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Texas Matters: SB9, Election Integrity And Voter Rights

The next time Texans vote in a stateside election will be Super Tuesday, on March 3, 2020. Ten states are expected to hold their primaries and caucuses on Super Tuesday, including three big ones: Texas, California and Virginia. There will be a lot on the line for the national and local primary races in Texas, and voting could look very different on that day ... if Senate Bill 9 is passed.

SB 9 is also known as the Omnibus Elections Integrity Bill. It's sponsored by Republican State Sen. Bryan Hughes. And in there is a long list of proposed fixes to the way elections are held and ballots are counted in Texas.

Some of the big changes would include a requirement for counties to have a paper-vote receipt trail.

Critics of the bill say it does nothing to address the biggest problem with voting in Texas. They say it’s too difficult to register and vote. They complain SB9 would make it even harder to vote.

This week, the State Senate Committee on State Affairs heard testimony from supporters of and opponents to SB9.

One of the major election rigging problems that the bill seeks to fix is a problem with vote harvesters. The 229th District Attorney of Texas, Omar Escobar, who oversees the border region, including Starr County, testified that rigging elections there is a business.

"Elderly people, many of whom receive a food bank, uh, distributions for approach by workers and being told, you know, 'hey, here's the application for a ballot by mail. You need to sign this thing. And as soon as you get the ballot, we're going to come in and we're going to, we're going to prepare it for you.' Uh, so the practice as we have seen it was that they'd go in, and of course this as soon as that valid came mandate swoop in and help them sort of a vote the right way," Escobar said.

Escobar said voters who were handled by campaign workers have little awareness that their mail in ballots are being altered and that they're being victimized.

"Our investigation showed that we had one person, just one person assist 230 voters and an application for a ballot by mail. Just one. You had another one that assisted a hundred people, another one that assisted 70 people, another one that has that assisted 50 people. Now this is just the, this is the application of a ballot by mail on this other side. On the in person voting, you have people who are going to assist and of course the assistant is watching this voter vote and sometimes marking the ballot for them,"  said Escobar.

Escobar would like to see tougher criminal penalties for making a false statement on a voter registration application and make illegally assisting voters. A state jail. Felony Escobar would also like to see local law enforcement have emergency election enforcement authority to have rapid on the ground response to election law violations.

"And if you know, and you can show that that is a political worker, is, is knowingly engaging in election fraud to go in and get a TRO, a temporary restraining order against this person if they can show it in court," he said.

However, critics point out that this would open the door to other abuses of the style that may Duvall county infamous, which is also a county that Escobar overseas.

"He randomly selected applications and every single one of them was illegitimate 100%," said Robert Caples, the commander of the Star County special crimes unit. He agreed with Escobar saying the vote stealing practice is rampant.

"Every single person that I spoke to had no idea that their mail-in ballot application had been marked with the disability. One of them was a Rodeo cowboy. He had zero disabilities and other one was a firefighter, a jailer nurse. We also found that, uh, there were being told to let the, uh, campaign workers know to come back when the melon ballots were in the actual balance and they were coming back and picking them up. They were taken off with them," said Caples.

The challenge for fixing vote harvesting, we'll be tightening the voter assistance provision without making it harder or impossible for those who are truly disabled from voting. Jeff Miller of disability rights, Texas opposes the bill

"The Americans with disabilities act. has provisions around access to the polls.  We believe that there needs to be some language and some of the sections that specifically referenced those rights so that people don't lose the visibility to vote independently because it's so important for the people that we represent," said Miller.

And while professional vote harvesting is an election integrity issue at the county level in pockets of Texas state wide, there aren't significant vulnerabilities to the entire voting system from hackers and foreign cyber attacks testified Anthony Schaefer, who is an expert on cyber warfare with the London Center for Policy Research Schaffer said just because an electronic voting machine isn't connected to the internet doesn't mean it's protected from hackers.

"I'm here to warn Texans that the paperless direct recording electronic voting machines, no as dres are open targets for foreign interference in our elections, whether it be China, Russia, Iran, North Korea, or any other nation seeking to undermine the integrity of our elections. Texas is one of only 13 states that still use dres and is my understanding that they're using these dres and over 140 counties," said Schaffer.

Schaffer said a paper ballot backup system that can be recounted and audited is needed. This is the standard that 36 states already have in place, but Lara Pressley, who is a Republican party activist and an election integrity advocate, who claims there was widespread illegal voting happening in Texas, says more needs to be done.

