, it was as good as dead. A floor report was printed the following day on the deadline to do so and the bill was referred to the Calendar Committee where it finally died.
During the session, Governor Greg Abbott took to the floor of the House and Senate to push legislation of lesser import to the preservation of our state’s governance. While the House clearly demonstrated it’s disinterest in tackling needed reform, the governor should have been more active in pushing for election bills.
SB 903 – A bill by Sen. Hughes, SB 903 would have in some places allowed and in others required the secretary of state, local officials, and other agencies to share information in an effort to more accurately maintain voter rolls. Changes brought on by the bill were aimed at freeing up officials, who are either not allowed or not required to share and process information.
Like the majority of worthwhile election bills, SB 903 made its way from the Senate to the House in mid-April and was killed without receiving a hearing after being referred to the House Elections Committee.
After the bill was killed in the House, it was added to HB 2911 (covered below). Chair Klick did not concur with amendments made to her bill and had them stripped out in conference committee. The conference committee was packed with Democrats, ensuring this negative result.
HB 2909 – An omnibus election bill authored by Chair Klick, HB 2909 passed out of the House without opposition or fanfare, with support of all Democrat and Republican members of the panel. As an omnibus bill, it changed, updated, or expanded several different aspects of Texas’ election law. The bill was amended on the Senate floor by Senator Hughes to include paper ballot backups.
There were two other amendments added to the bill in the Senate, both by Democrats. Nathan Johnson (D-Dallas) amended HB 2909 to, among other things, bar a voter’s employer from assisting as an interpreter, something that has the real potential to cause intimidation. The other amendment was brought by Senator Judith Zaffirini (D-Laredo) and would have added language to the bill regulating the reporting of election results and signature review procedures.
After passing out of the Senate with near unanimous support, only two Republican lawmakers cast dissenting votes, HB 2909 to have the best opportunity to pass needed to be accepted as amended by Chair Klick and put to a vote of the entire body. Direct Action Texas and other organizations called on Klick to concur with the Senate amendments and allow the House to vote on the measure.
Instead of concurring, Klick placated lobbyists by taking the bill to a conference committee to kill it. Protestations by Klick that this was and is not the case should be ignored. SB 2909 lobbyist talking points were debunked before the bill’s death but Klick insisted on repeating several of them on the floor of the House.
Following Klick’s intent to not concur, a point of order was offered by Celia Israel (D-Austin). This maneuver was launched to secure placement on the conference committee for herself and a fellow Democrat. The point of order was withdrawn. Even if given the benefit of the doubt, that a point of order would have been ruled germane (arguably) torpedoing the bill, any non-germane amendments from the Senate could have been quickly stripped from the bill and then passed by the body.
Spoiler alert, this didn’t happen, once again putting the lie to a contrived excuse for inaction.
HB 2911 – A bill by Chair Klick, HB 2911 deals with voter registration. As with most of the legislation authored and ushered through the House by Rep. Klick, HB 2911 is a milquetoast affair, piddling on the margins. That is until the bill made its way to the Senate.
Like HB 2909, this bill was approved in the Texas House by all members of the Election Committee. The Senate amended the bill to accomplish needed reforms, namely stopping mass registration of voters at commercial PO Box stores (think UPS) and amending SB 903 to the measure which dealt with voter registration.
Unlike 2909, opposition to amendments of HB 2911 appears to have been stronger. Still, amendments to the bill, two of them one each from Senator Hughes and Paul Bettencourt (R Houston), dealt with voter registration, a subject of the bill from its inception.
Comparing the handling of HB 2911 and 2909 provides a nice contrast. Unlike 2909, House conferees on 2911 included three Democrats to two Republicans. Amendments to the bill by the Senate were removed including the ability of Democrats to illegally pack voters at non-residential addresses, like UPS Stores.
Over the course of the session, Klick insisted that House bills lacking real teeth to deal with shortcomings in our election administration would be counteracted by stronger bills coming from the Senate. When those bills came over to the House, Klick killed them by 1) not giving them hearings 2) giving them hearings too late for them to move and 3) stripping useful language from the Senate that was amended to weak House bills.
