The Right to Vote: An In Depth Look at Senate Bill 1

Abstract

In the aftermath of the 2020 presidential election, broad and extensive efforts have been and are occurring, primarily in Republican-controlled state legislatures, to enact changes to the laws affecting the voting process. According to the Brennan Center’s July 2021Voting Rights Round Up, at least “49 states” have enacted more than “400 bills” that can be characterized as restrictive of voting rights (Wilder). This very high level of legislative activity was sparked by former President Trump’s persistent claims that he had won reelection and that President Biden’s victory was due to widespread voting fraud. This has led both to criticism of Republican-backed initiatives in the state legislatures as amounting to voter suppression; and for the need for greater ballot security by those defending such initiatives.

The purpose of this paper is to attempt to furnish answers to the questions that have arisen in the debate over these election law changes, including whether they have been motivated by the goal of suppressing non-white voting rights, as the Justice Department has alleged with respect to the new voting law in Georgia; or, alternatively, whether the Republican-controlled legislatures are instead aiming to make it more somewhat more difficult for Democrats to vote—regardless of their race—in order to give Republican candidates and the voters who support them a partisan advantage. This paper will seek to answer these and related questions by a close examination of the newly enacted election law in Texas which is illustrative of many voting law changes in other states.

In addition, the paper will also address the efforts in Congress to respond to what the state legislatures have done and the legal challenges that have arisen in connection with the new voting laws in Georgia and Arizona. The new Arizona law has already been reviewed by the U.S. Supreme Court, which in Brnovich v. Democratic National Committee, decided July 1, 2021, upheld the two provisions of Arizona’s new election that were the subject of that litigation. Justice Alito’s opinion for the 6-3 majority spoke approvingly of the “effort” and “compliance with rules” entailed by voting and the “burdens of voting” that are tolerated by the law. This decision can be expected to be relied upon in defense of other state’s election law changes if they face legal challenges.

In sum, while it is not possible to make confident predictions about what the future holds for election law and voting rights, this paper will take stock of the current developments set forth above and make at least some tentative conclusions on the status of voting, election law, and relevant legal standards, with a particular focus on the provisions of the new election in Texas. The question hanging in the balance is whether these changes reflect hardball political partisanship or, as President Biden has described, a new “Jim Crow Era” (Wall Street Journal Editorial Board). 

Part 1: The 2020 Election and Voting in Texas During a Pandemic

In 2020, encouraging voters to cast ballots safely was a national challenge. This was a particular issue in Texas where a spike in cases of Covid-19 occurred as the election was about to take place. In November 2020, Texas had a positivity rate of ten percent (Astudillo). This placed pressure on election officials to devise procedures to protect the health and safety of voters.  Harris County was a leader in adapting the voting process to take account of the virus outbreak. Houston, the county seat and most populous city in Texas, is a Democratic stronghold. In the 2020 election, nearly 60% of voters in Harris County voted for candidates of the Democratic Party.⁹ Harris County Judge Lina Hidalgo and County Clerk Chris Collins led the effort to develop procedural changes to the voting process due to the pandemic (Harper). 

One such change aimed to expand the number of voters casting mail-in ballots. This would reduce the number of voters needing to vote in-person where social distancing is more difficult. According to the Texas Secretary of State’s Office, to request a mail-in ballot you must either be older than “65, be sick or disabled, be out of the county on election day [including during early voting], or be in jail but otherwise eligible” (Texas Secretary of State). These Texas state law requirements raised the question in how voting by mail could be applied more widely.

The County’s first attempt to expand mail-in voting was to treat the risks associated with contracting COVID-19 as an acceptable basis for voting by mail. Harris County was joined by other Democratic counties, such as Travis County, which took the position that the “disability” provision of the Texas election law could apply due to the pandemic. This would essentially allow all voters in those counties to request mail-in ballots. 

Because over 71% of Travis County voters cast ballots for Democratic Party candidates in 2020, Republicans perceived the expansion of mail-in voting as more about getting Democratic voters to cast ballots for its candidates than it was about the pandemic. When challenged, the Texas Supreme Court decided against this attempted expansion of mail-in voting, holding that providing mail-in ballots upon request was inconsistent with state law and that “COVID-19 is not” a disability preventing a voter from casting a ballot in person (Abbot v. Anti-Defamation League et al.) 

Next, there was a proposal to allow voters to cast ballots without leaving their cars—which would allow for maximum social distancing. This was implemented by setting up drive-through polling places in the parking garage of the Toyota Center, a large arena in Houston where the NBA Rockets play. This was not an entirely new procedure. Disabled voters in Harris County have long been entitled to curbside voting at any polling location. However, the expansion of drive-through voting was challenged by Republicans who sought to throw out every vote that was cast at a drive-through location (McCullough). 

