June 15, 2021

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Republicans want to change state election laws. Here’s how they’re doing it. – POLITICO

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Right now, there’s one key difference between the legislation in Georgia and Texas: Georgia’s became law, while Texas’ is stalled. But not for long: In an interview with Texas talk radio host Chad Hasty on Thursday, Republican Gov. Greg Abbott said a special legislative session to pass a new elections law will come soon.

Here is how the Georgia and Texas voting bills compared in five broad categories.

___

1. Targeting Democratic counties’ pandemic election responses

Both states seek to target practices that Democratic counties instituted in response to the pandemic, taking aim at Harris County in Texas and Fulton County in Georgia.

In Georgia

GA SB202: The superintendent of a county or the governing authority of a municipality shall have discretion to procure and provide portable or movable polling facilities of adequate size for any precinct; provided, however, that buses and other readily movable facilities shall only be used in emergencies declared by the Governor pursuant to Code Section 38-3-51 to supplement the capacity of the polling place where the emergency circumstance occurred.

The Georgia law effectively eliminates mobile voting — which began before the 2020 election, when Fulton County, which is home to Atlanta, deployed a pair of buses that had voting stations in them. The new law allows voting on a bus or other movable structure only when the governor declares an emergency.

In Texas

TX SB7: Early voting by personal appearance at the main early voting polling place shall be conducted on each weekday of [

the weekdays of
] the early voting period that is not a legal state holiday and for a period of at least nine hours, except that voting may not be conducted earlier than 6 a.m. or later than 9 p.m. [

during the hours that the county clerk’s or city secretary’s main business office is regularly open for business.
]

This provision, which codifies at least nine hours of early voting for many elections, also blocks 24-hour early voting, which Harris County — home of Democratic-trending Houston and the state’s most populous county — implemented during the 2020 election. Officials said 16,000 voters took advantage of it. Another part of the legislation requires Texas counties with at least 30,000 people to offer at least 12 hours of early voting in the final week before an election, extending a requirement that previously applied to bigger counties (at least 100,000 people).

TX SB7: Each polling place shall be located inside a building. A polling place may not be located in a tent or similar temporary moveable structure or in a facility primarily designed for motor vehicles. No voter may cast a vote from inside a motor vehicle unless the voter meets the requirements of Section 64. 009.

This provision also targets Harris County, which allowed “drive-thru” voting in November, in which all voters — regardless of disability status — remained in their cars to vote at polling sites like parking garages. Harris County said 128,000 voters used this option. The provision would still allow for curbside voting at polling places, which allows a limited group of voters to vote from their cars at regular polling sites.

2. Mail-in voting

Mail voting was drastically different in Georgia and Texas in 2020, and that remains the case after the latest round of legislation. Georgia has no-excuse absentee voting, which means that any voter may choose to vote by mail. Texas is one of the roughly dozen states that requires voters to have a valid excuse, like a medical condition or absence on Election Day, to request and cast a mail ballot.

Both states’ new election legislation added restrictions to the mail voting process.

In Georgia

Georgia’s law tightened the window for absentee voters to return their applications for mail-in ballots and added several limits on how absentee ballots and applications can be distributed and returned.

GA SB202: Except as otherwise provided in Code Section 21-2-219 or for advance voting described in subsection (d) of Code Section 21-2-385, not

more
earlier than

180
78 days or less than 11 days prior to the date of the primary or election, or runoff of either, in which the elector desires to vote, any absentee elector may make, either by mail, by facsimile transmission, by electronic transmission, or in person in the registrar’s or absentee ballot clerk’s office, an application for an official ballot of the elector’s precinct to be voted at such primary, election, or runoff.

Absentee ballot applications must now be returned between 78 and 11 days before Election Day. Before this law was passed, voters could request mail ballots from up to 180 days before an election to the Friday before Election Day. Many election officials have said that an earlier receipt deadline was necessary, because it was impossible to complete last-minute requests before the election.

GA SB202: A blank application for an absentee ballot shall be made available online by the Secretary of State and each election superintendent and registrar, but neither the Secretary of State, election superintendent, board of registrars, other governmental entity, nor employee or agent thereof shall send absentee ballot applications directly to any elector except upon request of such elector or a relative authorized to request an absentee ballot for such elector.

