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Analysis

How the Freedom to Vote Act Can Blunt the Worst of Texas’s Voter Suppression Law

A national floor for voter access and restored protections against racial discrimination will prevent the worst effects of S.B. 1 in Texas and of restrictive voting laws everywhere.

voting
credit: Montinique Monroe/Getty

As the Senate considers the Freedom to Vote Act, a new Texas law demonstrates the urgency of congressional action to protect voting rights. During an unprecedented year for restrictive voting legislation, Texas Senate Bill 1 stands out as one of the cruelest and most aggressive restrictive voting bills to become law.

The sweeping voter suppression law makes it harder for voters with language barriers or disabilities to get help casting their ballots, restricts election workers’ ability to stop harassment by partisan poll watchers, and bans measures election officials adopted to protect voting access during the Covid-19 pandemic, such as drive-thru voting.

The Brennan CenterDepartment of Justice, and other organizations have already sued over this targeted attack on Texas voters. In addition to S.B. 1, Texas has also enacted one of the most aggressively gerrymandered congressional maps in recent memory, which is also the subject of a Department of Justice lawsuit.

Ultimately, we cannot rely on the courts alone to protect Texas voters. Congress must step in to check state-level abuses, as the Constitution itself envisions. By instituting national standards for voter access and election administration in federal elections, the Freedom to Vote Act would counteract the worst effects of S.B. 1 and ensure equal access to the vote for all Texas voters. And by strengthening protections against racial discrimination in voting and requiring states like Texas with documented histories of racial discrimination in voting to preclear all changes to their voting practices with the Department of Justice, the John Lewis Voting Rights Advancement Act can help stop bills like S.B. 1 and other discriminatory conduct.

Mail voting

After a year in which a more diverse population than ever relied on voting by mail, S.B. 1 restricts mail voting in significant ways. The Freedom to Vote Act contains comprehensive provisions for mail voting that will preempt many of the law’s restrictions and ensure all Texas voters have the option to cast their ballot by mail.

The first way S.B. 1 restricts mail voting is by making it more difficult to request a mail ballot. It requires all mail ballot applications to be signed with “ink on paper,” essentially banning online applications and the use of photocopied signatures. The law also bars election officials from sending mail ballot applications to eligible voters who do not request them and makes it a criminal offense for election officials to even encourage voters to request an application in most situations.

These onerous restrictions seem to be a response to efforts by local officials to make voting easier in Harris County, home to Houston, during the Covid-19 pandemic in 2020. The Freedom to Vote Act would preempt these restrictions by requiring states to offer online mail ballot applications and barring states from prohibiting anyone from distributing mail ballot applications to eligible voters.

S.B. 1 also makes it harder for voters to return their mail ballots, requiring that they be delivered in person and physically received by an election official. This effectively bans the use of mail ballot drop boxes, which many voters relied on in 2020. The FTVA responds to this type of restriction by requiring states to offer voters multiple options for returning mail ballots, including drop boxes, at least one of which must be available 24 hours a day.

Finally, S.B. 1 makes it more difficult to have your mail ballot counted. The law requires voters to provide additional information on their mail ballots and ballot applications, such as the number on their driver’s license or the last four digits of their social security number.

While S.B. 1 will allow many voters to correct errors in their mail ballots to ensure their vote is not thrown out, the process relies on election official discretion and relies on weak safeguards for voters. The Freedom to Vote Act requires much stronger protections. It bars states from rejecting mail ballots or applications due to minor errors that are not material to the voter’s eligibility and mandates a notice-and-cure process that achieves the same accuracy goals but with much stronger safeguards for voters, including requirements that election officials notify voters of errors with their ballots within one business day and allow voters to cure errors for up to three days after the mail ballot deadline.

Early voting

In 2020, early voting was a rare area where Texas was better than many other states. To protect voter access during the Covid-19 pandemic, election officials in places like Harris County offered additional days of early voting and offered early voting at night. S.B. 1 rolls back many of those efforts to expand access to early voting. It prohibits early voting on state holidays — some of which may fall close to primaries — and limits the maximum hours of early voting election officials can offer on most days.

By contrast, the Freedom to Vote Act sets clear, strong national standards for early voting that would preempt S.B. 1: states must offer at least 10 hours of early voting each day for a period of at least 14 consecutive days before an election.

Partisan poll watchers

S.B. 1 empowers partisan poll watchers and restricts poll workers’ ability to remove them for causing disruptions. In a state with a long history of racially targeted voter intimidation, these provisions are particularly concerning. The law makes it a crime for election workers to refuse to accept credentialed watchers, expands watchers’ movement and observation rights at polling places, broadens the definition of “obstructing a poll watcher,” and grants watchers the right to observe the ballot transfer and tabulation processes, and restricts the ability of election workers to remove watchers for violations of certain election laws unless the election workers personally witness the conduct. S.B. 1 also expands poll watchers’ abilities to observe curbside voting, a process in Texas where voters with disabilities may vote from their cars.

Texas has a century-long record of voter intimidation by poll watchers, including several concerning incidents at polling places in 2020. And intimidation of election workers during the vote tabulation process was a major issue across the country in the days after the 2020 election. The Freedom to Vote Act blunts the effects of these provisions by curbing the opportunity for poll watchers to harass or intimidate voters and by granting voters, election officials, and election workers specific legal protections against intimidation, including a new, enforceable civil remedy.

Redistricting

In addition to S.B. 1, Texas has enacted one of the worst partisan gerrymanders so far this decade, seeking to lock in a partisan advantage and disempower communities of color in the face of rapid demographic change in the state. The Freedom to Vote Act will change the landscape for redistricting as well by establishing for the first time clear criteria for the drawing of congressional districts. It also bans partisan gerrymandering and adds new protections for communities of color.

The John R. Lewis Voting Rights Advancement Act

The Freedom to Vote Act will not reach every restrictive provision in every state law — due to the “ingenious” nature of restrictive voting laws, no federal statute could. This is why Congress must also pass the John Lewis Voting Rights Advancement Act. This bill would restore the 1965 Voting Rights Act’s preclearance requirement with a new coverage formula targeting states with documented histories of racial discrimination in voting, including Texas. In 2013, the Supreme Court struck down the old preclearance formula, which was one of our country’s most effective civil rights protections.

The new law would stop discriminatory voting changes in states like Texas in their tracks. It would also strengthen Section 2 of the Voting Rights Act, a nationwide ban on voting policies with discriminatory effects that the Supreme Court weakened in 2021.

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The ongoing assault on voting rights in Texas demonstrates the urgency of passing federal democracy reforms immediately. Texas’s primary elections, which are set to be conducted under the restrictive provisions of S.B. 1 and an extremely gerrymandered map, are only four months away.

By setting strong national standards for voter access, election integrity, and redistricting, the Freedom to Vote Act will go a long way towards minimizing partisan malfeasance in the election process. And perhaps more importantly, the provisions of the law that simply make it easier for all Americans to vote — such as same-day registration, accessible drop boxes, and early voting — remove the incentives for states to come up with ever more creative ways to suppress voters.