A Little Less Conversation: Texas Bill Could Criminalize Family Conversations About VBM Ballots

[Image via 45cat]

As the number of vote-by-mail ballots grows across the country, there is growing concern about what that might mean in terms of protecting the integrity of the voting process. Yesterday, the Texas Senate passed a bill that would make it a crime to influence someone’s VBM ballot – even despite objections the bill could make it a crime for family members to have a discussion in the presence of such a ballot. The Texas Tribune’ Jim Malewitz first flagged this on Twitter yesterday and filed this story:

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.

“Any attempt to scam the system,” said Sen. Kelly Hancock, R-North Richland Hills, who authored Senate Bill 5, “must be addressed accordingly.”

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…

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. 

Democrats in the chamber expressed concern about the reach of the proposal:

“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…”

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…

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).

In response, Hancock did say those conversations could potentially violate the law, but reaffirmed the importance of protecting the ballot and minimized the likelihood of family members reporting one another:

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.

The bill now moves to the House, where opponents may have another chance to modify its broad sweep:

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.” 

The Election Law Blog’s Rick Hasen suggests that while the bill is a welcome step toward protecting the integrity of VBM ballots, the text as currently written could violate voters’ First Amendment rights – meaning that the bill, if it passes in its current form, could invite litigation in the Lone Star State.

With VBM on the rise nationally, the Texas debate could be a tone-setter for similar discussions in other state capitols nationwide … stay tuned.

 

 

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