The ban on election officials sending absentee ballot request forms came after Republican Secretary of State Brad Raffensperger sent all Georgians one of the forms during the 2020 primary, which irritated many Republican leaders in the state.

Another part of the law also allows outside individuals and groups to distribute absentee ballot applications, but they must include a disclaimer about who sent the form and ensure they are only sending those forms to people who haven’t already requested or received a ballot.

GA SB202: Any person applying for an absentee-by-mail ballot shall make application in writing on the form made available by the Secretary of State. In order to confirm the identity of the voter, such form shall require the elector to provide his or her name, date of birth, address as registered, address where the elector wishes the ballot to be mailed, and the number of his or her Georgia driver’s license or identification card issued pursuant to Article 5 of Chapter 5 of Title 40. If such elector does not have a Georgia driver’s license or identification card issued pursuant to Article 5 of Chapter 5 of Title 40, the elector shall affirm this fact in the manner prescribed in the application and the elector shall provide a copy of a form of identification listed in subsection (c) of Code Section 21-2-417. The form made available by the Secretary of State shall include a space to affix a photocopy or electronic image of such identification.

Georgia’s law replaced the state’s signature-matching system with one that requires some form of government ID, including a photocopy of their ID on the application for an absentee ballot. If the voter does not have a state ID, they may use certain documents with their name and address. In the event of a mismatch between the voter’s application and their information on file, the state would give that voter a provisional ballot.

On the absentee ballot itself, voters must submit identifying information including their name and date of birth that will be used to match their ballots and their records. Voters who vote in person in Georgia are already required to present an ID.

A recent analysis from The Atlanta Journal-Constitution found that over 272,000 registered voters in the state did not have a driver’s license or state ID on file. Those voters were disproportionately Black.

GA SB202: A board of registrars or absentee ballot clerk shall establish at least one drop box as a means for absentee by mail electors to deliver their ballots to the board of registrars or absentee ballot clerk. A board of registrars or absentee ballot clerk may establish additional drop boxes, subject to the limitations of this Code section, but may only establish additional drop boxes totaling the lesser of either one drop box for every 100,000 active registered voters in the county or the number of advance voting locations in the county.

Georgia codified the use of drop boxes in state election law — but restricted their use compared to emergency measures put in place in 2020, especially in the metro-Atlanta area. The New York Times previously noted that, under the law, the four counties in the Atlanta area would go from 94 drop boxes used in the last election to — at most — 23.

In Texas

Republicans’ new bill proposed a tighter definition for who can vote by mail in Texas.

TX SB7: A qualified voter is eligible for early voting by mail if the voter is not capable of [

has a sickness or physical condition that prevents the voter from
] appearing at the polling place on election day without [

a likelihood of
] needing personal assistance or [

of
] injuring the voter’s health due to the voter’s: (1) illness; (2) injury; (3) medical confinement ordered by a health care professional; or (4) mental or physical disability.

Among the new reasons that would not qualify a voter to vote by mail: a lack of transportation or a requirement “to appear at the voter’s place of employment on election day.”

TX SB7: An early voting ballot application must include … the following information: (A) the number of the applicant’s driver’s license or personal identification card issued by the Department of Public Safety; (B) if the applicant has not been issued a number described by Paragraph (A), the last four digits of the applicant’s social security number; or (C) a statement by the applicant that the applicant has not been issued a number described by Paragraph (A) or {B) ;

Like Georgia, Texas now requires ID or other identifying information, and a signature, on a statement to request a ballot, as well as similar information to return the ballot.

TX SB7: UNLAWFUL SOLICITATION AND DISTRIBUTION OF APPLICATION TO VOTE BY MAIL. (a) A public official commits an offense if the official, while acting in an official capacity knowingly:(1) solicits the submission of an application to vote by mail from a person who did not request an application; (2) distributes an application to vote by mail to a person who did not request the application unless the distribution is expressly authorized by another provision of this code; (3) authorizes or approves the expenditure of public funds to facilitate third-party distribution of an application to vote by mail to a person who did not request the application; or (4) completes any portion of an application to vote by mail and distributes the application to an applicant.

The Texas bill proposed making it a felony for public officials to send ballot request forms en masse to voters who did not request them. The bill has carveouts for providing access on a website and for providing “general information about voting by mail.”

