Comparison of Contents of Texas Senate Bill 7 as Passed by Each Chamber

by Voting Rights Lab

June 1, 2021

States: Texas

SUMMARY OF PROVISIONS IN EACH VERSION

As amended and passed by the House on second reading in the early morning hours of May 7, 2021, and passed finally following third reading on May 7, 2021, SB 7:

  • Threatens election officials with criminal prosecution for enacting procedures to increase voter freedom
  • Threatens advocacy groups and individuals with felony prosecution for providing needed assistance to voters at polling locations and with mail ballots
  • Limits the ability of election judges to remove disruptive partisan poll watchers
  • Allows partisan poll watchers to take election officials to court over perceived obstruction
  • Strictly limits the type of assistance a person may provide a voter when casting their ballot
  • Requires election officials to provide an online system for voters to track mail ballots and to provide voters notice of issues with their mail ballots and an opportunity to fix those issues

The version of SB 7 passed by the Senate on April 1, 2021, would:

  • Require individuals assisting voters inside polling places, curbside voters, and mail ballot voters to complete new documentation
  • Allow partisan poll watchers to record voters receiving assistance
  • Prohibit mobile, outdoor, and drive through voting locations
  • Require voters applying for mail ballots due to disability to affirm their disability on the application.
  • Limit early voting hours
  • Limit the discretion of election officials in metropolitan counties to provide polling places where necessary to provide sufficient voter access
  • Requires election officials to provide an online system for voters to track mail ballots and voting machines to produce an auditable paper trail of the votes cast

COMPREHENSIVE REVIEW OF PROVISIONS OF EACH VERSION

SB 7, as amended and engrossed by the House on May 7, would:

Voter Assistance

The bill creates new documentation requirements for individuals providing assistance to voters with mail ballots and at polling locations. The bill also creates new criminal offenses aimed at individuals providing assistance.

  • Create a new standard form and oath for third parties assisting voters to complete. The form must be completed when assisting a person voting in person or by mail. The form would be incorporated into the standard form on a mail ballot carrier envelope.
    • Amendments passed on May 7 are contradictory regarding the contents of the voter assistance form. The final House version of the bill will need to resolve the contradiction.
      • House Amendment 5 (Cain/Schofield) would require the assistant to provide their name and address and the relationship of the assistant to the voter. 
      • House Amendment 19 (Clardy) would require that information plus the manner in which the person is assisting the voter, the reason assistance is necessary, and whether the assistant is being compensated to provide assistance. 
  • Change the standard oath for voter assistants to include language for the assistant to affirm they have not pressured or intimidated the voter to make any particular choices when voting. The oath would also contain language that the assistant will not communicate how the voter voted and that the assistant understands that unlawful assistance may void the ballot.
  • Make failure by an assistant to complete the oath or form when assisting a voter voting by mail a state jail felony unless the assistant is related to the voter within the second degree by affinity or the third degree by consanguinity or a previously known attendant, caregiver, or friend assisting a disable voter. 
  • Make a false statement in connection with the voter assistance oath a class A misdemeanor. If the prosecution can prove the individual made a false statement in connection with assisting three or more voters in a four year period, the offense is punishable as a state jail felony.
  • Allow an eligible individual to receive assistance reading or marking a ballot. Existing law only allows assistance with marking a ballot.
  • Create state jail felonies for individuals to solicit, receive, or accept compensation for assisting voters or collecting ballots. The bill would also prohibit an individual to compensate or offer to compensate anyone for the same activities. An officer, director, or agent of an entity committing the prohibited acts would also be guilty of the offense. The bill makes an exception to allow election officials to publish a link to an absentee ballot application on an internet website.
  • Make providing “vote harvesting services” for compensation and providing compensation for “vote harvesting services” class A misdemeanors. The bill would define “vote harvesting services” as “direct interaction with one or more voters in connection with an official ballot, ballot by mail, or an application for ballot by mail that are performed with the intention that ballot be cast for a specific candidate or measure.”
    • The penalties above conform with the amendments in HA 4 (Cain/Schofield). HA 6 (Murr) would make the vote harvesting offenses state jail felonies.
  • Make knowingly collecting or possessing a ballot in connection with “vote harvesting services” a class A misdemeanor.
    • The penalties above conform with the amendments in HA 4 (Cain/Schofield). HA 6 (Murr) would make the vote harvesting offenses state jail felonies.