SB 205 – A bill by Senator Charles Perry (R-Lubbock), SB 205 would have afforded the Attorney General greater access to investigate. A Senate Committee sub by Senator Pat Fallon (R-Prosper) added language to include that the SOS shall quarterly notify if a person is excused from a jury because he/she is not a resident of the county. It also adds a third section making 62.114 mirror 62.113.
As with other bills aimed at curbing the illegal votes of non-citizens in Texas elections, SB 205 was killed in the Texas House. The bill passed out of the Senate on April 17 and seven days later on April 24 was referred to the House Elections committee. A vote along party lines moved the bill to the Calendars Committee on May 19 where the bill died.
There were several other measures aimed at ensuring Texas voter rolls do not include non-citizens. None of these measures gained traction in the House, with most failing to receive a hearing in the House Elections Committee. Bills such as HB 4331 by Representative Matt Schaefer (R-Tyler) HB 4403 by Rep. Cain, or HBs 4538 and 4540 by Rep. Swanson. None of these measures dealing with non-citizens voting in Texas elections were given a hearing by Chair Klick.
SB 1190 – A bill by Senator Bettencourt, SB 1190 worked to clarify the ways in which a person establishes residency. The bill specifically forbade registration addresses from being commercial post office boxes, unless certain criteria were met. An amendment to the bill allowed college students living on campus to use campus PO Box.
In 2018, thousands of voters were known to be registered to vote at business addresses, including commercial PO Box stores and United States Post Offices. This is a violation of the law, since a voter must be tied to a residence but there is currently no way to handle correcting or removing these voters from the rolls. Senator Bettencourt in November 2018 asked the Secretary of State to intervene.
SB 1190 was passed out of the Senate on May 1, received by the House the next day and referred to the House Elections Committee on May 6. The bill was never given a hearing.
When it was clear that this bill would not be given a hearing in the House, key provisions that would have barred voter registrations at commercial PO Box stores were amended to HB 2911 by Senator Bettencourt. This language was stripped from the bill in a conference committee.
HB 362 – A bill by Rep. Israel, HB 362 would have created a fund to assist local governments with the purchasing of voting system equipment. There was a companion bill, authored by Senator Bob Hall (R-Edgewood) SB 2353.
HB 362 passed out of the House but did not receive a hearing in the Senate. Senator Hall’s SB 2353 died in Calendars in the Senate. Before being heard in the House Elections Committee, HB 362 was amended to apply to purchases of systems that can produce a paper ballot backup.
Thanks to the media created hysteria in the wake of the 2016 election, Democrats fearful of foreign interference, have begun advocating for increased verification of cast votes. Prior to the election, Republican election observers and academics alike have been skeptical of voting machines that do not produce a verifiable record of cast votes, making recounting elections impossible. Although for different reasons, both sides of the aisle want paper ballot backups.
HB 362 was a good litmus test for the House on the topic of paper ballot backups and as such is referenced in the analysis of other bills. In committee, the only member to vote against the bill as amended was Rep Swanson.
HB 377 – A bill by Representatives Mike Lang (R-Granbury) and Cain to close primary elections was not heard until after a key deadline, automatically moving the bill to the trash heap in the 2019 session.
At various times over the past several election cycles, votes in both parties have been called on to influence the overall governance of our state by voting for either a more conservative or liberal candidate in the opposing party’s primary. In Texas, this is sort of manipulation is more likely to take the shape of would be Democrat voters crossing over to vote in Republican primaries for a more liberal candidate. In 2016, Democrats in the Texas education community have mobilized to influence Republican primary elections in recent years to unknown effect.
HB 378 – A bill by Reps. Lang, Cain, and Cole Hefner (R-Mt. Pleasant), HB 378 would require the Secretary of State to verify the citizenship of registered voters not registered by the Department of Public Safety. There was a companion bill in the Senate, SB 482 by Sen. Fallon.
Non-citizens are currently voting in unknown numbers in Texas elections, a practice being defended by many on the left. In January, former Secretary of State David Whitley launched an effort to review voter rolls and remove non-citizens. This necessary activity was demonized by the left (including a subservient media) sending irrationally skittish Republicans in Austin into hiding.
HB 378 was never heard in committee.
HB 1421 – A bill by Rep. Israel, HB 1421 mandates that counties take part in a regime of cybersecurity analysis being administered by a vendor on behalf of the secretary of state’s office. This bill, a corporate handout dressed up as needed security, was fast-tracked by Chair Klick.
