How Texas Could Improve Its Election Bill

Texas State Capitol in Austin. (SusanRisdon/Getty Images)

Arguments over lawmakers revising state election laws have sunk into familiar ruts, which have played out again in Texas. Republicans try to shore up the real and perceived security of American elections. Many of their proposals are reasonable and modest; some include pandering to stolen-election conspiracists, and some include sharp-elbowed mischief, but most of the worst ideas shake out during the legislative process. That has happened in Texas with proposals to open polls at 1 p.m. on Sundays; Republicans now say they will move the time back to 11 a.m. to avoid interfering with black churches and their “Souls to the Polls” drives.

Then, Democrats respond with lies, torrents of hyperbole, efforts to shut down the state, and radical proposals of their own in Congress to strip elected state governments of power over election law. The Texas law, which was blocked at the end of May but will be reconsidered in a special session of the legislature this summer, featured an additional irony: Democrats, who have complained long and loud about the impropriety of the minority in the U.S. Senate using the filibuster to block legislation, used a walkout of their own legislative minority to block the legislation.

Much of the controversy in Texas, as elsewhere, revolves around partial rollbacks of “emergency” voting procedures rushed through during the pandemic, some of them by executive fiat. Democrats take a Brezhnev Doctrine approach: Any expansion of any kind (hours, locations, methods of balloting) must be permanent or any rollback will be deemed “voter suppression” — no matter how recently the expansion was created, no matter what it costs, no matter its impact on the security of the ballot or the speed and certainty of vote counts.

This, too, is an opportunistic stance rather than a principled one, as elected Democrats themselves have signed on to adjustments that limited voting expansions in recent years. Stacey Abrams even wrote in her book about sponsoring legislation that reduced the number of days of early voting in Georgia.

The Texas overhaul is sprawling; the conference version agreed to by the Texas house and senate runs 67 pages, the conference report over 200. It drives at more statewide uniformity after a year in which local officials pushed the envelope of their authority. Its main features include closely regulating the rights of poll-watchers and the conditions under which they can be excluded from polls; cracking down on paid “ballot harvesting”; and restrictions on local officials’ sending out mail-in ballot applications to people who do not request them.

All that said, good election laws should follow some basic principles that Republicans in Texas and elsewhere have not always respected, and we encourage the Texas legislature to consider these carefully in passing the final bill. First, election laws should aim to increase speed, transparency, and objectivity in vote-counting. The Texas legislation creates more opportunities to challenge whether signatures on ballots and registrations match, and follows the model of Georgia in using objective indicia (for mail-in ballots, writing the voter’s driver’s license number or another identifier) to avoid relying on signature comparisons. While signature verification is a safeguard, it is also one that is prone to subjectivity and delay. We think that Georgia has the better plan in treating this as dispositive, but Texas takes a step in the right direction by treating it as a rebuttable presumption.

Second, election laws should aim to provide clear, decisive results on Election Night in as many races as possible, and to discourage losing candidates from routine scorched-earth post-election challenges. It was the great boast of Texas and Florida in 2020 that they resolved nearly all of their important races by midnight on Election Night, while states such as California and New York were counting votes for weeks. Democrats have pushed constantly for measures to prevent the voter rolls from being finalized by Election Day, and to keep ballots coming in past Election Day; these are recipes for protracting post-election uncertainty.

States should not lower the bar for challenging outcomes, and they should not empower elected officials such as state legislatures to overturn election results. The Texas bill allows a court to overturn an election without proof that illegal votes actually changed the outcome. It instead provides, “If the number of votes illegally cast in the election is equal to or greater than the number of votes necessary to change the outcome of an election, the court may declare the election void without attempting to determine how individual voters voted.” That standard (already part of Texas law) is likely to spawn more mischief than it will solve; the legislature should consider tightening it instead. A positive step in the bill is directing Texas courts to prioritize election cases over everything but death-penalty cases.

Third, legislatures should refrain from overcriminalization. While the integrity of the ballot is a serious issue that in some cases must be dealt with by the criminal process, many of the new election laws are too expansive in creating batteries of new felonies that could be misdemeanors, and misdemeanors that could be civil offenses.

The debate over these sorts of provisions is part of the normal give-and-take of legislation, not a nefarious attack on democracy itself. The Texas process wasn’t helped by its undue rush at the end. Now the legislature has the chance to get it right.

Editor’s note: This editorial has been revised and corrected to clarify that (1) the standard for illegal votes was already used in Texas law, and did not water down an existing rule, and (2) the Texas bill would require both mail-in ballot applications and ballots to use objective individual identifiers such as drivers license numbers.


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