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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.

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.