Following the 2016 election and to this day, despite a lack of credible evidence, Democrats have suggested that election systems are vulnerable to Russian hackers. In truth, there is no evidence that an election result was impacted by hackers.
The only incursion that’s been reported to date is infiltration of an online voter registration system. Ironically, while wringing their hands over vulnerability, Democrats are working to expand the only type of system that was breached by hackers in 2016.
Direct Action Texas opposed the measure based on it being an unneeded corporate subsidy and to protect against the expansion of cybersecurity programs witnessed in other states. In California and New York cybersecurity programs have been used to expand the power of political regulators, including the regulation of speech. In California, cybersecurity includes monitoring social media to “combat misinformation.”
Funds appropriated to this program would have been better spent on updating election equipment, a fabricated source of pushback on bills highlighted throughout our analysis.
Representatives Mayes Middleton (R-Wallisville) and Swanson voted in opposition to the measure in the House Elections Committee.
HB 1421 was signed into law by Governor Abbott.
HB 433 – A bill by Representative Matt Schaffer (R-Tyer), HB 4331 would require voter registrars to compare voter applications with the secretary of state and Department of Public Safety records for citizenship. The bill required registrars to send notice to a voter when the registrar is notified that voter may not be a citizen.
HB 4331 was never heard in committee.
HB 3422 – A bill by Representative Scott Sanford (R-McKinney), would have required that legal residents and legal aliens have a notation on their ID saying it cannot be used for voting purposes.
HB 3422 did not receive a hearing in the Texas House.
HB 1107 – A bill by Valoree Swanson requiring a wet signature for a ballot to be voted by mail did not receive a hearing in the House. There was no companion bill in the Senate. Wet signatures are necessary to ensure that ballots have not been harvested and signatures forged.
HB 1107 was never heard in committee.
HB 1406 – A bill by Representative Jay Dean (R-Longview), HB 1406 would have required voter registrars who received notice that the voter’s residence is different from records, to send a confirmation notice. This would expand upon current requirements that the registrar can act if there is “reason to believe” a voter is no longer residing at the same address.
This is one of two bills from Rep. Dean dealing with residency, the second was HB 1818, which was not given a hearing and died.
As with other important measures, HB 1406 was not heard in a timely manner and after it’s late hearing was left pending in committee and died.
HB 1459 – A bill by Representative Jessica Gonzalez (D-Dallas), HB 1459 provided for the nomination and appointment of an alternate election judge and appointment of a vice-chair to the signature verification committee. The bill, which deals with the minutiae of election administration is an example of a bad bill prioritized by Chair Klick.
The bill as written set up a scenario on the signature verification committee in which there could be a tie. As originally written, it was unclear what the result of a tie would be in the event of a contested signature. A committee substitute cleared that up, a tie would go to the voter.
Rep. Cain questioning Gonzalez during the layout of her bill established the intent of the measure. The bill was meant to lower the number of ballots excluded by signature verification committees. After reviewing thousands of signatures from around the state, it’s the expert opinion of Direct Action Texas staff that more signatures, not fewer merit review and disqualification.
HB 1459 was advanced out of committee by Democrats on the panel with aid from Republicans Chair Klick and Representative Dustin Burrows (R-Lubbock). The bill died in the Calendar Committee.
HB 1817 – A bill by Rep. Dean, HB 1817 would have increased penalties if an assistant does not fill out the assistant portion of carrier envelope. The bill would have also added assistant limitations and required disclosure about how the assistant assisted the voter.
This bill was never heard in committee.
HB 1819 – A bill by Rep. Dean, HB 1819 would have specified the meaning of disability for eligibility to vote by mail on both ballot and application.
Currently, Texans capable of going to the polls to vote are requesting and voting by mail based on disability waivers granted by the secretary of state. This abuse of balloting by mail increases the likelihood of fraud in an election and HB 1819 would have hampered this practice and allowed for greater scrutiny of the use of balloting by mail.
After receiving a hearing in early April, HB 1819 was finally passed out of the House on May 10. The bill was referred to the Senate State Affairs committee but did not receive a hearing.