"I've trained about 30 different counties around the state on Central County watchers and we've seen some very concerning things all over the state. Okay," said Pressley.

Pressley said more authority and autonomy is needed to be given to party sponsored election watchers. She wants them to be able to directly witness and video record the vote counting process.

"So we have observed very concerning things all over this state. Dallas County, Dallas County, San Antonio will not let watch her as in they will not let them observe. Uh, Dallas County has it escorted watchers out when stuff is going on according to the audit logs. This is a big issue.," said Pressley.

If SB nine is passed into law, it would change many aspects of voting in Texas, including increasing the criminal penalties for anyone who breaks election laws. Critics say this would create a system or a simple mistake on a voter registration form, a criminal act with the possibility of significant jail time. However, Johnathan White of the Attorney General's office testified that law enforcement's response would hinge on detecting the intent of the offense.

"For the offenses in this bill. It's, it's in line not only with other election code offenses, which are similar for false statements, false information given, uh, in order to perpetuate some type of fraud on the system, whether it would be for a mail in ballot application fraud or the fraud involved with the false statement on a reasonable, uh, impediment Affidavit, state jail, felony level matches on all of those offenses as well as penal code offenses for similar types of, of crimes involving false material statements. The fraud or the fraudulent statements must be made with the intent that, that uh, with the knowledge, the, of the falsity of those statements that with the intent that they be used to produce a ballot fraudulently or whatever the case may be, said White.

However, critics point to the prosecution of Crystal Mason. Mason illegally voted in 2016 by accident. She says she is now serving a five year prison sentence. Fatima Menendez and attorney with the Mexican American legal defense and Educational Fund testified against the bill because she says it's unconstitutionally vague.

"The first amendment permits certain electioneering activities like standing outside of a polling place, holding up a sign, handing out campaign cards and asking voters to support a candidate because he's constitutionally protected. Activities may cause voters to have to walk around an individual who was electioneering as benigns reliance on broad terms such as impede and hinder render these provisions unconstitutional, said Menendez .

MALDEF isn't the only civil rights that is expressing deep concern about sp. Nine, the Texas civil rights project calls the bill a dangerous new assault on voting rights in Texas. James Slattery is the senior staff attorney at the Texas Civil Rights Project.

SB9 is a list of rather complex changes to election law is that in general would make it harder for people to vote. Uh, in particular people who are elderly, disabled, uh, and non English speaking, uh, citizens. Basically, uh, the changes fall into three different categories. One is that it would boost a campaign of selective criminal prosecutions against innocent voters who make good faith mistakes in the voting process. Um, for instance, you and people listening may know or may have heard of a woman named Crystal Mason in Fort Worth who was last year sentence to five years in prison because she tried to cast a vote in 2016 believing in good faith that she was eligible to vote. But because of where she was in her post conviction process from a prior felony conviction could not actually vote. And for that mistake, she was sentenced to five years in prison. Uh, this bill would boost that already ongoing campaign by eliminating the state's requirement in many cases of proving that the voter knowingly was making a mistake and voting and basically could send them to jail for simply, you know, filling out a form wrong or going to the polls when they didn't know they didn't have.

Um, and it's not the only change in that regard. It would also boost criminal penalties for other good faith mistakes that voters tend to make a in the voting process, raising those offenses from misdemeanors to felony convictions. Um, another set of changes would essentially, as I said, make it harder for people who need assistance to vote by imposing, um, new form requirements on both, uh, them when they vote and when people provide them with assistance or even drive them to the polls. And then the last big set of changes, uh, what essentially loosens safe guards on voters, private data in particular their social security numbers and uh, their voter registration information so that way more government officials in the state and elsewhere would have access to their private data in order to conduct more purges like the one we've recently seen, uh, by David Whitley here in the states. So it's, it's a big complex bill where the changes don't fit neatly into one category, but the overall theme is that they would make voting a lot harder and frankly, a lot scarier in the stage that they were enacted.

DMD:  The proponents of this bill SB nine say these measures are needed in order to protect elections in Texas.

When they say that they tend to focus on the last bit of the bill, which has to do with um, creating a paper backup record or, uh, elections. So that way you're not just relying on machines they can be hacked or tampered with. And that may or may not be true of that portion of the bill, but that's only one article out of five. It's only one fifth of the entire bill is that portion. The other four fifths would impose unnecessary and unreasonable and new restrictions that may target a tiny, tiny population of actual problems with elections. But in doing so, unreasonably restrict voting for thousands or tens of thousands of other people.