Poll Watchers

The bill gives partisan poll watchers greater authority in polling locations and threatens election officials with criminal charges if they remove or obstruct poll watchers.

  • Make an election officer’s failure to accept an authorized poll watcher a Class B misdemeanor.
  • Make the removal of a poll watcher for any reason other than an offense related to the conduct of an election a class A misdemeanor.
  • Limits the ability of an election judge to remove a poll watcher to circumstances when a judge or clerk observes the watcher violate the law after having been previously warned regarding a violation of law. Watchers who believe they’ve been obstructed may seek an injunction, mandamus, or other judicial relief.
  • Allow police to be called to remove a poll watcher committing a breach of peace.
  • Provides that poll watchers may observe and report on irregularities in the conduct of an election, but may not interfere with the conduct of an election or obstruct the electoral process.
  • Prohibit photographing ballots, the marking of ballots, and private information contained on ballots.
  • Allow watchers to follow the transfer of election materials from the polling place to places where the materials are counted/processed. The bill would also allow poll watchers to observe the in person return of mail ballots by voters on Election Day.

Criminal Provisions Involving Election Officials

The bill would prohibit election officials to enact procedures to increase voter access and enforce those prohibitions with criminal offenses.

  • Make the issuance by an election judge of a provisional ballot affidavit containing information the judge knows to be false to a voter a state jail felony.
  • Add “counting invalid votes”, “failing to count valid votes”, “altering the ballot of another or otherwise causing a ballot to not reflect the intent of the voter”, “preventing a voter from casting a legal ballot in an election they are eligible to vote in”, and “ giving a voter false information to prevent them from voting in an election they are eligible to vote in”  to the list of conduct that can constitute election fraud. The bill would also raise the severity of the offense of election fraud from a class A misdemeanor to a state jail felony. The bill does not define what constitutes a “valid” or “invalid” vote for the purposes of criminal enforcement.
  • Create a state jail felony offense for perjury in connection with election procedures.
  • Prohibit an early voting clerk, subject to punishment as a state jail felony, to:
    • Solicit the submission of an application by a person who did not request one,
    • Distribute an application to a person who did not request one unless otherwise authorized by law,
    • Authorize the expenditure of public funds to facilitate third party distribution of an application to a person who did not request one, or
    • Complete any portion of an application to vote by mail and distribute the application with intent that the applicant will return the application to the early voting clerk.
    • The bill would create exceptions to allow officials to provide a person or the public general information about voting by mail, the voting by mail process, and deadlines.
  • Prohibit an early voting clerk or other election official to distribute mail ballots or balloting materials to anyone who did not first apply for them. A violation of the prohibition would be a class A misdemeanor.

Mail Voting

The bill would create a system for voters to track the progress of their mail ballot applications and ballots. The bill would also create a process for voters to be notified of minor issues with their mail ballots and to be given an opportunity to correct the issue.

  • Require the Secretary of State to develop and maintain an online tracking system to allow a voter to track the status of their early voting by mail application and ballot. The voter would be required to provide: 1) their registration number or address, 2) the last four digits of their Social Security number, and 3) a driver’s license or personal identification number issued by the Department of Public Safety. The system would provide updates when the voter’s early voting by mail ballot application is received by the early voting clerk, when the application is accepted or rejected, when the clerk mails the ballot materials to the voter, when the clerk receives the completed ballot from the voter, and when the early voting ballot board accepts or rejects the voter’s ballot.
  • Create pre-processing requirements for mail ballots. The bill would allows all jurisdictions to begin delivering mail ballots to the EVBB 13 days before ED. The bill requires EVBBs to begin delivering ballots seven days before Election Day and requires delivery to occur daily through Election Day. All ballots received by seven days before Election Day must be verified no later than four days before Election Day.
  • Create a process to notify voters of issues with their mail ballots and allow them an opportunity to correct the ballot to have it counted. Voters would be notified of errors within one business day of discovery of the error by the EVBB. MIssing and mismatched signatures may be cured by a cure attestation form. The voter must provide a DPS number or the last four digits of their Social Security number to verify their identity on the attestation form. Voters may submit the necessary form in person, or by fax, mail, or email. Voters have until nine days after Election Day to submit the form.

