The Future of Senate Bill 97 and its Consequences
January 19, 2022
By: Zachary Daniel
Shortly before former president Trump called for Texas Governor Greg Abbot to perform a “forensic audit” of the 2020 election in the state, the Texas legislature proposed Senate Bill 97 as a remedy for the concerns over the unsubstantiated allegations of election fraud. If passed, the audits authorized by the bill could easily be weaponized because the bill empowers partisan political actors and the secretary of state over the county electoral process, and simultaneously burdens the counties. The bill has raised concerns among election law activists in Texas, who argue it would have a harmful, long-term impact on the state’s election system.
In the months following the 2020 election, Republican coalitions in states across the country called for audits of election results in four swing states in the name of uncovering alleged voter fraud. In response, the Republican-dominated legislature of Arizona appointed a private firm to investigate the accusations. After months of uncertainty, as well as squandered time, effort, and money, the audit ended and the results were published, showing no indication of fraud. Unfortunately for the rest of the nation, the damage had been done.
In late August and early September, the Texas legislature put forward Senate Bill 97, a two-part proposal which would both begin an audit of the 2020 election results in Texas and create a system for people to call for audits in all state and local elections in the future. Setting aside the 2020 election, if passed, critics fear SB97 would create a harmful and expensive system of election audits.
The bill empowers local partisan pundits to challenge election results at their discretion. It allows all election candidates, county party chairs, judges, and committee members to petition county clerks for “… explanation[s] and supporting documentation …” concerning election code violations, and irregularities in precinct results or the county’s required election documentation. It further allows “… requestor[s] who [are] not satisfied with the explanation and supporting documentation … [to] issue a request to the secretary of state for an audit …” of the alleged violation or irregularities.
The bill also dramatically expands the secretary of state’s power over the county-run election process and does so at the financial expense of the county. Once the request for an audit has been filed with the secretary of state, SB97 requires the secretary to consider whether the explanation and documentation provided by the county clerk “.., sufficiently explains the irregularity….” If the secretary deems the information insufficient, she “… shall immediately begin an audit conducted by the state, in which the “… county clerk shall cooperate … [and] may not interfere….”
Finally, the counties are left holding the bill. Regardless of any finding of fault, the secretary’s audit is to be conducted “… at the expense of the county.” Moreover, should the audit uncover any violations, SB97 requires that the state remedy the violation on behalf of the county if possible, and that the state fine the county “… a civil penalty of $500 for each violation not remedied … in addition to any other remedy available under law….” If the state cannot remedy the violation on behalf of the county, the state shall fine the county an additional $500 per violation “… for each day the county clerk does not remedy the violation….” Further, the secretary “… shall maintain a record of county clerks who have been assessed a civil penalty …” which is to be published on the secretary of state’s website.
The cost of the bill’s audits has sparked concerns among election law activists and legal scholars in Texas. During an interview on Texas Matters, a Texas Public Radio station, the Voting Rights Chair of the Texas League of Women Voters, Cindi Weatherby, voiced concerns about SB97’s possible impact on both state and federal elections. She asserted that the expansive audit powers of SB97 would create “… a process for people to [demand audits] in perpetuity … on any election…” turning Texas into “… the wild wild west.” She said the effect of the bill is to “… make people spend lots and lots of money to prove, basically, nothing happened.” She added that “… there are legitimate audits that are done, that have been done for many years. This is not that.” Ultimately, her concern is that SB97 will cost “… election administrators untold hours, and the counties untold dollars.”
Should it find its place in Texas’s election code, SB97 would create a system in which allegations of election fraud are weaponized by losing candidates against their rivals. The bill empowers partisan actors to question elections, it empowers the executive at the expense of the counties, and it allows that executive to drain counties of their time, effort, and money at the whim of those partisan actors.