DMD: Crystal Mason was back in the news recently as a comparison to Paul Manafort when he was a given less than four years in prison for some of his money laundering activities. And then Crystal Mason, they said, well, she got five years for her single act of voting by mistake, and then Paul Manafort got less than four. Uh, what do you think about that comparison?

I think people are right to be skeptical that the government here in Texas would be able to handle these expanded prosecutorial powers. Um, well given that it's not just a hypothetical concern, but as you noted, we have a, at least one case Crystal Mason where, uh, a person made a good faith mistake and is going to serve multiple years in jail. But then, you know, you have other people who commit more serious offenses who seemed to get off. Uh, for instance, we noted in um, uh, the letter that we sent to the legislature on this, that there are instances of people actually knowingly forging signatures to get on the ballot as a candidate here in Texas. And they got no jail time. So the fact that we already have cases of voters, disproportionately, some voters disproportionately feeling punishment while others are not just underscores how, uh, how troubling these expansion of powers would be.

DMD: So there are candidates who commit fraud, forge signatures, do all sorts of shenanigans in order to get on the ballot. That's not, that's not as big of a crime as if someone accidentally voted.

That is how the state has been treating it. And so to give the state even more power now to punish accidents and good faith mistakes is really alarming. Like they haven't earned our trust, uh, to, to do that sort of thing.

DMD Another provision in SB9 would allow law enforcement to break the law in order to enforce sp nine explained that?

Well, it's almost an explicable, uh, actually night consider at one of the more sinister provisions of the bill. Quite honestly, it would grants law enforcement immunity to commit election related crimes, supposedly during the investigation and prosecution of election related crimes. I think it's unusual to grant law enforcement immunity to commit crimes at any time, but the only explanation that we can see for this is to enable the government to conduct undercover sting operations with civic engagement groups, political campaigns, uh, where were they like, um, and to make sure that those officials are protected by granting them this formal, uh, immunity. Uh, clearly, you know, election law should not be broken and violations of election law should be investigated and prosecuted, but to actually open the door for the government to plant spines or investigators in a civil society groups or even on political campaigns raises the potential risk of such abuse that I find it hard to believe we would tolerate that in a free society

DMD: Including that provision in the bill. Does that signal to you that there are forces in Texas that are really, really going to be going hard at people who do voter registration campaigns and basically there will be a secret police out there looking to jump on any sort of infraction?

The universe of potential scenarios this opens up is so vast and alarming that it's hard to know what will come out of it, but I would say that before we grant the government such power, this provision should have been brought into the light of day and debated openly by the people that are proposing it. Instead of sneaking it in in a one paragraph or two paragraphs, provision in a bill and trying to sneak it through committee and sneak it through the legislature before people even knew about it.

DMD: When people go to vote, typically there might be a table set up on the side ready to explain things to people. Um, that would be, um, not allowed anymore. That would have to go away. There would be a impeding the sidewalk. What's, what's that about?

That is very, very strange and um, and, and it's so strange and unusual that it's hard to know how it will be used, but it's potential for abuse is, is quickly apparent. So basically this creates a very vaguely worded offense of impeding a walkway essentially into a polling place up to a thousand feet from the polling place. While that may sound okay when you first hear of it and consider that in that space, there are nonpartisan people trying to help voters votes. There are election years, people who volunteer with a political campaign for exercising their first amendment rights in that space. And there's also just people living their lives. Um, I think someone at the committee hearing the other day on this mentioned that, you know, a kid might have a lemonade stand in that area. It's not because there's an election going on, but because they're just normally in that space and it would authorize law enforcement to, uh, to arrest people who are either exercising their first amendment right, helping people vote, or just being present in that area under a very vaguely word events. And you can see how it could be perverted by, say, a majority political party in that area to have their opponents arrested. It could be unintentionally misused by say, an overeager election official who thinks someone is an acting appropriately 500 feet from a polling place and sick law enforcement on them. It really is. Both is vagueness again, opens it up to abuse that might not be apparent when you first hear about it.

