Two More Texas Legislature Bills That Would Limit Voting

As reported in a recent Ken Herman Austin American-Statesman column, Senator Don Huffines of Dallas has filed S.B. 703 in order to eliminate the use of non-permanent early voting locations; while Representative Valoree Swanson of Spring has filed H.B. 1773, which imposes a big limitation on tax and bond elections by imposing a floor requirement that in order to pass, tax rate increases and voter-approved bonds would have to be voted on by a minimum of 25% of the total number of registered voters in a jurisdiction.

Legislative efforts to limit the amount of early voting and to limit approval of bond elections are consistent with planks 59, 76, and 178 of the current Texas Republican Party platform. As I mentioned in my previous post about two other election bills, we can see the genesis of these election-related bills expressed in various election reform policy statements made by the Texas Republican Party. So in one sense (i.e., as legislative codifications of Republican Party policy statements) S.B. 703 and H.B. 1773 are neither remarkable nor particularly surprising.

The League of Women Voters of Texas and the Texas Association of School Boards oppose  S.B. 703 due to that bill’s limitation on early voting polling places, 

I. S.B. 703 BARS THE USE OF TEMPORARY STRUCTURES FOR BRANCH EARLY VOTING IN ALL ELECTIONS, AND INVALIDATES THE RESULTS OF ANY REVENUE-RELATED ELECTION THAT IS CONDUCTED USING TEMPORARY STRUCTURES FOR EARLY VOTING

In Ken Herman’s story, Senator Huffines describes the goal of S.B. 703 in the following terms:

“What we’re trying to solve is manipulation of the result of an election by moving the polling location to benefit one side or the other.”

He’s particularly suspicious about school district bond elections. He claims school officials, seeking approval for bonds for a new football stadium, have put mobile early voting places at the old stadium on Friday nights, eager to connect with fans who’d like a new stadium.

“When you move the mobile polling booth to the football stadium on Friday nights, that does seem to have an impact on the election results,” Huffines said, offering no examples but adding: “There’s no question they do it.”

Interestingly, (and as a clarification of S.B. 703’s effect as drafted), the bill globally affects the ability of election administrators to use temporary structures to accommodate early voting in all elections—federal, state, local, elections for officers, party primaries, etc.

First, S.B. 703 proposes new language in Section 85.062(b) of the Texas Election Code. As the law currently reads, mobile structures may be used as polling places in political party primaries and in the general elections for district, county, state and federal offices. Basically, in those elections that tend to have higher turnout, county election officials may make use of moveable structures in order to handle the press of voters — this is particularly useful for assisting voters in rural areas that lack suitable permanent structures for early voting.

By specifically prohibiting the use of mobile structures (think trailers or portable buildings) as early voting locations for all elections, the bill substantially limits early voter access to polls in areas that lack available permanent buildings for the November general elections for county, district, state and federal offices, and for early voting in primary elections (which are already more difficult to schedule, owing to the fact that each party conducts a separate election in each county, making it harder to find buildings to accommodate these elections).

Second, by repealing Section 85.062(e) of the Texas Election Code, the bill removes the regulatory framework for the use of mobile structures for temporary early voting polling places in all primary elections as well as all general and special elections conducted by county officials.

And yes, with respect to the author’s stated intent of focusing the effect of the bill on local government tax rate and bond elections, the bill does also specify (in text to be codified as Section 85.062(h) of the Election Code) that if any revenue election requiring voter approval is conducted with the use of mobile structures, the election result is automatically invalidated.

More specifically, the bill states that in such a circumstance, “the election for approval of the proposition is invalid.”

The bill is written so broadly that this invalidation would also apply to any statewide revenue proposition election, such as (for example) a state constitutional amendment election relating to taxes or bonds.

This is an astonishingly odd bill, whose possibly unintended global effects may have arisen out of a misunderstanding about the distinction between two related but different things, namely (1) where early voting happens, and (2) what kind of building the early voting happens in.

In any election, there is such a thing as additional branch early voting locations. Sometimes for practical reasons (lack of suitable buildings, natural disasters, rural setting, etc.), these additional branch early voting locations are placed in temporary or moveable structures.

Here’s the problem — where early voting takes place (say, on the corner of 5th and Main Street) isn’t the same thing as what kind of building the voting takes place inside (a tent, a construction trailer, a brick and mortar county courthouse, etc.).

One might arguably hold the philosophical view that people shouldn’t be allowed to vote early at, say, the corner of 5th and Main (although one is hard-pressed to offer a reason in the abstract as to why early voting locations are bad things). One might arguably assert that people shouldn’t be allowed to vote in temporary structures.

