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Texas Democratic state Sens. Mario Gallegos (Houston), Gonzalo Barrientos (Austin) and Eliot Shapleigh (El Paso) in 2003 — the last time Texas Democrats left the state to block an attack on voting rights. | Joe Raedle/Getty Images

Democrats hope to deny Texas Republicans the quorum they need to pass anti-voting legislation.

In a last-ditch effort to block legislation making it harder to vote, Texas Democrats resorted to a tactic they haven’t deployed since the George W. Bush administration — fleeing the state in order to prevent the legislature from passing laws.

The drama started last week, when Republican Texas Gov. Greg Abbott ordered state lawmakers to return to Austin for a special legislative session. He also instructed those lawmakers to focus on a list of 11 policy items, most of which are Republican pet causes such as forcing social media companies to publish viewpoints that the company does not want to publish, excluding transgender students from sports teams, and attacking “critical race theory.”

One of Abbott’s top priorities is legislation supposedly “strengthening the integrity of elections in Texas” — but he’s run into a significant hurdle. Early last month, Texas Republicans attempted to pass a similar bill, which would have imposed several restrictions on the right to vote. The bill was blocked after Democratic representatives discreetly abandoned the state House chamber — the Texas House cannot conduct business unless two-thirds of its members are present — until the House lacked a quorum and business was shut down.

On Monday, Texas Democrats revealed that they will repeat this tactic, with much of the state House’s Democratic minority fleeing to Washington, DC, in order to deny Republicans a quorum again. (The Republican majority can send law enforcement to arrest the fleeing Democrats and drag them back to the House floor, but Texas police typically do not have jurisdiction in the nation’s capital.)

Texas Democrats executed a similar maneuver in 2003, when 11 state senators fled to Albuquerque for 46 days in order to prevent the state senate from passing a gerrymandering bill benefiting Republicans — the standoff eventually ended when one of these Democrats returned home, thus giving Republicans a quorum to pass the gerrymander.

Currently, the exiled Democrats say they plan to remain out of the state until August 6, when the special session expires. But Abbott can call additional sessions.

Right now, in other words, the fate of the GOP’s new limits on voting is uncertain, as is the fate of Abbott’s other legislative priorities. But the situation is tilted in the GOP’s favor for multiple reasons, including that Republican lawmakers have the luxury of going about their normal lives in Texas, while their Democratic counterparts can look forward to a long period of exile if they hope to succeed.

So what, exactly, is in this bill that led Democrats to literally flee their homes in order to keep it from becoming law?

The short answer to that question is that there are two versions of the bill, both modest compared to some GOP voting proposals, though both still worrisome. Both the House and the Senate versions of the bill would add new restrictions to Texas’s already very restrictive laws governing absentee voting. They also would prevent drive-through polling sites, an innovation that some Texas counties used during the pandemic to protect voter health. And they impose new restrictions and paperwork requirements on individuals who help disabled voters and non-English speakers cast a ballot.

The bills would also make it much harder for election officials to remove partisan poll “watchers” sent by political campaigns or parties if those poll watchers harass voters or otherwise attempt to disrupt the election — with the Senate bill making it particularly difficult to remove such saboteurs. And the Senate bill could impose a draconian array of civil and criminal penalties on election officials, political campaigns, and even individual volunteers who commit fairly minor violations of the state’s election law.

The state’s Republican leadership, moreover, has made it quite clear that it is willing to wield the criminal law harshly to punish even very minor election-related transgressions. Texas’s Republican Attorney General Ken Paxton is currently prosecuting a 62-year-old man who mistakenly voted a few months before his right to vote was restored — the man, Hervis Rogers, was nearing the end of his parole period after being convicted of two felonies. If Rogers is convicted, he could face up to 20 years in prison for the crime of voting.

If the GOP’s bill passes, in other words, Texas may do far more than simply make it harder to vote. They could give officials like Paxton broad authority to bring criminal charges against individuals who commit minor offenses no more serious than what Rogers did.

So what is in the Texas GOP’s bills anyway?

Weighed against other Republican legislative proposals seeking to restrict the right to vote, the Texas bills — and especially the House version — are relatively modest. Neither bill contains anything approaching the most troubling provision of Georgia’s new election law, which allows the state Republican Party to effectively take over local election boards, shut down individual polling places, and potentially even disqualify individual voters.

Texas Republicans have also backed away from some widely criticized provisions that were included in previous versions of their bill, including a provision that would have shut down many urban polling precincts, and another that would have ended early voting on Sunday mornings — a time when many Black churches sponsor “souls-to-the-polls” drives.

Yet, even if Texas Republicans are less extreme than their counterparts in Georgia, both the House and Senate versions of the Texas election bill contain several provisions that could disrupt fair elections, while imposing excessive penalties on people who engage in fairly ordinary election activity, or who commit fairly trivial violations of the state’s election law.

Possibly most concerning are both versions’ proposals around partisan poll watchers.

It’s common for states to allow political parties to send partisan observers to polling places, in order to monitor the election and ensure that a witness is present in case any election rules are violated. During the 2020 election, however, the Trump campaign sent some poll watchers who behaved disruptively, who demanded extraordinary access to the ballot-counting process, or who made frivolous legal claims against election officials.

Both the House and Senate bills would make it much harder for election officials to remove disruptive poll watchers. The House bill, for example, forbids the state from removing partisan poll watchers, unless certain election workers witness the poll watcher breaking the law, and the poll watcher is given a warning first — although a judge may ask police to remove a poll watcher who commits “a breach of the peace or a violation of law.”

