87th LegislatureState HouseState SenateDemocrats Seek to Expand Mail-in Balloting, Republicans Look to Stem Efforts During 87th Legislative Session

In Texas, only voters 65 years of age or older, have a disability or illness that prevents them from voting safely in person, or will be out of their county during the election may vote by mail. Texas Democrats sued to extend that ability to all registered voters under the pretense that lack of immunity to coronavirus constitutes a “disability or illness.”

This argument was struck down by the Supreme Court of Texas (SCOTX), as was their federal challenge that the 26th Amendment precludes any differentiation between voters of different ages.

Republicans remained adamantly against expanding mail ballot availability. Their contention, outside of the established statutory limitations, is that voting by mail is more vulnerable to fraud. This, on its face, is accurate given the nature of mail-in voting versus in-person voting. It’s much harder to impersonate a voter face-to-face than with an envelope.

But, especially nationally, the argument has expanded to allegations of widespread voter fraud. For an examination of mail ballot fraud in Texas, read here.

The firefight over mail ballots during the 2020 election sets the table for a wide array of legislation aimed directly at that issue during this upcoming session.

For example, six versions of the same bill to expand absentee voting to all registered voters have already been filed. Five come in the Texas House, from Reps. Terry Meza (D-Irving), Evelina Ortega (D-El Paso), John Bucy (D-Austin), Sheryl Cole (D-Austin), and Christina Morales (D-Houston).

The other was filed in the Senate by Sen. José Menéndez (D-San Antonio).

Those bills also allow a voter to cast a late ballot if they have a “sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter ’s health.”

On the flip side, Republicans filed bills to specifically prohibit any official from providing a mail ballot application to any voter that doesn’t already meet the statutory requirements. Proposed legislation by Rep. Valoree Swanson (R-Spring) states, “Unless otherwise authorized by this code, an officer or employee of this state or of a political subdivision of this state may not distribute an official application form for an early voting ballot to a person.”

This bill’s twin in the Senate was filed by Sens. Paul Bettencourt (R-Houston), Brian Birdwell (R-Granbury), Brandon Creighton (R-Conroe), Bob Hall (R-Edgewood), and Kel Seliger (R-Lubbock).

In a further security effort, Rep. Briscoe Cain’s (R-Deer Park) House Bill 329 would require the secretary of state, at least twice a year, to cross-reference the voter registry with the U.S. Department of Homeland Security’s non-citizen resident database. 

Other efforts from Democrats include various measures to virtualize certain aspects of the vote-by-mail process. A bill by Rep. Art Fierro (D-El Paso) requires the secretary of state to record emails as part of a voter’s file. It then allows local elections officials to contact a given voter who requests a mail ballot by email to rectify any errors before rejecting the request.

Rep. Jessica González (D-Dallas) submitted two related bills. The first would establish a statewide system by which to receive mail ballot applications electronically. The second allows an unregistered voter to submit a registration application and mail ballot application at the same time. The latter would only be evaluated if the former was first validated.

Meanwhile, another bill by Bucy would allow absentee voters to vote entirely by email.

Republicans remain not only wary of expanded mail ballot use but opposed altogether to virtualizing voting in any way. Another of Swanson’s bills prohibits the use of an electronic or photocopied signature on a registration application, specifically stating that ink on paper must be used.

This is aimed at fax machines that relay not electronic, but photocopied signatures.

Another byproduct of the overarching mail ballot fight was about drop off locations. Harris County expanded their locations at which mail ballots could be dropped off from one to 11 during the early voting period. This came after Governor Abbott, via executive order, expanded the drop-off site’s use through the entire early voting period rather than just on election day like statute requires.

The governor responded to Harris County by specifically limiting drop-off sites to one. Abbott eventually won in court,  but only after a weeks-long standoff.

Bucy’s House Bill 844 expands the drop-off site option to all of early voting and leaves to the county clerk’s discretion how many to operate. Unlike the Harris County dictate, this change would carry with it the force of ratified law — should it make it through during session.

This election was the first in Texas without straight-ticket voting. But some have clamored for ranked choice voting — the method by which a voter ranks their options in order of preference. Fierro has filed a bill to institute such a practice, and it would also allow voters to be sent runoff along with their general mail ballots.