Texas Senate takes another run at supposed election fraud, approving audits of 2020 results and tougher illegal voting penalties

Harris County election workers process the MBB data cards which contain ballot results at the NRG Arena in Houston on Tuesday, Nov. 3, 2020.

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

Reversing their own action from less than two months ago, Republicans in the Texas Senate advanced legislation Tuesday to increase the criminal penalties for illegal voting. And in a search for an avenue to scrutinize the outcome of the 2020 election, they also advanced a bill that would clear the way for party officials to trigger county audits.

Both moves reflect the Texas GOP’s determination to press forward with efforts to tighten the state’s voting laws, despite the absence of any evidence of widespread fraud or irregularities. And despite the Senate’s efforts, both measures could stall out after clearing the chamber.

House Speaker Dade Phelan has indicated he is uninterested in taking up enhanced penalties for illegal voting. The audit legislation, meanwhile, is not on the agenda Gov. Greg Abbott has set for the current special legislative session, raising questions whether it will move in the House either.

In approving Senate Bill 10 on a party-line vote, Republican senators returned to the sweeping voting bill they championed over the last few months to further restrict the state’s voting process and narrow local control of elections. The bill contained a little-noticed change made by the House that lowered the penalty for illegal voting from a second-degree felony to a Class A misdemeanor. Abbott signed that measure, Senate Bill 1, into law less than a month ago, but last week ordered lawmakers to reverse course.

A second-degree felony in Texas is punishable by up to 20 years in prison, while Class A misdemeanors are punishable by up to a year in jail, but can be resolved with a fine.

“That [House] amendment came late in the process, and now that the smoke has cleared and everyone has had time to look at all the details ... this will maintain the status quo,” said state Sen. Bryan Hughes, the Mineola Republican who authored both the penalty change and the original legislation.

The change was made during the House’s regular floor debate and left in after Republicans from both chambers negotiated — and signed off on — the final version of the bill, including the lower penalty.

Phelan does not appear to be on board with restoring the previous penalty for illegal voting. Shortly after Abbott added the penalty to the agenda, the speaker said in a post on Twitter that “now is not the time re-litigate” the changes contained in SB 1.

He previously told the Houston Chronicle that the penalty change was in line with the Legislature’s “holistic approach to advancing election integrity” that struck “the appropriate balance between ballot access and accountability.”

Senate Republicans also revisited past legislation in advancing Senate Bill 47 to give all state or county party officials the ability to trigger mandatory reviews of the 2020 election. The legislation is largely a duplicate of a hastily conjured bill the Senate passed at the end of the last special legislative session. It never made it over to the House, as both chambers ended the session the same day.

The renewed movement on the audit bill comes as former President Donald Trump is putting pressure on Abbott and Texas Republicans to take up his crusade casting baseless doubts on the outcome of the election he lost nearly a year ago. Trump has specifically urged Abbott to move on the audit legislation, reupping his public lobbying even after the state announced a “full forensic audit” of four counties after Trump’s first request for legislation that would allow a review of mail-in and in-person ballots across the state.

There is no evidence of widespread fraud in the 2020 election, and fraudulent votes generally remain rare in the state.

The secretary of state’s reviews would lend for a more limited evaluation of the 2020 election. They are contained to four counties, cover post-election procedures counties are already required to conduct and would largely entail a review of records counties are already required to maintain.

In contrast, the audit legislation would allow state or county party chairs to mandate a review of the 2020 election by simply submitting a request in writing to a county clerk. That would include a review of actual ballots voted in the election.

“What I believe we need to do is ask questions and get answers,” said state Sen. Paul Bettencourt, R-Houston, who authored the legislation. “That’s really what the bill does. If you ask questions and get answers, then you are improving everyone’s belief in the integrity of the election system and the voter roll.”

Voting rights advocates have raised concerns the legislation would open the door to politically motivated audits. On the Senate floor, Democrats pushed back on the legislation, questioning the costs counties would incur footing the bill for the reviews, and the lack of standards governing the secretary of state’s role in pursuing audits under the bill.

In future elections, a second part of the bill would allow candidates, county party chairs, presiding polling place judges or heads of political action committees that took a position on a ballot measure to push for audits if they suspect irregularities.

That process would begin with a written request to the county clerk for an “explanation and supporting documentation” for alleged irregularities or election code violations. If the person requesting the review is not “satisfied” with the response, they could request “further explanation.” If they are still unhappy, they could turn to the Texas secretary of state to request an audit of the issue.

If the secretary of state determines the county’s explanations are inadequate, it must immediately begin an audit of the issue at the expense of the county.

A similar audit bill filed in the House last month has remained untouched.

Disclosure: The Texas secretary of state has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.