Realistically, however, election workers might be reluctant to remove even the most disruptive individual, because the House bill also makes it a misdemeanor to “intentionally or knowingly refuse to accept a watcher for service when acceptance of the watcher is required by this section.” Thus, an election worker who pushes too hard to keep a particular poll watcher out of a polling place risks being jailed for up to 180 days.

The Senate bill goes even further. It also imposes up to 180 days in jail on election officials who “intentionally or knowingly” deny access to poll watchers, but it does not contain the House bill’s language permitting poll watchers to be removed after election officials witness them committing two separate illegal acts.

The House bill could also lead to prosecutions of people who commit minor paperwork errors. The provision at issue requires election officials to report anyone who unlawfully registers to vote to the state attorney general. That might deter someone from intentionally registering to vote illegally. But a more likely possibility is that voters will be hit with criminal charges for innocent mistakes.

Texas, under the National Voter Registration Act of 1993, is required to allow people to register to vote when they apply for a driver’s license. Thus, a noncitizen who accidentally checks the voter registration box on Texas’s driver’s license application form could face criminal charges.

The Senate bill, meanwhile, requires the state to compare its voter rolls “against information in the database of the Department of Public Safety on a monthly basis to verify the accuracy of citizenship status information previously provided on voter registration applications.” Voters who are determined to be noncitizens, even if this determination is inaccurate, must prove that they are citizens or be deregistered as voters.

These sorts of voter purges, moreover, are notoriously unreliable. In 2000, Florida infamously used a similar tactic to purge names of supposedly dead voters and convicted felons from its voting rolls. But the list of 100,000 names was deeply flawed — one local election supervisor realized just how flawed when he recognized three names that were wrongly flagged as ineligible: one of his co-workers, the husband of a different co-worker, and his own father. (According to official tallies, George W. Bush won the presidency in 2000 thanks to a 537-vote lead in Florida.)

Both bills impose some truly ridiculous penalties on individuals who commit fairly benign legal violations. The House bill, for example, makes it a felony for any public official to send many voters an application to vote by mail if the voter did not request such an application.

The Senate bill, meanwhile, makes it a felony for many people to engage in “vote harvesting,” a pejorative term for picking up another person’s absentee ballot and taking it to a polling place. And it allows the state to sue any election official who commits a violation of the state election code. Someone sued under this provision may face “termination of the person’s employment and loss of the person’s employment benefits.”

One of the bill’s primary functions, in other words, is to impose potentially catastrophic consequences on election officials who depart even slightly from a complicated array of rules. That’s likely to discourage many people from seeking such jobs in the first place.

So will Democrats actually be able to block these bills?

Texas Democrats are relying on a provision of the state constitution which says that “two-thirds of each House shall constitute a quorum to do business” in order to prevent the GOP’s election bill from passing. (Such provisions are fairly common in legislative procedure. The United States Constitution, for example, states that a majority of each house’s members “shall constitute a quorum to do business.”)

Yet, while Texas’s constitution does require a two-thirds quorum to legislate, it also permits the remaining legislators to “compel the attendance of absent members.” Thus, the Democrats’ gambit depends on at least 51 members of the state’s 150-member House evading law enforcement, which may force absent lawmakers to return to the House floor.

That likely explains, at least in part, why the absent Democrats left the state — Texas law enforcement agencies typically do not have jurisdiction in Washington, DC — although many of the fleeing Democrats also say that they chose to spend their exile in the nation’s capital in order to pressure congressional Democrats into enacting voting rights legislation.

It’s hard to know how this will end. There are two reasons to think that Democrats may be more successful in blocking this election bill than they were when they tried to block the Republican Party’s gerrymander in 2003.

The first is that the current crop of Democrats-in-exile have more of a margin of error than their counterparts in 2003. The 2003 standoff ended after a single Democratic senator chose to return to Texas, thus giving Republicans a quorum. This time around, by contrast, 58 Texas House Democrats have reportedly agreed to flee — giving Democrats a little bit of a buffer if a handful of their number return to Austin.

The other factor cutting in Democrats’ favor is that the fleeing lawmakers may still be able to work even though they are not in Texas.

Texas lawmakers work part-time, and they are paid a pittance — $7,200 a year plus a $221 per diem when the legislature is in session — so most lawmakers have to have another job to make ends meet. In 2003, that was a serious burden, because a lawmaker who spends weeks out-of-state may not be able to do their other job. But, in a post-pandemic world where many workers are accustomed to doing business over Zoom, a critical mass of Texas Democrats may be able to remain out of state indefinitely.

Still, Texas Democrats may need to stay away from the state for a pretty long time if they want to keep the GOP’s anti-democratic bill from becoming law. Although the state constitution only permits Gov. Abbott to call special legislative sessions “on extraordinary occasions,” the state’s Republican-controlled Supreme Court is unlikely to place many practical limits on Abbott’s ability to keep calling new sessions until the absent Democrats return (and, in fairness, a situation where the state cannot legislate due to absent lawmakers is extraordinary).

Even in the best-case scenario for the departing Democrats, in other words, they could need to stay out of the state through the 2022 elections, win either a majority of one house of the state legislature or the governor’s mansion, and then wait until the new lawmakers take their seats in early 2023 before the Democrats can safely return home without risking being arrested and dragged to the House floor.

In any event, it should go without saying that a party that controls a minority of the seats in a state legislature should not ordinarily be allowed to shut down all business by fleeing the state. But it should also go without saying that the party that controls a majority should not be allowed to pass election laws seeking to entrench that majority.

Author: Ian Millhiser

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