But these two objections are about different things.

Under current law, early voting locations aren’t less legal simply because they happen to be in a temporary building; those buildings do have to meet some basic common-sense standards of durability and accessibility, of course, just so rain and wind won’t accidentally make a mess out of the election equipment. But apparently in his eagerness to regulate what he may perceive as the creation of too many branch early voting locations, the author of S.B. 703 has decided to attack the problem by getting rid of the use of temporary buildings for early voting in primaries and general elections.

Because S.B. 703 prohibits the use of temporary or mobile structures as polling locations in all elections, the bill is likely to gore many oxen, including the interests of state and federal candidates in both primary and general elections for public office who want to get votes where their constituents live, particularly in conservative rural Texas.

Not to mention the fact that the bill expressly invalidates the results of revenue elections up to and including statewide bond elections that happen to be conducted with early voting in mobile structures. That statewide effect on matters of state revenue control might cause the ears of bond attorneys to prick up, at the very least.

One could fairly wonder whether S.B. 703 is constitutional by any stretch of the imagination, and whether the bill (by limiting the siting of early voting locations to permanent structures) violates state and federal laws regarding making polling places accessible for voters with disabilities, for example.

But my more immediate critique of the bill is that it’s incoherent. Even people who think we have way too much early voting don’t care whether or not we use trailers. And sometimes temporary buildings are just the best or only options available to county elections offices who are trying to set up branch early voting in areas without suitable permanent structures.

At least as of today, I’ve only seen the one newspaper story about S.B. 703, and maybe it’s because we’re still early in the session. But I hope that this deeply flawed bill gets more than merely passing scrutiny, given the effect that the bill would have on election administrators statewide.

Okay, now on to the second bill mentioned in Ken Herman’s story.

II. H.B. 1773 SUBVERTS ELECTION EXPECTATIONS AND OUTCOMES BY MAKING WINNERS INTO LOSERS

H.B. 1773H.B. 1773 tracks Plank 178 of the Texas Republican Party Platform pretty closely — the idea behind this bill is that elections for voter-approval of tax rates and tax-revenue supported bonds would only pass if at least 25% of the registered voters in the election territory actually participate in the tax or bond election. (The platform only requires 20% participation of the registered voters in the affected territory, so the proposed bill is more strict than the platform plank.)

In other words, if the bill were to pass, it would create a situation in which, if no one is particularly opposed to a tax rate increase, and turnout is small (as it tends to be in local elections), the bond or tax rate increase would be deemed to have failed even when a majority of the votes favor that increase, unless at least 25% of the registered voters actually voted.

A “minimum turnout” requirement that invalidates the results of certain tax and bond elections is in direct conflict with numerous sections of state law that describe how bond and tax election results are tabulated and canvassed. Hundreds of statutes authorize various bond and tax revenue elections, and often with traditional legal formulaic language, referring to “a majority of the voters voting …” or words to that effect.

So H.B. 1773 adds Section 2.101 to the Election Code, attempting to specify that for any local tax or revenue election, 25% of the total number of registered voters in the election have to vote in the election in order for the outcome to be valid. But the Election Code isn’t the authorizing statute that gives the local entities power to conduct these elections.

The authority to conduct the various tax, bond, and other revenue elections is scattered throughout Texas law, from the Agriculture Code all the way to the Water Code. I’m not going to exhaustively run down every statute that is placed in direct conflict with H.B. 1773 right here, because there are just too many, but here is just one example:

Section 504.251 of the Local Government Code. This statute authorizes a municipality to conduct an election to approve a sales and use tax in support of a so-called “Type A” municipal corporation for the purpose of economic development projects.

Already I can feel your eyes glazing over as I describe what this statute does. Briefly, it authorizes an election to increase a tax for the purposes of supporting local economic improvement. And the election passes if (in the words of the statute, a “majority of the voters of the municipality voting at the election” approve the rate increase.  See that? “A majority of the voters … voting.” If only three voters show up out of thousands, and two of the voters vote in favor of the tax, it passes per this statute.

What the author of H.B. 1773 has set up is an irreconcilable conflict with tax and bond election authorizations in the Education Code, the Finance Code, the Government Code, the Local Government Code, and on and on. Hundreds of laws, all of which read more or less the same as Section 504.251 of the Local Government Code, and all of which specify that tax and bond measures pass on a simple majority vote.

H.B. 1773, from the perspective of a government finance expert, is an invitation to almost instant and pervasive lawsuits, given that the statute can’t be reconciled with the vast body of state statutory law relating to tax and bond elections.