Harris County also planned to send out 2.4 million mail-in ballot applications to all voters  eligible to vote by mail—whether or not they had requested a mail-in ballot. With respect to voting in person, the county also created six polling locations that would be open 24-hours a day. The Texas Attorney General filed suit to block Harris County from implementing these new procedures. The Texas Courts agreed with the challenge to these new procedures.

Part 2: Senate Bill 1 & The Legislative Changes to Texas Voting Law

Republican opposition to what occurred in Harris County and elsewhere in Texas to expand voting in 2020 culminated in the recently enacted Senate Bill 1, titled The Election Protection Integrity Act of 2021, which Governor Abbott signed into law on September 7, 2021. It clearly demonstrates a legislative goal to prevent the innovations in voting employed in Harris County. For instance, Senate Bill 1 prohibits 24-hour voting, drive-through voting, and makes it unlawful for counties to send out mail-in ballot applications en masse (Smith).  

Specifically, the principal elements of Senate Bill 1 are as follows. The bill bans drive through voting and 24- hour voting; revises the hours for early voting polling places; expands early voting from counties with  populations of 100,000  to counties with populations between 50,000 and 100,000; imposes new ID requirements for persons applying for mail-in ballots; adds new paperwork for people who assist another person in voting; enlarges the role for poll watchers; and creates new criminal penalties for sending out unrequested mail-in ballots and for limiting poll watchers ability to observe polls (Texas S.B. 1). 

Although the primary goal of Senate Bill 1 was to eliminate the pandemic related voting measures and create new restrictive voting measures, the bill also increased the hours polling places could remain open and applied early voting smaller counties. The principal provisions of Senate Bill 1 are discussed and analyzed in the following paragraphs.

Part 3: A Closer Look

It is an understatement to describe Senate Bill 1 is a major change in election law. Its legislative purpose of banning the pandemic related voting changes is clear—especially the initiatives developed in Harris County. It is no surprise that the Republican-controlled state legislature chose Harris County as its target. A reliably Democratic county, Harris County voted for President Biden over former President Trump by about 13 percentage points. The legislative aim of reducing mail-in voting is best understood from the fact that absentee voters preferred Biden over Trump by 20 percent while election day in-person voters preferred Trump over Biden by 5 percent (Harris County). Additionally, Harris County is 69 percent non-white— providing a reason why it has been targeted by Republicans who believe non-white voters are, in general, more likely to favor candidates of the Democratic Party.

Turning to drive-through voting, this option was extremely popular with voters who preferred waiting in their own car to vote as compared with doing so queued up in a voting line, which could have proven unsafe during 2020. This new method of voting drew an unusual degree of attention in Senate Bill 1—especially because the method was still in its early stages of implementation and no reports of fraud emerged that would justify its banning (Texas Senate Bill 1).  

However, drive-through voting was not the only pandemic related election law change affected by the bill. Early voting hours and 24-hour voting centers were also subject to change (Smith). Opening a handful of polling places in Harris County for 24 hours a day provided more options for voters with challenging schedules and promised shorter lines for voters worried about social distancing. While these centers were only open in one county on one day of the year, the Texas legislature banned this method of voting in its entirety. 

Perhaps the best argument in support of the elimination of drive-through and 24-hour polling places is that these procedures arose out of COVID-19 concerns. If the risks associated with the pandemic are not likely to be permanent, then such innovations need not become a permanent feature of voting in Texas despite their popularity among voters (Bludau).

While generally restrictive to voting, Senate Bill 1 includes some provisions expansive of voting. For instance, the prior law allowed only counties with populations of more than 100,000 to hold early voting periods. The new law applies early voting to counties with populations of 50,000, meaning more counties are required to have early voting periods While this makes voting easier in more counties, it could also be viewed as having a partisan political motive in that smaller and rural counties are likely to have more Republican voters than Democratic voters. In addition, the new law has reasonably generous provisions for how long polling places are open and includes early voting on weekends.

Senate Bill 1 also creates new restrictions on mail-in ballots (Ura). Previously, a person applying for a mail-in ballot received one once the signature on the application was checked against the voters’ registration. Now any such applicant must supply their driver’s license number or the last four digits of their social security number and include the same information when submitting their mail-in ballot. Further, the new law imposes a criminal penalty on any election administrator or other official who violates the new provision.

One particularly notable part of Senate Bill 1 is the way it specifies an expanded role for poll-watchers—backed by a new criminal penalty for any person obstructing a poll-watchers opportunity to observe the counting of ballots. These provisions appear to reflect a mistrust of the persons who tabulate the vote count. 

Part 4: Conclusion

What conclusions can be drawn about voting in Texas now that it is governed by Senate Bill 1 which has already been challenged by a flurry of lawsuits alleging that the new law is racially discriminatory and suppresses voting rights. These cases are wending their way through the courts. Their outcome is not predictable but the Supreme Court’s Brnovich decision set a high bar for such challenges.

