Someone attending the first hearing of the Texas House Elections Committee this year would have thought this would be a quiet legislative year regarding Texas elections. The Texas Secretary of State’s office testified that they were “happy to report that Texas Elections are in good shape” and that “[t]he Elections in Texas last year were a success. … Texas had an election that was smooth and secure.”
Yet for the past six months, the Texas Legislature was consumed with baseless allegations of fraud in Texas elections, culminating in passage of Senate Bill 1 (SB1), which is among the most restrictive new voter laws passed in 2021.
How did this dynamic change so quickly? What does SB1 mean for Texas voters? And what is being done to limit the damage to Texas elections?
Arose From History of Suppression, Growing Diversity
In part, SB1 arose from Texas’s long history of voter suppression. Texas has so many voting restrictions that a landmark study found that it is harder to vote in Texas than literally every other state in the country. But SB1 also emerged from a set of more recent developments.
While it has long been rural and white voters who have held the balance of power in Texas elections, the state is becoming both more urban/suburban, and more diverse. State leaders therefore reacted with fury in 2020 when diverse urban areas such as Harris County (Houston) worked to make voting easier and safer during the pandemic, including offering 24-hour voting and “drive thru voting” (which allowed voters to cast a ballot from their car), and attempting to send vote-by-mail applications to every registered voter.
State leaders assiduously laid the groundwork in the months after the election for new restrictions on voting by repeatedly referencing a supposed “lack of confidence” in Texas’s elections—doubts that they themselves had generated by whipping up hysteria about “voter fraud.”
Infamously, Texas Attorney General Ken Paxton (R) filed a meritless lawsuit to block electors from voting for Joe Biden for president because of reckless allegations of “voter fraud,” and later spoke at the “Stop the Steal” rally on Jan. 6 shortly before that mob attacked the U.S. Capitol.
Impact on Texas Voters
SB1 doesn’t threaten all Texas voters equally. For instance, SB1 prohibits the extended early voting hours and drive thru voting programs implemented in Harris County last year—methods which were much more likely to be used by people of color than early voters as a whole.
An analysis conducted by Targetsmart and the Texas Civil Rights Project (TCRP) of the voters who used such voting methods in Harris County found that even though people of color constituted only 38% of all early voters in the county, they made up 56% of late night voters and 53% of drive thru voters.
In addition, sections in the new law regarding partisan poll watchers are ripe for abuse. Watchers have a long and dark record of intimidating voters, particularly people of color, as documented in a recent report by the Texas Civil Rights Project. Yet SB1 grants them an expansive new right to “free movement” within the polling place.
If a watcher doesn’t want to comply with a request by a poll worker to limit their movement in the interest of voter safety, the watcher can now threaten to have them prosecuted for “taking any action to obstruct the view of a watcher or distance the watcher from the activity or procedure to be observed in a manner that would make observation not reasonably effective.”
Litigation Challenging SB1
As of Oct. 8 at least six lawsuits are now fighting SB1 in court. Several civil rights groups, including TCRP, have joined together to challenge a provision requiring voters to provide an ID number (or the last four digits of their Social Security number) on their vote by mail application/ballot: If those numbers don’t correspond with information in government databases, the materials will be rejected.
But as the complaint alleges, requiring an ID number violates federal prohibitions against requiring information from voters that isn’t material to judging their qualifications to vote and federal mandates that reasonable accommodations be provided to voters with disabilities who cannot satisfy such provisions.
We also allege that SB1 unlawfully restricts who can provide assistance and what kind of assistance that person (such as a poll volunteer) can provide, such as by making it unlawful
Finally, we assert that new restrictions on “interaction[s] with one or more voters, in the physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for a specific candidate or measure,” by grassroots volunteers receiving anything that can be construed as “compensation,” unconstitutionally burdens political speech.
It will be some time before we know whether these challenges succeed. But even if they do, it is a tragedy for Texans that they must in the meantime endure this constant assault on their right to vote.
With new efforts to conduct so-called “election audits” that are little more than partisan stunts to create and spread disinformation, and continuing efforts to expand partisan control over election administration, SB1 is merely the latest chapter in voter suppression in Texas—and not the last.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
James Slattery is a senior staff attorney with the Voting Rights Program at the Texas Civil Rights Project.