Fresh off their success passing legislation to tighten Texas voting laws, Republicans in the Texas Senate are working to hastily push through a bill filed just two days ago that would pave the way for county audits of the 2020 general election and set new rules for handling charges of irregularity in future elections.
The Texas Senate signed off on Senate Bill 97 on a 17-14 vote Thursday to create a new county-level auditing process for elections and give all state or county party officials the ability to trigger mandatory reviews. It was filed by state Sen. Paul Bettencourt, R-Houston, who has acknowledged the Senate is “operating a little bit at warp speed” to move the legislation in the waning days of the special legislative session.
The bill was filed Tuesday, the same day the Senate suspended three rules so the legislation could be considered in committee the next morning. It was voted out Wednesday by the Republican-majority committee, setting it up to reach the Senate floor Thursday, where more rules were suspended to grant it swift passage.
It’s unclear whether the bill will make it to the governor’s desk before the end of the special session on Sunday. An identical bill was filed in the House on Wednesday but has not yet moved forward in that chamber.
“This bill, SB 97, is about election irregularities, giving a chance for the people involved to ask questions,” Bettencourt said before the Senate’s vote. “This is not about anything else except what gets measured gets fixed because if we know why they’ve had that discrepancy, we can fix the problem in the future.”
[…]
Under SB 97, state or county party chairs could mandate a review of the 2020 election simply by submitting a request in writing to a county clerk. Those election officials would then be responsible for forming an “election review advisory committee” based on a list of voters in the county submitted by Republican and Democratic county chairs.
The review would generally include all in-person and mail ballots from Election Day in randomly selected county precincts and some early voting ballots, giving committee members access to all of the ballots cast in three to five races, one of which must be for a federal office, a statewide office or a county office.
The Texas secretary of state would be charged with setting an “acceptable margin of error” between ballots and the final vote counts. Discrepancies outside the margin of error would trigger additional reviews, including a countywide audit for races for federal, statewide or county offices.
Audit results outside the margin of error would prompt an analysis by the secretary of state to determine likely causes for the discrepancies and recommended corrective action.
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. If a violation is identified, the state can issue $500 penalties for each violation that is not corrected by the county clerk within 30 days.
It’s not as stupid and cynical as the fraudit proposed by Rep. Steve Toth, but it’s still stupid and cynical and completely unnecessary. It’s designed to sow doubt and uncertainty, and it’s going to be another hassle and unreimbursed expense for county election officials to deal with. Specifically, this is aimed at the big urban Democratic counties, though I suppose there’s nothing stopping Democrats in the other counties from doing the same thing. There may or may not be time for this to get a vote in the House even with the ridiculous speed this was given in the Senate, but there will be at least one more special session, and Greg Abbott wants to put this on the agenda, he can.
Meanwhile, in other election law news …
The Hotze-Woodfill pair is at it again, with another lawsuit relating to voting by mail in Harris County. In an opening salvo for the current election-litigation season, Dr. Hotze is complaining to the Supremes about having received a written invitation from Isabel Longoria to apply for a mail-ballot based on registration records reflecting that he is above the age of 65. He avers that he has a habit of voting in person.
Which prompts us to ask: What’s your injury here, Doctor?
And what exactly is the nature of your emergency?
Also of interest: They are relying on witness testimony provided by Election Administrator Longoria to the Texas Lege (transcription in the appendix) and using those statements as “causus belli” or at least as admissions for purposes of establishing probable cause to bring an ultra-vires lawsuit against her, citing State v. Hollins for the proposition that Harris County Election Administrators are of the lawless kind. – A Gotcha, Girl! of sorts. (She was speaking out against the GOP election bill).
As an aside, Chris Hollins was the Harris County Clerk at the time, and the position of Election Administrator had not even yet been created. Moreover, there was a Rule 11 Agreement in that case, which had been brought by the AG in the name of the State (rather than by a private litigant such as Steven Hotze, a serial litigant) and that agreement allowed for the mass mailing of applications to go forward for the registertd voters over age 65 (all of whom are entitled to vote by mail regardless of health conditions/disability). The AG sued to stop Hollins from sending applications to all other registered voters.
With Dr. Hotze on the pleading this time: HON. SID MILLER, GERRY MONROE, RANDOLPH PRICE, ALAN HARTMAN, ALAN VERA, AND GREGORY BLUME
SCOTX CASE: 21-0751 In re Steven Hotze, MD, et al
https://search.txcourts.gov/Case.aspx?cn=21-0751&coa=cossup
TYPE OF FILING: Pet. of Writ of Mandamus and accompanying Emergency Motion for Temporary Relief filed Aug. 31, 2021. No answer has yet been filed as of 9/3 noon.
CASE TYPE: Election Code Mandamus against public official (Election Administrator of Harris County) seeking injunctive relief through a mandamus proceeding; no prior filing in COA shown on SCOTX docket. Note that an Election Code Mandamus is brought directly in the court of appeal as an original case, with no case first filed in a trial court. As such, it is not an appeal. There were several of those last year. State v. Hollins, however, on which Woodfill and his clients rely as case law authority, was not one of them. That was an injunction suit that originated in district court.
STATUTORY BASIS: Under the relevant provision of the Election Code, an appellate court “may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election … regardless of whether the person responsible for performing the duty is a public officer.” Tex. Elec. Code § 273.061.
THE WORST PART: ANOTHER ATTACK ON VOTERS IN HARRIS COUNTY
Not only are Hotze et al trying to invoke supreme court mandamus power (power to compel performance of duties) for the purpose of obtaining prohibitory injunctive relief, by-passing the court of appeals in the process; they are also seeking the disqualification of already-cast ballots. Among their wish list:
A supreme court order that …
“Respondent refrain from counting ballots received as a result of Respondent unlawfully sending an application to vote by mail that was not initially requested by the voter.”
Perhaps EA Longoria’s strategy is to get this issue litigated during a low-key election rather than any of the major ones in the 2022 cycle. After all, she had reason to expect the Hotze-Woodfill team to object, based on their past actions.