3. Early Voting

Both Georgia and Texas saw huge turnout for early in-person voting in 2020. The new legislation would make changes to the popular practice.

In Georgia

GA SB202: There shall be a period of advance voting that shall commence: (A) On the fourth Monday immediately prior to each primary or election; and

(B) On the fourth Monday immediately prior to a runoff from a general primary (C) On the fourth Monday immediately prior to a runoff from a general election in which there are candidates for a federal office on the ballot in the runoff; and (D)
(B) As soon as possible prior to a runoff from any

other
general primary or election

in which there are only state or county candidates on the ballot in the runoff
but no later than the second Monday immediately prior to such runoff and shall end on the Friday immediately prior to each primary, election, or runoff.

Voting shall be conducted

during normal business hours
beginning at 9 a.m. and ending at 5 p.m. on weekdays, other than observed state holidays, during such period and shall be conducted on the second

Saturday
and third Saturdays during the hours of 9 a.m. through 5 p.m. and, if the registrar or absentee ballot clerk so chooses, the second Sunday, the third Sunday, or both the second and third Sundays prior to a primary or election during the hours

of 9 a.m. through 4 p.m.
determined by the registrar or absentee ballot clerk, but no longer than 7 a.m. through 7 p.m.

Georgia’s in-person early voting law will likely maintain the status quo for early voting in large counties, especially in and around Atlanta, and will result in an increase in smaller counties that may not have previously offered as many weekend voting options. However, a separate section of the law shortened the state’s runoff period from 9 weeks to 4 weeks after a prior election — a shortened timetable which will result in fewer in-person early voting options during runoffs, like the ones that resulted in Democrats flipping two Senate seats in January.

In Texas

TX SB7: In a primary election or the general election for state and county officers in a county with a population of 30,000 [

100,000
] or more, the early voting clerk shall order voting by personal appearance [

voting
] at the main early voting polling place to be conducted on the last Saturday of the early voting period for at least 12 hours, except that voting may not be conducted earlier than 6 a.m. or later than 9 p.m., [

on the last Saturday
] and on the last Sunday of the early voting period for at least six [

five
] hours, except that voting may not be conducted earlier than 1 p.m. or later than 9 p.m [

on the last Sunday of the early voting period
].

This part of the Texas bill expands the number of counties required to have expanded weekend early voting. But it also includes the ban on 24-hour voting and targets “Souls to the Polls” efforts — voter participation drives popular in Black churches — by limiting early voting from starting no earlier than 1 p.m. on Sundays. Since the bill’s failure, Republicans leading the legislation have said that the provision was an error — though the bill’s author initially defended the 1 p.m. time.

4. Poll watchers

Both Georgia and Texas Republicans sought to empower poll watchers after the 2020 election. Poll watchers are commonplace across the country, but the practice gained newfound scrutiny after many Republican poll watchers chafed at pandemic-related restrictions. Issues regarding poll watchers’ access also helped fuel election-related conspiracy theories.

In Georgia

GA SB202: In counties or municipalities using direct recording electronic (DRE) voting systems or optical scanning voting systems, each political party may appoint two poll watchers in each primary or election, each political body may appoint two poll watchers in each election … to serve in the locations designated by the superintendent within the tabulating center. … The locations designated by the superintendent shall ensure that each poll watcher can fairly observe the procedures set forth in this Code section.

Poll watchers in Georgia now have the right to be positioned where they can “fairly observe” the tabulation process. Another section of the law allows poll watchers to observe election officials as they pre-process absentee ballots before Election Day, part of broader changes to allow faster counting of mail ballots on election night. Poll watchers cannot interfere with the process and must be trained by the party or organization sponsoring them, according to the law.

In Texas

TX SB7: A watcher is entitled to sit or stand [

conveniently
] near enough to see and hear the election officers conducting the observed activity, except as otherwise prohibited by 19 this chapter. (e) Except as provided by Section 33.057(b), a watcher may not be denied free movement where election activity is occurring within the location at which the watcher is serving.

