The Future of Senate Bill 97 and its Consequences: Part II
February 16, 2022
Part I of this blog post discussed Texas Senate Bill 97, and the dangerous changes it would make to election audits in Texas. The proposed bill was put forward to address unsubstantiated claims of voter fraud that allegedly transpired during the 2020 presidential election, and it appears to be an element of a larger campaign by Trump’s Republican coalition to undermine the results of that election. Critics argue that Senate Bill 97 would create an unnecessary and potentially dangerous election auditing system.
Part II of this blog post will discuss major features of the existing election auditing system under the Texas Election Code and will compare them to the changes proposed by Senate Bill 97. As things stand, investigations into election misconduct are covered under Title 14 Chapter 232 and Title 16 Chapter 273. The current system includes checks against partisanship such as a limited timeframe during which election results may be contested, a separation of powers when it comes to who conducts inquiries, a narrow scope of injury in contested elections, a narrow array of civil penalties for misconduct, and a reliance on local prosecutors to pursue criminal action.
The current procedure for contesting elections is outlined under Title 14 Chapter 232. Importantly, only a candidate in an election may contest the outcome of that election. Moreover, to successfully prevent the outcome of the election from being determined, the candidate may not file his petition to contest “… earlier than the day after election day…” and “… not later than the … 30th day after the date the election records are made publicly available[,] …” or “… later than the … 10th day …” during primaries or elections requiring runoffs. This limited timeframe and requirement that challenges be made by the candidate himself is juxtaposed with the apparently unlimited timeframe and list of possible petitioners afforded by SB97.
Title 14 Chapter 221 of the Election Code outlines what entities have jurisdiction over election contests in Texas. Generally, the state “… district court[s] [have] exclusive original jurisdiction of an election contest…” in their counties. However, jurisdiction may change according to what office the election concerns. For instance, “[t]he senate and house of representatives … have exclusive jurisdiction of a contest of a general election for governor, lieutenant governor, …” and some other executive offices. This balanced delegation of powers based on the type of election is compared to SB97’s consolidation of power in the hands of the secretary of state.
Section 221 also plainly limits the scope of election inquiries conducted by the presiding entity. The entity with jurisdiction is directed to “… attempt to ascertain whether the outcome of the contested election … is not the true outcome….” This may only be because either (1) “… illegal votes were counted …” or (2) an election administrator “… prevented eligible voters from voting[,] failed to count legal votes[,] or engaged in other fraud or illegal conduct or made a mistake.” This limited set of criteria is in stark contrast with SB97’s vague “irregularities” in precinct results and absent documentation that lend themselves to countless, frivolous investigations.
Under Title 14 Section 247, a candidate may also petition for civil penalties in particular cases. Candidates may challenge “… opposing candidate[s], … agent[s] of …opposing candidate[s], or a person acting on behalf of … opposing candidate[s] …” who they allege committed specific forms of voter fraud “… with the candidate’s knowledge….” There are ten specific forms of fraud outlined in the statute including illegal voting under Section 64.012 and vote harvesting under Section 276.015. Should the candidate show by a preponderance of the evidence that a violation of one of the listed statutes occurred, his opponent is liable “… for damages in an amount of $1,000 for each violation.” The law in its current form holds only the fraudster liable for his bad acts, compared to SB97 which places the burden on the county.
Under current law, criminal investigations into fraud may also take place under Title 16 Section 273 of the election code. To initiate an investigation, the statute requires “… two or more registered voters of the territory covered by an election [to] present affidavits alleging criminal conduct in connection with the election to the county or district attorney having jurisdiction in that territory….” If the election spans more than one county, “… the voters may present the affidavits to the attorney general, and the attorney general shall investigate the allegations.” In turn, the attorney general may “… direct the county or district attorney serving a county in the territory covered by the election to conduct or assist the attorney general in conducting the investigation….” Moreover, the venue remains the “… county in which the offense was committed or an adjoining county[,]…” unless the offense was in connection to a statewide election, in which case the offense may also be prosecuted in the capital, Travis county.
The existing statutory regime is more than robust enough to investigate election fraud and misconduct. A balanced system of civil and criminal investigative powers divided between the judiciary and law enforcement is already in place to prevent unfair outcomes in the electoral process. While Senate Bill 97 would not undo the law as it stands, it is a drastic and unnecessary expansion of power in the hands of political activists and the secretary of state.