Any discussion of Senate Bill 1 would be incomplete without questioning its motive. Republican candidates did very well in 2020. Former President Trump carried Texas. Senator Cornyn, a Republican, was re-elected. The Texas state legislature maintained its Republican majority. Was this election so rife with fraud that new legislation was needed to protect against it? Notably, the supporters of Senate Bill 1 have never been able to cite to examples of voting fraud in Texas.

Whether to not this new election was has a racial purpose or effect, or is vulnerable to other legal claims, it is surely motivated by the changing composition of the population, and the electorate, in Texas. The prospect of the number of reliable Republican voters is shrinking may well be the most satisfactory reason to explain why the Republican-led state legislator sought principally to restrict, rather than expand, the ability of Texans to vote.

Works Cited 

ABBOTT v. THE ANTI-DEFAMATION LEAGUE AUSTIN, SOUTHWEST, AND TEXOMA REGIONS; COMMON CAUSE TEXAS; AND ROBERT KNETSCH, RESPONDENTS (Supreme Court of Texas October 27, 2020). 

Astudillo, C., Cai, M., Essig, C., & Walters, E. (2020, November 25). Texas again sets record for new coronavirus infections as testing also sees sustained highs. The Texas Tribune. Retrieved December 19, 2021, from https://www.texastribune.org/2020/11/25/texas-coronavirus-infections-record/ 

Bludau, A. J. (2021, August 26). Drive-thru voting could soon be banned, but this study shows harris county voters really like it. khou.com. Retrieved December 19, 2021, from https://www.khou.com/article/news/politics/harris-county-voters-like-drive-thru-voting-study-shows/285-48f6e280-df1e-44c8-b796-9c403739142f 

Board, T. E. (2021, July 13). Opinion | Joe Biden, Jim Crow and Texas voting. The Wall Street Journal. Retrieved December 19, 2021, from https://www.wsj.com/articles/joe-biden-jim-crow-and-texas-voting-11626215733 

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Harper, K. B., & Platoff, E. (2020, October 15). Harris County tried to make voting easier during the pandemic. Texas Republicans fought every step of the way. The Texas Tribune. Retrieved December 19, 2021, from https://www.texastribune.org/2020/10/15/harris-county-texas-voting/ 

Harris County . (n.d.). Harris County Election Results. Retrieved from https://www.harrisvotes.com/HISTORY/20201103/Official%20Cumulative.pdf. 

Leighton, H. (n.d.). Not only is Houston getting more diverse, but residents’ households are, too. The Kinder Institute for Urban Research. Retrieved December 19, 2021, from https://kinder.rice.edu/urbanedge/2019/05/14/not-only-houston-getting-more-diverse-residents-households-are-too 

McCullough, J. (2020, November 2). Nearly 127,000 Harris County drive-thru votes appear safe after federal judge rejects GOP-led Texas lawsuit. The Texas Tribune. Retrieved December 19, 2021, from https://www.texastribune.org/2020/11/02/texas-drive-thru-votes-harris-county/ 

Smith, A. B. (2021, September 1). What’s in Senate Bill 1? khou.com. Retrieved December 19, 2021, from https://www.khou.com/article/news/politics/whats-in-senate-bill-1/285-2e22dcdc-fa2a-43a7-91aa-f341c43d075c 

Spectrum News Staff. (2020, October 29). Vote all night: Texas’ Harris County offers 24-hour locations. Texas’ Harris County Offers 24-Hour Voting. Retrieved December 19, 2021, from https://spectrumlocalnews.com/tx/dallas-fort-worth/news/2020/10/29/vote-all-night–texas–harris-county-offers-24-hour-locations- 

Texas Legislature , & Huges, Senate Bill 1 (2020). Austin , TX. 

Texas Secretary of State. (n.d.). Application for a Ballot by Mail. Application for a ballot by mail. Retrieved December 19, 2021, from https://www.sos.texas.gov/elections/voter/reqabbm.shtml 

Ura, A. (2021, August 30). The hard-fought Texas voting Bill is poised to become law. here’s what it does. The Texas Tribune. Retrieved December 19, 2021, from https://www.texastribune.org/2021/08/30/texas-voting-restrictions-bill/ 

Wilder, W., Waldman, M., & Ayers, P. D. (2021, May 28). Voting laws roundup: July 2021. Brennan Center for Justice. Retrieved December 19, 2021, from https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-july-2021 

Wilder, W., Waldman, M., & Ayers, P. D. (2021, May 28). Voting laws roundup: July 2021. Brennan Center for Justice. Retrieved December 19, 2021, from https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-july-2021 

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