Editor's note: This story has updated to note that the Texas Senate has given final approval to Senate Bill 5.
The Texas Senate tentatively approved a bill Wednesday aiming to crack down on mail-in ballot fraud, largely by beefing up criminal penalties — a response to voting irregularities in Dallas County.
With a 21-10 vote, the chamber advanced the bill mostly along party lines. Several Democrats said they initially planned to back it, but they voted against the proposal due to a section that appeared to criminalize certain political discussions between family members “in the presence of” a mail-in ballot.
“There is the possibility that a family member looking over my shoulder — saying you should vote for Sen. Van Taylor — that individual would be in violation of this section of the law,” said Sen. Royce West, D-Dallas. “I see this as a potential trap for senior citizens."
The bill, among the items Gov. Greg Abbott placed on his call for the special legislative session, still requires a final Senate vote before it goes to the House. (Update, July 26: The bill has officially passed the Senate and will now head to the House.)
The chamber’s vote comes amid an investigation of mail-in ballot irregularities affecting city council races in Dallas, where 700 suspicious ballots were sequestered after the county’s district attorney received an “off-the-charts” number of complaints from voters, according to news reports.
Many people — especially in West Dallas — said they received mail-in ballots they didn’t request and feared that someone else voted in their place. Earlier this month, a grand jury indicted a man for allegedly taking a Dallas woman’s blank mail-in ballot, filling in a candidate’s name, and delivering it to the county’s election department.
The focus on absentee balloting puts the Republican-dominated Legislature on a new path for changing the voting process by addressing a documented vulnerability in Texas elections. Previously, lawmakers targeted rare in-person election fraud with voter ID legislation that was eventually blocked by federal courts.
State law allows Texans with disabilities, those who are at least 65 years old or those who plan to be out of their home county during voting to request a mail-in ballot, and that process falls outside of voter ID requirements.
Hancock’s bill would widen the definition of mail-in ballot fraud, boost penalties for certain offenses, strengthen rules for signature verification and require election judges to notify voters when ballots are rejected. It would also limit who could assist mail-in voters.
The bill would create a state jail felony — carrying up to two years in jail — for anyone who provided false information on an application for a mail-in ballot; intentionally caused false information to be provided on a ballot application; or knowingly submitted or altered a ballot application without a voter’s knowledge. The bill would increase penalties for offenses involving voters older than 65.
Proponents of the bill — including representatives with the state Republican Party and Texas Association of Election Administrators — say it would protect the votes of elderly and disabled Texans who are most likely to be targeted by those who abuse the mail-in balloting system. County prosecutors rarely spend much energy prosecuting mail-in balloting fraud, they said, because the current penalties are too soft.
Some voting rights groups, such as the ACLU of Texas and the League of Women Voters, have called the enhanced penalties too harsh.
On Wednesday, Senate Democrats said they backed the main thrust of the bill, but they voted against it because the definition of “election fraud” would include anyone who sought to “influence the independent exercise of the vote of another in the presence of the ballot or during the voting process.”
The bill would treat such offenses as Class A misdemeanors, punishable by up to one year in jail and up to $4,000 in fines. Repeat offenders or those illegally influencing voters aged 65 and older would get stiffer penalties.
West, along with others Democrats — including Sens. Judith Zaffirini, of Laredo, and José Rodríguez of El Paso — asked if that provision applied to family members or roommates discussing candidate choices while a mail-in ballot was nearby, perhaps around a dining room table.
“Under this particular section, both of them could be charged with a particular offense, because they were assisting one another in filling out their ballots,” West said, pointing out that other sections of that bill carried exceptions for family members — but not the section in dispute.
Hancock confirmed the fraud definition would apply to voters filling out ballots at home, the same as it would for voters being influenced at the polls.
“In this particular section, once you have your ballot, you’re treated as any other citizen who has a ballot,” he said. “When we’re dealing with the disabled, when we’re dealing with the elderly, I think they deserve the same privacy and protection as every other voter.”
Hancock also suggested family members were unlikely to bring forward allegations of voter fraud originating at dining room tables.
Ahead of the chamber’s vote, West read an email that he said Randall Miller, a prosecutor in the Dallas County District Attorney’s office, sent. “The section is such a broad criminal offense that there is potential for abuse,” said West, reading from the email (West showed the email to a Texas Tribune reporter but declined to forward it).
Democrats offered several amendments to address concerns about prosecutions under such circumstances, but Hancock and his fellow Republicans shot them down.
“I fully admit this is not the perfect legislation,” Hancock said. “I do possibly anticipate changes from the House.”
Emma Platoff and Shannon Najmabadi contributed to this story.
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Allowing all mail-in votes for elections is legal in 22 states, but not in Texas, where only certain voters can mail in their ballots. The Legislature's special session will address mail-in ballot fraud but won't expand mail-in voting. [Full story]