DMD:  2020 is going to be a big election year in Texas. Some are saying this could be the year when Texas becomes purple. Uh, that there are some candidates out there that could excite the electorate and bring people to the polls that don't typically vote and, uh, we could see a sea change in the state. Uh, and this is something that's been a long time coming and they think this could be the tipping point with the changing demographics in the state. We could look at the, the vote recent voting purges that you mentioned from the secretary of state, David Whitley, and also these types of laws that are being proposed in the legislature. Do you think that this is a, the motivation, but the intent behind these types of activities are to make it more difficult for certain populations in Texas to vote as a, as a way to hold back the tide?

It's hard for me to speculate on the motives of the drafters of the bill, but I will say number one it's likely effect is in fact to make it harder for people to vote. In particular the elderly, the disabled non English speakers. Um, I would also say that what we saw in 2018 we saw voter turnout here in Texas and across the country, unlike we've seen in decades, we saw people renewably engaged in their democracy, whether it's volunteering on political campaigns, voting, being a part of nonpartisan, a civic participation activities. And that's reflected in the voter turnout. And for the one priority elections bills so far to be in response to that, to make voting harder rather than making it easier for these people to vote and updating our voting systems for the 20th first century, such as moving to an online voter registration system rather than a completely paper based system that seems like entirely the wrong response and freight bill, frankly, inexplicably.

DMD: So this is "SP 9." It has a low number to it. That means this has been given fast track authority, this, that, that signals something to the people in, in, in the legislature that this has got the support of the administration.

It is on the Lieutenant Governors list of top 30 bells, which is SB one grew SB 30. So that's a signal that, um, one of the most senior statewide officials in the state government believes that this is one of the bills that should receive heightened priority over, um, over the literally thousands of others that have already been introduced in the legislature. And there is no, you know, there's nothing in SB nine that makes it easier to vote. They all either do nothing to make it easier to vote or make it harder to vote and there's no other bill really a with such a high priority that makes it easier for people to vote.

DMD: It's also, does it make it harder to register to vote?

Yes. In one way, you know, given the, the ongoing criminal prosecutions that we have seen, um, around election related offenses and given the softening of the intent requirement to make crystal Mason prosecutions more likely, you know, it's not just the, the laws itself but the it will have on people. So I am a citizen who wants to go out and register people to vote, um, and, and help them get out to vote. But I'm looking at now a set of new laws that would send me to jail for longer. If I make an innocent mistake, you might think, well, maybe my time is better spent elsewhere. Why, why put up with the risk? And the thing is, is that those volunteers are vital to make sure that people get registered to vote. Um, given, you know, election officials have limited resources, the state stubbornly refuses to adopt online voter registration. If people are too scared to help other people vote, then that is going to make voter registration voter turnout a lot harder in this state.

DMD: So as this is happening here in Texas, in Washington D C h r one has passed the house and it's waiting to see if it's ever going to get to the Senate floor. HR 1 is a way to try to make some fixes to the voting rights act, which was gutted by the Supreme Court. If HR 1 was ever to find traction in the Senate, and it hasn't found any support from Texas Senator John Cornyn or Ted Cruz. But if it would, would that help Texans vote?

Well, I'm, I'm less fluent in HR 1 than I am on SB 9. But I would say that if you look at HR 1, what it is generally doing is trying to both make it easier for people to vote and to update voting systems for the 21st century. So, um, things like online voter registration where people don't have to find a particular paper form somewhere, they don't know where to register a would make it a lot easier for Texans to vote. And I would also say if you compare HR 1 and SB 9, I think it's more fair to think about what values they are getting at rather than necessarily the exact provisions. HR 1 seems at every turn to recognize that people have a fundamental constitutional right to vote and that our democracy is better, the more that citizens can participate in choosing their leaders and effecting policy. SB 9 does nothing to make voting easier and in fact, turn the dial back to make it harder. Um, those value choices are up for people to decide which one they prefer. But you know, we think here that voting is too hard in Texas already, and we should be trying to make it easier, not harder for people to vote.

DMD:  And when you hear that Senate Leader Mitch Mcconnell, Republican from Kentucky, and he talks about his opposition to HR 1 calling it a "Power Grab," and does that sort of help understand why SB 9 is moving forward through the Republican controlled Texas Senate?

I don't know. But I think the idea that a bill that would make it easier for people to vote as somehow a power grab is laughable. I think we would all agree that democracy is a good thing and that the more people can participate in elections and have the will of the people translate it into government, the better off we all are.

David Martin Davies can be reached at dmdavies@tpr.org and on Twitter at @DavidMartinDavi