Ahead of the 87th Legislative Session convening in January, six Republican state lawmakers have pre-filed companion bills in the state Senate and House to codify legal opinions issued by the Texas Attorney General’s Office and Texas Supreme Court related to election procedure.
The bills were proposed after the largest county in the state attempted to mail unsolicited mail ballot applications to all registered voters, and after the Texas Democratic Party filed lawsuits in state and federal courts arguing that all registered voters in Texas should be allowed to vote by mail by claiming a disability because of the coronavirus.
Sens. Paul Bettencourt of Houston, Brain Birdwell of Granbury, Brandon Creighton of Conroe, Bob Hall of Rockwall, and Kel Seliger of Lubbock, filed SB 208 in the state Senate. State Rep. Valoree Swanson, R-Houston, filed HB 25 in the House.
“We must recognize the obvious that we didn’t need to mail two million-plus absentee ballot applications to all registered voters in Harris County to have a record 11.2 million Texas voters cast their ballots in November,” Bettencourt said. “This bill SB 208 is about making sure all votes in Texas are counted legally.”
In October, the Texas Supreme Court ruled that Harris County Clerk Chris Hollins could not send absentee ballot applications to all registered voters, arguing doing so would undercut the Secretary of State’s duty to “maintain uniformity” in Texas’ elections. The Secretary of State’s Office asked for an “immediate halt” of mailing unsolicited ballot applications to all registered voters.
Keith Ingram, director of Elections, said mailing mail ballot applications to all registered voters was “contrary to our office’s guidance on this issue and an abuse of voters rights under Texas Election Code Section 31.005.”
Attorney General Ken Paxton’s guidance issued to local elections administrators addressed curbside voting operations.
“This letter serves as a notice and reminder that the Election Code provides curbside voting as an option only to those who meet a certain, narrow set of criteria,” his letter warned. “Curbside voting is not, as some have asserted contrary to Texas law, an option for any and all voters who simply wish to vote from the comfort of their cars when they are physically able to enter the polling place.
“Fear of COVID-19 does not render a voter physically unable to cast a ballot inside a polling place without assistance,” Paxton added, referring to a ruling issued by the Texas Supreme Court on mail-in ballots. “Accordingly, election officials should not advise voters that such fear qualifies them to cast a curbside ballot.”
Bettencourt adds that the overwhelming majority of Texas’ registered voters are not qualified to vote by mail. Qualifications include having a proven disability, being age 65 or older, and several other criteria. Voters must request to receive mail-in ballot applications from election officials.
“Sending 2 million-plus absentee ballot applications to all registered voters would have certainly caused more voter confusion as 95 percent of these recipients would not have qualified for an absentee ballot under Texas Election Law in the first place,” Bettencourt said. “It is important to note that the 66.2 percent turnout in 2020 was without wasting taxpayer money by doing shotgun mailings to everyone on the voter roll.”
The bills state that unless otherwise authorized by Texas Election Code, “an officer or employee of this state or of a political subdivision of this state may not distribute an official application form for an early voting ballot to a person.”
In their lawsuits, Texas Democrats argued that the possibility of contracting the coronavirus while voting in-person constituted a “disability,” therefore all registered voters should be able to claim a disability and be allowed to vote by mail. The Fifth Circuit Court of Appeals disagreed.
The court ruled that the coronavirus has not given federal judges “a roving commission to rewrite state election codes” and “has not suddenly obligated Texas to do what the Constitution has never been interpreted to command, which is to give everyone the right to vote by mail.”
The Texas Supreme Court ruled that “a lack of immunity to COVID-19 is not itself a ‘physical condition’ that renders a voter eligible to vote by mail” according to state election law.
More than a dozen voting-related bills have already been submitted this month since lawmakers were able to began pre-filing bills Nov.. The last day to file bills is March 12.
The 87th Legislative Session begins on Jan. 12.