HB 2898 – A bill by Art Fierro (D-El Paso), HB 2898 would have expanded the use of curbside voting by expanding the use to all parents and guardians with children. Curbside voting is currently reserved for handicapped individuals unable to enter a polling place, a manageable task given the size of the group.
Extending curbside voting to all parents or guardians or in reality anyone with a kid in the car would be an absolute nightmare for election administration, especially in 2020 when Texas will be holding an election without the expediency of straight-ticket voting for the first time in years.
HB 2898 was voted out of the House Elections Committee by all Democrat members and with needed aid from Chair Klick and Rep. Burrows. The bill passed out of the House with a vote of 90 Yeas, 52 Nays. Thankfully, the bill was dead on arrival in the Senate.
HB 3578 – A bill by Chair Klick, HB 3578 would have added needed language to state law regulating the removal of individuals finally convicted of a felony. The mechanics, at the time of conviction, the court would order the removal from voter rolls and send final judgments to the secretary of state.
This bill passed out of the House in early May but was not taken up by the Senate before the end of the session. In February, WFAA out of Dallas reported on findings that felon voters participated in the 2018 general election en masse in several DFW area counties. Legislation tightening up the removal and upkeep of voter rolls as it pertains to felons disqualified from voting is still needed.
HB 3682 – A bill by Rep. Middleton, HB 3682 would have raised penalties for election fraud from a Class A Misdemeanor to a state jail felony. Election administrators testifying during the session attested to the reality of voter fraud and the need for deterrence. Current penalties for committing election fraud do not outweigh the benefits.
HB 3682 was never heard in committee.
SB 901 – A bill by Sen. Hughes co-authored by Senators Brandon Creighton (R-Conroe) and Hall, SB 901 would increase the criminal penalty for voter fraud from a Class A Misdemeanor to a state jail felony. The bill also cleaned up the “two or more” signature language. It would have separated the mail-in ballots from in-person early voting ballots as well which would have helped in fraud detection.
SB 901 passed out of the Senate with a batch of good election integrity bills and like many of those bills was never heard in the House Elections Committee.
SB 902 – A bill by Senator Hughes, SB 902 requires all election records to be available to the public no later than 15 days after the election and for a cost of no more than $50. The bill also requires that vote totals be made available the day after the election, and early voting rosters by 11 am the following day, each day after early voting takes place. Additionally, the bill requires the countdown for an election contest (30 days or less depending on the race) cannot begin until the election data is made available.
SB 902 was signed into law by Governor Abbott and will be effective September 1, 2019.
SB 966 – A bill by Senator Bettencourt, co-authored by Senator Creighton, SB 966 would, in counties with a population exceeding 100,000 or more, limit moving polling places to once and then only after half of the early voting has been concluded.
Currently, polling locations can move during early voting causing confusion among potential voters and complicating logistics for election administrators.
A companion measure was authored in the House by Representative Swanson, HB 4535. That bill was never heard by the House Elections Committee. Despite being referred to the House on April 24 and receiving a hearing on May 6, SB 966 was left pending in committee and no further action was taken.
SB 1568 – A bill by Sen. Fallon, SB 1568 would allow the attorney general’s office to seek civil penalties for organized election fraud activity. A committee substitute added the ability of the AG to seek “injunctive relief” to keep activity from recurring.
The bill died in the Calendars Committee after following a similar path to SB 205.
SB 1569 – A bill by Sen. Fallon, SB 1569 would have curbed the usage of school funds for political advertising. HB 1569 extended the restrictions to individual members of the board of trustees, as well as employees and contractors. It added specific language to the code that would limit taxpayer-funded communications, including social media and emails, that would promote or oppose candidates and/or measures.
Trustees, school district employees, and contractors should not be able to use school funds and resources to influence elections from which they would directly benefit.
HB 1569 was substituted in committee and amended on the floor of the Senate, and arrived in the House as a great bill for taxpayers. It did not receive a hearing in the Elections Committee for almost a month, and it was left pending in that committee where it finally died.
SB 1638 – A bill by Sen. Zaffirini, SB 1638 would have required mail-in votes to be separated from early in-person voting totals and allowed the use of signatures to see if a voter voted more than once. This bill died in the House Calendars Committee after being passed out of the Elections Committee on May 14.
*This survey of the 2019 legislative session is part one of two. Our second installment will examine the actors who impacted election integrity for better or worse during the session.