San Antonio Express-News (Sunday)
Mystery around clause on flipping elections
In a sweeping overhaul of Texas elections law that Republicans rushed toward approval in the waning hours of the legislative session, one provision stood out to critics as particularly alarming.
The hastily added clause would have made it easy for a judge to overturn an election, even if there were only thin evidence of fraud. With former President Donald Trump’s efforts to nullify his November election loss still fresh in their minds, Democrats singled out the measure as irresponsible.
“Just think about that — your election, YOUR election, could be overturned without the other side being required to prove actual voter fraud,” said state Rep. Julie Johnson, D-Carrolton, in an impassioned speech on the floor of the Texas House. “The implications of this are unthinkable. To make matters worse, the provision was not in either the Senate or the House version of the bill.”
The bill died May 30 after Democrats blocked a vote on it by walking out. Yet policy debates have given way to an even more basic question: Who added the “overturning elections” section to the bill?
One of the members of the conference committee that crafted the final version of the bill, Rep. Travis Clardy, R-Nacogdoches, says he doesn’t know. Other top Republicans who worked on the final draft of the legislation say they don’t know either.
What’s more, Clardy — and the bill’s chief author, Sen. Bryan Hughes — now denounces measures relat
ed to overturning elections and says Republicans don’t plan to revive them in a future bill.
“There was zero appetite or intent or willingness to create some low bar where a single judge can overturn the results of an election,” Clardy said in an interview with Hearst Newspapers. “That would be horrendous policy, and it would never be healthy for the democracy.”
Democratic members say there is no way those provisions were inserted by mistake. They say they raised concerns about them with Republicans when there was time to spare for the bill to be revised.
The sections in question would have lowered the standard of proof to overturn an election from “clear and convincing” evidence to a “preponderance of the evidence” for many types of fraud allegations. And they gave judges the ability to void elections even if it couldn’t be demonstrated that fraudulent ballots made a difference in the outcome.
If the bill had passed, Texas would have been one of few states to have lowered the bar that much, opening the door to a flood of potential election challenges, election law experts said.
“If we deliberately design a system that says all you have to do is come up with a simple preponderance — that is, just barely more evidence than the other side — and we’re going to throw out the elections, when we have a whole gamut of election procedures in place that we justifiably expect to produce reliable results in the normal course, we’re really undermining that,” said Steven Huefner, professor of law at Ohio State University.
Added by mistake?
The final version of Senate Bill 7 varied greatly from its previous iterations. Such changes are not uncommon at the Texas Capitol, where the Legislature meets once every two years for 140 days of policymaking and political pointscoring. Sometimes the results are sloppy.
When the Texas Legislative Council, a nonpartisan agency whose lawyers and researchers advise the lawmakers drafting legislation, returned the bill, Clardy said he was caught by surprise by some of the new provisions, which he said were not among revisions submitted by the bill’s authors.
In addition to the last-minute provision on overturning elections, another late addition said early voting on Sundays could not start before 1 p.m. Democrats decried the provision as an attempt to undermine “souls to the polls” events organized by Black churches. Clardy later told NPR that it was a typo.
“I don’t want to put the blame on the Legislative Council lawyers that worked on this,” Clardy said. “We never intended and never asked for or wrote ourselves some section called overturning elections. That was not the desire at all.”
He added: “I don’t know about what input other conferees may have had with Lege Council; I’m just saying that as a lawyer, and understanding the import and difference in standards, I would never agree with ‘preponderance’ and would have and will insist on ‘clear and convincing.’”
A legislative council spokeswoman declined to comment, saying the drafting of bills is “privileged and confidential.”
Rep. Nicole Collier of Fort Worth, one of three Democrats on the conference committee and chair of the Texas Legislative Black Caucus, wasn’t buying Republicans’ claims that the language was added by mistake.
“They had time to review it,” Collier said. “The fact that the conference report was signed on Saturday” — the day before it went to the House floor — “means that they had read it, and they approved it.”
Zero public comment
A similar bill in 2019, Senate Bill 9, also authored by Hughes, contained just the provision to lower the standard of proof for nine types of fraud allegations.
The current legal standard of “clear and convincing” evidence in voter fraud cases is based on court precedent.
Hughes, R-Mineola, who was Senate chair of the conference committee, said that in this year’s bill, senators wanted to see the “preponderance of the evidence” standard only for civil suits in which damages are being sought, not election contests, but that section did not come out as intended.
“As far as going forward, we’re going to make it very clear in a special (session) that the standard for overturning won’t change; it’ll still be the ‘clear and convincing’ that it’s been for a long time,” he said.
The section on overturning elections was not in the final draft of the bill that senators approved, Hughes said, so it must have come during edits by House members.
“It was added in the last draft, and the Senate made no changes in that last draft,” he said.
House Speaker Dade Phelan, RBeaumont, responded to a request for comment with a statement: “The speaker’s office did not direct nor have we seen evidence to suggest that the House requested these changes be made to the SB 7 conference.”
During final debate on the bill, House Elections Committee Chairman Briscoe Cain, R-Deer Park, said some amendments he supported were mysteriously missing from the final version. Cain said last week that he knew as much as Clardy about where the overturning elections section came from and that he had nothing further to add.
Elizabeth Álvarez-Bingham, the main lawyer who consulted with House Republicans on the bill, said she would not have ever recommended lowering the burden of proof.
“Election contests exist as a role of the judiciary,” Álvarez-Bingham said. “They’re only supposed to override the election if you can meet the highest possible burden, and that’s the way it should be.”
The language in the bill lowering the standard of proof was in an earlier version the Senate approved in April, though there was little discussion about it at the time. Rep. Cole Hefner, R-Mount Pleasant, had proposed the change in a separate bill that was withdrawn before it could be heard in committee. He did not respond to a request for comment.
Sen. Paul Bettencourt, R-Houston, who served with Clardy on the conference committee that signed the final version of the legislation, said he also does not want to see the standard of proof lowered and would prefer judges maintain their discretion.
As for the part allowing judges to void elections, no other bills filed this session included the language, according to a search of Texas’ legislative database.
Álvarez-Bingham noted that almost identical language already exists in Texas Election Code. It can be found now within a section laying out a judge’s ability to compel voters to reveal their vote during an election contest.
In current law, it is posed as an alternative when the number of illegal votes cannot be calculated. Without that distinction, critics argued, and especially in combination with the lower standard, the provision could have been interpreted to mean judges could reverse an election without making any attempt to determine whether fraudulent votes were numerous enough to change the outcome.
The public never had a chance to vet the new provisions, said Sen. Beverly Powell, D-Burleson, another one of the Democrats on the conference committee.
“Instead, like much of SB 7, the provision was crafted behind closed doors and rushed through in the 11th hour without input from minority voter advocacy groups and others,” Powell said in a statement. “I am hopeful that minority voter advocacy groups, local election officials and the public will have a greater say and input during a special session on monumental voting legislation.”
The special session, Clardy said, will give lawmakers a second chance to clean up the bill and include only the language they believe in strongly.
“The proof will be in the pudding on this,” he said. “When we do refile the bills for election integrity, when we come back for a special … these matters are going to be corrected.”