Bill aimed at increasing transparency could sow chaos for election officials, experts say

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Key Texas lawmakers are reviving legislation that would require election officials to respond within set time frames to requests to explain “election irregularities” from certain party officials and election workers.

If the complainants aren’t satisfied, the bill would let them take their requests to the Texas Secretary of State’s Office, which would have to decide whether to investigate further and conduct an audit.

State Sen. Paul Bettencourt, a Houston Republican who authored the bill, said it will help clear up “any misunderstanding” about elections.

But experts and local election officials said Texas already has policies in place that have increased election transparency and security.

The bill, they said, could instead undermine voters’ trust if election officials have to prioritize an influx of meritless complaints. The measure would also add to the burdens on election officials who are already contending with a flood of public records requests, questions from residents worried about election integrity, and voter challenges, while also trying to comply with strict election deadlines set by state and federal laws, experts said.

“It's difficult to see how this is anything other than just a really cumbersome administrative process that's just going to in a lot of ways throw sand in the gears of election administration,” said Daniel Griffith, senior director of policy at Secure Democracy, a nonprofit organization that produces research and analysis focused on voting and elections.

Bettencourt first filed a similar bill in 2021 and reintroduced it in 2023. Both times, it passed in the Senate but not the House. Senate Bill 505, which he filed last month, is identical to his 2023 legislation.

The bill would allow candidates, county party chairs, election or alternate judges — election judges are tasked with supervising polling locations — and leaders of political action committees to request that election officials “provide an explanation to election irregularities or violations of the law and to provide supporting documentation” of such.

Bettencourt said problems during Harris County’s November 2022 election prove such a measure is needed.

The county, home to Houston, is the state’s most populous. During that election, the county’s elections department failed to provide sufficient paper to two dozen of the county’s more than 700 polling locations. There were also reports of malfunctioning equipment at various locations, long lines and polling locations that had late openings.

Citing the problems, multiple losing Republican candidates challenged the results of that election. A judge ordered a redo of the election for one race. After that election, Bettencourt championed legislation that abolished the Harris elections administration department and returned election duties to the county clerk, an elected official.

Bettencourt said that for months after that election, county election officials “refused to answer questions.” The bill would help prevent that, he said. He also pointed to more recent incidents in Dallas County, another Democratic stronghold, involving false claims by Dallas County Republican leaders who said that the voting equipment had not been certified by state officials. Bettencourt said “miscommunication” between the party and the elections office fueled the problems, and he thinks his bill would help in situations like that.

“This sets up an organized structure for people to ask questions, get answers, and then if the answers aren't suitable or not getting any answers they can go to the secretary of state,” Bettencourt said.

The latest bill is part of a legislative package — which includes other election measures, such as penalties for election officials who fail to comply with election laws and one that would prevent the distribution of unsolicited voter registration cards — supported and written by seven other Republican senators: Brandon Creighton, Joan Huffman, Lois Kolkhorst, Mayes Middleton, Tan Parker, Angela Paxton, and Charles Perry. Several have been members of the Senate State Affairs Committee.

The committee discusses and helps decide which election legislation moves forward in the Senate chamber.

Bill requires election audits, fines in certain cases

According to the legislation, once party officials or election workers submit a request, election officials would have 20 days to respond. If that person isn’t satisfied with the response, the bill states, they can ask for more information. The election official at that point would have 10 additional days to respond further.

Then, if a requester is still not satisfied, they “may issue a request to the secretary of state for an audit of the issue.” Such a request for an audit must include copies of communications and responses provided by the election official.

The secretary of state will then determine if the information provided “sufficiently explains the irregularity identified,” the bill says. If the secretary of state concludes it isn’t, that office must “immediately begin an audit of the identified irregularity at the expense of the county or other authority conducting the election.”

The secretary of state’s office is already required to audit the elections of four counties that are randomly selected every two years. Elections in Harris County have been audited twice recently by the agency.

The Secretary of State’s Office declined to comment on the legislation.

In a fiscal note about Bettencourt’s 2023 bill, the Secretary of State’s Office anticipated multiple audits would require “substantial document review and analysis, labor ­intensive work, and travel to the applicable locations.” In addition, according to the fiscal note, the office would need six additional full-time employees.

Bettencourt told Votebeat a new cost analysis would have to be done next year as the bill moves through the legislative process.

There would also be additional costs to county taxpayers if the secretary of state finds violations of election law. In such cases, the office would then be permitted to appoint a conservator to oversee elections in the county, at the county’s expense. And if county election officials do not remedy the violations, they could incur fines starting at $500 per violation, the bill states.

How Bettencourt’s bill would impact election officials 

Election officials are already required to keep detailed documentation for nearly every step of the election process. Human error, technical problems, and minor irregularities occur during every election in some form, and officials are required to identify the issues and respond.

Election administrators answer to bipartisan election boards and commissions. They have to respond to questions from members of the counties’ commissioners court, who set the budgets for election departments. Election officials respond to public records requests submitted by members of the public, which also have to be fulfilled within a specific time frame by law.

And the law already allows the Texas secretary of state, who is the chief election officer, to report any legitimate evidence of illegality or malfeasance to the Texas Attorney General’s Office for investigation.

Nonetheless, in recent years, election officials across the state report contending with streams of requests from organized conservative activists who have claimed laws aren’t being followed, or the process is flawed. No matter what information they provide, they said they are sometimes unable to satisfy people.

That’s why some election officials said, as it stands now, the bill’s effort to increase transparency would instead create additional hardships.

During the March 5 primary election, Bruce Sherbet, the Collin County elections administrator, was also preparing for a city school district election happening in May and the primary runoff election that same month. The county had another election looming in June.

Sherbet said he can’t fathom how election officials could handle more requests for information in the midst of such election preparations.

He added that depending on the type and timing of requests, some documentation may not be available for public inspection, may need redactions, or simply may not exist.

“I can see it as an invitation for abuse and both parties could be a part of that abuse,” Sherbet said. “Where does it stop? And where do you have time to do the job that you have to do?”

For his part, Bettencourt said his intent is not to create more work for election officials. He said that’s why the bill limits who can submit the requests to individuals involved with the election, including election judges and alternate judges. Those are the individuals responsible for supervising polling locations.

Those categories, though, still include substantial numbers of people. During the Nov. 5 election 117 judges and 117 alternate judges worked in Collin County. The bill would allow all of them to submit requests at any point during the election, Sherbet said. "It's going to cause bigger mistakes to happen, or noncompliance," he said.

He’s also concerned that this could further undermine trust in the process. The complaints and requests made to election officials would also become public record. Voters would have access to all of them whether or not they have merit.

“It's not building confidence at all. What it's doing is further harming the confidence of the election that we're trying to turn a corner and get back on track again from the 2020 election,” Sherbet said.

Natalia Contreras covers election administration and voting access for Votebeat in partnership with the Texas Tribune. She is based in Corpus Christi. Contact Natalia at ncontreras@votebeat.org

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