As the Texas legislative session drew near its end Sunday, lawmakers appeared set to pass a bill overhauling the state’s elections, until Democrats did one final maneuver: They snuck out of the building. “Members, take your key and leave the chamber discreetly,” a Democratic leader in the state House told his caucus in a 10:35 p.m. text message.
The extraordinary move deprived the House of a quorum, killing the bill for now, at the cost of undermining the legislative process. But what do you expect after months of Democratic alarms about “voter suppression”? President Biden on Saturday called the Texas plan “un-American” and “part of an assault on democracy.” At least this time he didn’t say it’s worse than Jim Crow, which was the political bomb he lobbed at Georgia’s bill.
The reality is more prosaic. To start with the controversial, the 67-page bill would roll back Covid-19 innovations like Harris County’s drive-through voting and 24-hour voting. Those options were used disproportionately last year by black and Hispanic residents. But when did emergency procedures amid a 100-year pandemic suddenly become the new baseline? It’s hardly crazy to think polling-place shenanigans might be more likely at 3 a.m.
The bill says that on the last Sunday of early voting, polling places may not open until 1 p.m. This is a political mistake, at minimum, in that it’s being spun as an attack on black churches that have a “souls to the polls” tradition. One lawmaker supporting the bill argued: “Those election workers want to go to church, too.” But some people take care of their religious obligations on Saturdays, and in any event Texas repealed most of its blue laws in 1985. Lawmakers would be wise to drop this provision.
Under the bill, Texas would still offer some two weeks of early voting. Biden’s beloved Delaware won’t have any early voting until 2022, when it will get 10 days. The Texas bill would also raise minimum hours. In the final week, counties with 100,000 people must currently open their “main” polling place 12 hours on weekdays and five hours on Sunday. That population threshold would drop to 30,000, and six hours would be mandated on Sunday.
Mail ballots and applications would ask for a state ID number or the last four digits of a Social Security number. Georgia and Florida have passed similar measures, and the goal is to verify identity without having to do subjective signature analysis. In Georgia’s 2018 elections, black voters accounted for 54% of the ballots rejected for signature or oath issues. The Texas bill says if ID numbers match, the voter’s signature would be “presumed” valid.
The bill would change the legal standard for proving fraud to “a preponderance of the evidence” from “clear and convincing evidence.” If the number of illegal votes matched the margin, courts could throw out a race, without showing that fraud changed the result. Critics say this is a pander to Donald Trump, but Trump lost in 2020 under either standard.
Whether the new rules are too lax is a judgment call: Imagine a race decided by 50 votes, with 51 illegal ballots detected. Did more slip through? Perhaps the best thing for public confidence would be to redo the election.
The bill has many odds and ends. Offering “vote harvesting services in exchange for compensation” would be prohibited. Tabulating machines would be banned “if any wireless connectivity capability of the equipment has not been disabled.” Communications between public officials and voting-system vendors would be generally deemed “not confidential.” On election returns, mail ballots would be reported separately. Employers would be barred, “while early voting is in progress,” from refusing to excuse workers who want to go to the polls.
The Texas bill isn’t perfect, but no election law is since the exercise involves balancing ballot access, election security, ease of administration, and so forth. The point is that it’s hard to take seriously Biden’s narrative about an assault on democracy in a state that gives voters two weeks to cast a vote. Texas Gov. Greg Abbott said Sunday that the election bill will be added to the Legislature’s agenda for a coming special session.
Look forward, then, to more overheated rhetoric from partisans like Biden. But remember that his histrionics are intended to give political cover to Democrats in Congress who want to override 50 state election laws by jamming through H.R.1 on a partisan vote. That’s the real voting-law outrage.
This editorial was first published May 31 in the Wall Street Journal.