Miscellaneous Criminal Provisions

  • Clarify the intent required for illegal voting to include that the voter must be aware of the circumstances that make them ineligible to vote (Crystal Mason amendment)
  • Require a sentencing judge to inform a person convicted of a felony how the conviction will affect their right to vote.
  • Create voter registration portability by requiring a registrar who receives information that a voter has moved to another county to forward the information along with the voter’s original voter registration application to the registrar in the new county. The registrars must coordinate the cancellation of the registration in the old county and creation of a new registration in the new county.
  • Prohibit a public official to knowingly alter or suspend an election procedure mandated by law or rule.
  • Establish that voting in a Texas election and another state’s election conducted on the same day constitutes the offense of illegal voting, a state jail felony.
  • Give priority to docketing and hearing cases seeking injunctive relief for election-related conduct in district courts, courts of appeals, and the Texas Supreme Court within 70 days of elections. The bill would require hearings within 48 hours of a request by a party or the submission of a final brief in a case.
  • Require courts to assign judges for hearings in elections-related cases on a random basis. The bill would make it a class A misdemeanor for a person to speak to a clerk in any way to influence a judicial assignment for an elections-related case.

Miscellaneous Election Administration Provisions

  • Require local registrars of deaths and county clerks to provide abstracts of death certificates and probate applications within seven days of their preparation. Existing law allows these items to be sent within 10 days of preparation.
  • Require election officers to maintain a log of all paper ballots issued and spoiled at polling locations using electronic voting systems that use paper ballots to record votes cast.
  • Require county election officials to post information on their website regarding dates and polling locations in upcoming elections. The officials would also post election results on their website.
  • Require the Secretary of State to maintain information regarding elections and candidates online.
  • Provide voter registration forms to public high schools twice a year.
  • Prohibit employers to prevent employees from taking time off to vote during the early voting period.
  • Make the provisions of the bill severable. If one section of the bill is declared unenforceable, the remaining provisions would maintain the effect of law.

In its previous form, SB 7, as engrossed by the Senate on April 1, 2021, would:

In-Person Voting

The bill would limit early voting hours and prevent local election officials from providing voting options reactive to the needs of their voters.

  • Limit early voting hours at main and branch early voting locations during the last week of early voting to 12 hours per day from 6 a.m. to 9 p.m. The bill would also lower the population threshold for a county to provide mandatory extended early voting hours during the last week of early voting from 100,000 to 30,000. 
  • Establish a formula for the distribution of countywide polling place locations in counties with populations over 1 million based on dividing the number of voters in each district in the previous election by the number of voters in the county in the previous election to determine a percentage of polling locations to place in each district. The bill would require poll workers and equipment to be divided roughly evenly between all countywide polling locations, with no more than 5% deviation between polling locations.
  • Require counties with populations over 1 million to apply the same methodology for distribution of countywide polling place locations to the distribution of temporary branch early voting locations. 
  • Prohibit mobile, outdoor, and drive through polling locations.

Mail Voting

The bill would create new barriers for mail voters and prevent election officials from providing needed assistance for voters such as seniors and voters with disabilities who need to vote by mail.

  • Prohibit early voting clerks to solicit individuals to complete a mail ballot application. The bill also prohibits any state or local election official to send unsolicited ballot applications to voters or to use public funds to facilitate a third party to do so. The bill does not define what is meant by “solicit” or “facilitate.”
  • Require voters applying for mail ballots due to disability to affirm their disability on the application. 
  • Require mail ballots returned by hand to be delivered to a person. The bill would prohibit the use of any unstaffed drop box to collect mail ballots.
  • Require the Secretary of State to develop and maintain an online tracking system to allow a voter to track the status of their early voting by mail application and ballot. The voter would be required to provide: 1) their registration number or address, and 2) a driver’s license or personal identification number issued by the Department of Public Safety or their social security number. The system would provide updates when the voter’s early voting by mail ballot application is received by the early voting clerk, when the application is accepted or rejected, when the clerk mails the ballot materials to the voter, when the clerk receives the completed ballot from the voter, and when the early voting ballot board accepts or rejects the voter’s ballot.
  • Require voters for whom records indicate they applied for a mail ballot to cast a provisional ballot in person unless the voter returns the unvoted ballot. Existing law allows voters to sign a statement and vote a regular ballot if the ballot was never delivered or the voter did not apply for a mail ballot. 
  • Make providing “vote harvesting services” for compensation and providing compensation for “vote harvesting services” felonies of the third degree. The bill would define “vote harvesting services” as “direct interaction with one or more voters in connection with an official ballot, ballot by mail, or an application for ballot by mail that are performed with the intention that ballot be cast for a specific candidate or measure.” The bill would also create a civil action for candidates to seek money damages due to “voter harvesting services.” 
  • Make knowingly collecting or possessing a ballot in connection with “vote harvesting services” a felony of the third degree.

Voter Assistance

The bill would create new documentation requirements for individuals providing assistance to voters casting their ballots inside the polling place, curbside, or by mail ballot.

  • Require any person providing voter assistance to complete a form including their name and address, the manner of assistance they provide, the reason for assistance, and their relationship to the voter. The bill would require this form from individuals assisting in-person and mail voters.
  • Require persons driving three or more curbside voters at one time to a polling location to complete a form attesting whether they are simply driving the curbside voters or are also providing voter assistance. The form would not be required if the driver is related within a certain degree to the voters. 
  • Allow a person to remain in the vehicle while an eligible curbside voter completes their ballot only if the person would be eligible to accompany the voter into the voting station. 

Poll Watchers

The bill would grant partisan poll watchers broad authority in polling locations, including the ability to record voters in the act of voting. The bill would threaten election officials with criminal charges for removing disruptive poll watchers.

  • Require poll watchers to be allowed to stand close enough to voting and canvassing activities to be able to see and hear the activities. Poll watchers may not be denied free movement in polling locations and ballot verification and counting locations, except they may not accompany the voter into the voting station while they complete their ballot.
  • Eliminate the prohibition for poll watchers to have devices to record sound and images. Watchers may record any activity in the polling location except for the voter completing their ballot in the polling station. The bill would allow the recording of a voter in the voting station if the watcher reasonably believes the voter is receiving unlawful assistance. The bill would prohibit the poll watcher to distribute or share images or audio from the polling location with anyone other than the Secretary of State. 
  • Create Class A misdemeanor offenses for: 1) distancing or obstructing the view of a watcher in a manner to make observation ineffective, or 2) refusing to accept an eligible individual as a watcher in a polling location or verification and counting location. 
  • Allow poll watchers and their appointing authority to obtain injunctive relief to enforce Code provisions concerning their access. 

Miscellaneous Provisions

  • Add counting votes a person knows are invalid and refusing to count valid votes to the conduct that can constitute the offense of election fraud.
  • Establish a system of Secretary of State oversight of local registrar list maintenance activities. The Secretary of State would send notice to a local registrar of “errors” in list maintenance related to the suspense list of voters who have received address confirmation notices and have not responded and information indicating a registered voter is a non-citizen. If the registrar fails to act on the notice within 30 days, the Secretary would correct the issue for the registrar. The registrar would be liable for a civil penalty of $100 per violation and could face possible termination.
  • Require registrars to send notices requiring confirmation of citizenship status upon receipt of any information indicating the voter is not a citizen. Existing law only requires the sending of notices when a person is excused from jury service for lack of citizenship. 
  • Require the Secretary of State to refer all notices of unlawful registration received from local registrars to the Attorney General for possible criminal prosecution.
  • Require sentencing judges in felony cases to instruct convicted individuals of the impact of the felony conviction on their voting eligibility. 
  • Requires voting systems to produce an auditable paper trail. The bill would also provide funds to retrofit existing equipment that does not currently produce an auditable paper trail, should federal or state funds be available. 
  • Subject election officials who violate provisions of the Election Code to civil penalties, including possible termination. 
  • Require the Secretary of State to approve any private donation to assist a local election authority with election administration in excess of $1,000. The bill would require the Secretary to seek the unanimous consent of the Governor, Lieutenant Governor, and Speaker of the House to approve any such donation.