… A person commits an offense if the person serves in an official capacity at a location at which the presence of watchers is authorized and knowingly prevents a watcher from observing an activity or procedure the person knows the watcher is entitled to observe, including by taking any action to obstruct the view of a watcher or distance the watcher from the activity or procedure to be observed in a manner that would make observation not reasonably effective.

The Texas bill would permit authorities to charge election officials for either refusing to accept a poll watcher or “knowingly” impeding one. Another addition requires watchers to take an oath that they “will not disrupt the voting process or harass voters in the discharge of my duties.”

5. New limits and liabilities on election officials

Republicans in Georgia and Texas have also revised the roles of election administrators, stripping some of the ability to make certain changes on their own. The Texas legislation exposes election officials to new potential criminal or civil charges.

In Georgia

GA SB202: There is created a state board to be known as the State Election Board, to be composed of

the Secretary of State
a chairperson elected by the General Assembly, an elector to be elected by a majority vote of the Senate of the General Assembly at its regular session held in each odd-numbered year, an elector to be elected by a majority vote of the House of Representatives of the General Assembly at its regular session held in each odd-numbered year, and a member of each political party to be nominated and appointed in the manner provided in this Code section. No person while a member of the General Assembly shall serve as a member of the board.

The new election law in Georgia took some power from the secretary of state and gave it to the state legislature. The secretary of state is no longer a voting member of the State Elections Board and will be replaced by a chairperson chosen by the state legislature, who must be “nonpartisan” and not “actively participate in a political party” or with a campaign. A majority of the state elections board is now appointed by the state legislature.

The moves come after Raffensperger, a Republican, was repeatedly attacked by Trump for not helping him overturn the 2020 election, instead saying it was a fair vote. He is also now facing a Trump-backed primary challenger in his 2022 race.

The election board may also remove and replace city and municipal superintendents who oversee elections at a local level, though it may not suspend more than four at once. Municipalities also have the ability to challenge their superintendent if they are not fulfilling their duties.

In Texas

TX SB7: UNLAWFUL ALTERING OF ELECTION PROCEDURES. A public official may not create, alter, modify, waive, or suspend any election standard, practice, or procedure mandated by law or rule in a manner not expressly authorized by this code.

This section would block election officials from following in the footsteps of Harris County and finding wiggle room in the law to create new voting methods in 2020, like drive-thru and 24-hour voting. Neither was expressly authorized under Texas election law.

TX SB7: Sec. 232. 061. PETITION ALLEGING FRAUD. This subchapter applies to an election contest in which the contestant alleges in the petition that an opposing candidate, an agent of the opposing candidate, or a person acting on behalf of the opposing candidate with the candidate’s knowledge violated any of the following sections of this code …

Sec. 232.062. EVIDENTIARY STANDARD. A contestant must prove an allegation described by Section 232.061 by a preponderance of the evidence.

Sec. 232. 063. OVERTURNING ELECTION. If the number of votes illegally cast in the election is equal to or greater than the number of votes necessary to change the outcome of an election, the court may declare the election void without attempting to determine how individual voters voted.

This section creates an avenue for candidates to challenge the results of an election with explicit claims of fraud, as well as the means for overturning the results of the election. The evidentiary standard “preponderance of the evidence” is below “beyond a reasonable doubt.”

There is no proof of widespread, systemic election fraud in the United States, despite Trump’s claims otherwise. The office of Texas state Attorney General Ken Paxton, a Republican who led efforts to toss out election results in states that Trump lost in 2020, committed 22,000 staff hours to finding voting fraud and resolved 16 prosecutions, the Houston Chronicle reported.

TX SB07: A person commits an offense if the person knowingly or intentionally makes any effort to: … (3) count votes that are invalid, or should otherwise not be counted, fail to count votes that were lawfully cast, or alter a report to include invalid votes; (4) fail to count valid votes or alter a report to exclude valid votes; … An offense under this section is a Class A misdemeanor, except that an offense under this section is a state jail felony if the person committed the offense while acting in the person’s official capacity as an election officer.

Texas Republicans’ bill added new potential criminal penalties for election officials. The Texas District and County Attorneys Association tweeted that the new bill included “16 new, expanded, or enhanced election-related crimes.”

A bipartisan pair of prominent election lawyers warned in a New York Times essay that provisions targeting election workers, “no matter their stated intent, will be used as a weapon of intimidation.”

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