SB 2, SB 220, SB 1933, HB 1243, SB 924, and SB 1039, among others, represent a concerning trend toward the criminalization of voting in Texas. Two of the bills, SB 924 and HB 1243, passed and went into effect on September 1, 2023. The bills would increase penalties for illegal voting, establish a force of state election marshals, allow for the consolidation of polling places, and enable a state takeover of county-run elections at the discretion of the Secretary of State. Some of these harmful bills target only Harris County (where Houston is located), Texas’s largest and most diverse county and home to more than 900,000 Black residents. All of these could have a disenfranchising impact on Black voters and voters of color. LDF and the Texas Election Reform Commission advocated against these dangerous bills during the 2023 legislative session.
SB 220 creates force of state election marshals who report to Texas Secretary of State and establishes new procedures for adjudicating allegations of election fraud. Texas’ state election marshals would function similar to the agents of Florida’s Office of Election Crimes and Security. Despite there being no evidence of widespread voter fraud, SB 220 would allocate millions of taxpayer dollars to a police force solely dedicated to the issue. SB 220 presents several threats and has grave potential for discrimination.
The over-policing of elections and heightened criminalization of voting could have a chilling effect on political participation and create the impression that voters could face criminal penalties for simply casting a ballot. This could create the fear that voters could be subject to criminal penalties for unintentional errors or if they unknowingly do not comply with the election code. Since they would be required to investigate all violations regardless of whether probable cause exists, partisan actors could control what issues are investigated.
This bill takes away the freedom of local county election officials to administer their own elections as they see fit and strips eligible voters of the freedom to participate in elections free from interference by the state. Under SB 220, state officials would be able to halt election proceedings for little to no reason, intimidate voters, and generally create inefficiencies in the process. The bill allows for slowing down or stopping elections for a variety of reasons, even allowing voting machines to be confiscated, without probable cause.
SB 2, like HB 1243, creates harsher penalties for illegal voting and voting-related crimes, going further toward the trend of the criminalization of voting than other bills introduced this session. SB 2 takes the class A misdemeanor of voting while ineligible, or “illegal voting,” and turns it into a second-degree felony punishable by up to 20 years in prison.
SB 2 lowers the bar drastically for criminal convictions of illegal voting, sweeping in innocent mistakes. This change makes it possible, and perhaps even likely, that people will end up in prison just for trying to do what they thought was their civic duty. SB 2 eviscerates the “mens rea” element of the offense. This refers to the criminal intent, or the mental state with which the person committed that act. Under this bill’s wording, all that’s required for a conviction is that a “person knows of a particular circumstance that makes the person not eligible to vote.” They don’t have to know they’re ineligible to vote, or even that voting while ineligible is a crime. That’s the framework SB 2 would create. And it’s a result that the Court of Criminal Appeals, just last year, called “absurd.”
SB 1039 creates a vague and poorly designed review and audit process to allow any losing candidate to request an explanation related to an election. The requests can relate to vague concepts such as “irregularities in results at a precinct or at a polling place” or “inadequacy or irregularity of documentation.” Allegations don’t need to claim that the irregularities would be sufficient enough to change the outcome of the election.
The bill would force county officials to review the allegations and provide an explanation. If unsatisfied with the review by county officials, the candidate who requested the review can request the Secretary of State conduct an “audit” of the issue. S.B. 1039 also allows Secretary of State to appoint a conservator to oversee elections in a county in response to findings from the inquiries. S.B. 1039 would reduce confidence in Texas elections and waste taxpayer dollars.
HB 1243 severely increases penalties for people convicted of voting illegally. Under HB 1243, people convicted of voting illegally could face up to 20 years in prison and enormous fines. Previously, voting illegally was a misdemeanor punishable by up to one year in prison. HB 1243 would elevate illegal voting to a second-degree felony, punishable by up to 20 years in prison.
The threat of prosecution could create intimidation and fear among voters who are concerned that an inadvertent voting error could land them in jail. Voters may stay home with risk of being subject to a state jail felony. This bill would add 1 more crime to the 99 crimes in the Texas Election Code. Texas lawmakers should be championing voting, not criminalizing it.
SB 924 would allow county commissioners courts, at the approval of County election boards, to consolidate polling locations during a general or special election for which use of county election precincts are required. Currently, a county election precinct must have at least 100 registered voters but no more than 5,000. Under SB 924, this cap would be doubled and a combined precinct under this section would be able to have up to 10,000 registered voters. This would only impact counties with a population less than 1.2 million people, which would likely impact voters who already live in rural areas and have limited access to transportation.
Consolidating polling precincts could potentially result in longer travel times to the poll and longer wait times that would likely disproportionally impact Black voters and other voters of color, as well as elderly and disabled voters.
Black and Latino voters are more likely to be reassigned a new voting location when polls are closed or consolidated, and which could be detrimental to voter turnout. Consolidating polling locations would also increase travel times and distance to the polls. Given that 1 in 20 households in Texas does not possess a personal vehicle, and more than 3.5 million Texans lack access to public transportation, reducing the number of polling places will likely disenfranchise many Texans.
SB 1933 grants the Secretary of State (SOS), a political appointee, the authority to all but take over a local elections office upon finding that there is “good cause to believe” that there is a recurring pattern of problems with election administration or voter registration in that county. The bill grants the SOS administrative oversight power over county elections including the authority to review any policies or procedures it adopts, the authorization to observe the office’s activities in person, and access to appropriate county personnel to complete their duties.
This bill is deeply problematic and gives the SOS sweeping power to undermine local control of elections and order new elections. This has serious potential for election subversion.
SB 1933 is similar to SB 1993, a bill specifically targets Harris County, Texas’ largest and most diverse county, and would enable the SOS to invalidate election results in the county. By making it easier to invalidate elections in Harris County, SB 1993 creates a disproportionate risk that the ballots of voters of color will not be counted.
SB 1933 has been amended to include the following changes:
