From the Polls to Prison: A New Front in the War Against Voting Rights

by Voting Rights Lab

May 26, 2021

Issues: Election Crimes

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The biennial Texas legislative session, concluding at the end of the month, has seen lawmakers open up a new front in the ongoing national war for voter suppression. Legislators have proposed numerous bills seeking to create or raise criminal penalties for actions by voters, individuals providing voter assistance, and election officials.

No bill illustrates the trend toward greater criminalization of elections more clearly than Texas’s priority election omnibus, Senate Bill 7. At various points in the legislative process, this bill has proposed to create or increase the severity of nearly 20 election-related offenses.

The Senate’s version of Senate Bill 7 created a new offense aimed at organized ballot collection. While some of the proposed provisions targeted conduct related to such organized activity, others outlawed actions that would not necessarily connect to an organized effort. For example, one provision outlawed the simple act of possessing another person’s mail ballot, even if that person is a caregiver to the voter. The Senate version would make any of the ballot collection offenses a third degree felony punishable by up to 10 years of incarceration, the same level of punishment Texas imposes on individuals convicted of kidnapping.

Once the bill reached the House, lawmakers there took the unusual step of replacing the bill’s language in its entirety with the language of the now-defunct House Bill 6. The amendments added numerous election-related offenses to the bill. The House version would punish election officials for sending mail ballot applications to voters or removing disruptive poll watchers from polling locations. Voter assistants would face felony charges for simply failing to complete new, complicated forms, which could also lead to the rejection of the voter’s ballot through no fault of their own.

A conference committee will determine how many of the criminal provisions remain in the final version of the bill that is expected to be unveiled this week.

Other bills advancing in the Texas legislature propose felony penalties as high as those for offenses like manslaughter or robbery for actions like election officials failing to count valid votes or making errors in voter registration list maintenance or individuals merely offering to provide voter assistance. In total, 32 bills were introduced in Texas this session that would create new criminal offenses related to voting.

The threat of felony prosecution will certainly have a chilling effect on qualified and dedicated individuals serving as election officials and poll workers. Similarly, proposals to punish voter assistance threaten to deny seniors and voters with disabilities with needed help to cast their ballots.

Texas reflects the nationwide trend towards using criminal prosecution to amplify the well-documented efforts of lawmakers to make voting more difficult this session. In total, VRL is tracking 171 bills in 42 states that would create new election-related crimes or increase the severity of punishment for existing crimes.

  • In Arizona, lawmakers are poised to pass a bill that would make it a Class 5 felony for election officials to send a mail ballot to a voter who is not on the permanent early voting list (PEVL) and did not first apply for the ballot.
  • A notorious provision in the Georgia elections omnibus criminalizes providing food and water to voters standing in line. Less well-known provisions in the bill create new felonies for various actions related to voter assistance.
  • Iowa’s election bill, signed by Governor Reynolds in February, creates a new felony offense for election officials failing to perform list maintenance duties and several misdemeanors for other actions by election officials.
  • A Kansas bill enacted earlier this month creates a new felony offense for a third party to return a mail ballot for a voter without the voter and the third party completing newly-required affidavits.
  • Other bills would increase the likelihood of individuals being prosecuted for existing felonies. An Arkansas bill enacted this session creates a presumption of intent to defraud a voter — punishable as a felony — if a person possesses more than four absentee ballots.

In states across the country, lawmakers are not satisfied with enacting new barriers to our freedom to vote. These lawmakers now threaten our very freedom from confinement. Additionally, individuals convicted of the new felonies are likely to lose their eligibility to vote, as all but two states make individuals convicted of felonies ineligible to vote following conviction.

Newly created election crimes and enhanced penalties target voters who need the freedom to vote by mail and who require assistance to do so, such as seniors, voters with disabilities, and military voters on active duty. The spectre of criminal prosecution for election officials failing to maintain the list of registered voters to the satisfaction of state officials, many of whom are elected partisans, could lead to overzealous purges of registered voters that typically affect voters of color disproportionately.

The growing nationwide trend this session to limit voter access is bad enough. But, layering strict criminal penalties on top of those limitations to access would create a pill that our democracy may prove unable to swallow. Voting rights advocates should vigorously oppose the imposition of new criminal provisions related to elections we’re seeing in Texas and across the country.

For a national landscape of pending and enacted election crimes bills from this session, check out the Election Crimes page on our State Voting Rights Tracker. And if you want a tutorial on how to use our Comprehensive Bill Search to explore this and other trends in voting legislation, just reach out to us at tracker@votingrightslab.org.