Illegal voting in Texas likely to be a felony again after state House vote

A voter casts her ballot at the Metropolitan Multi-Services Center during Election Day in Houston on Nov. 3, 2020. (Annie Mulligan For The Texas Tribune, Annie Mulligan For The Texas Tribune)

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Texas lawmakers inched closer to reinstating felony-level punishment for residents who vote illegally, but a key provision separates the two legislative chambers.

The House on Thursday gave preliminary approval to House Bill 1243, sponsored by state Rep. Cole Hefner, R-Mt. Pleasant, with a 83-63 vote. The bill reverses a change state lawmakers made in 2021 when they downgraded illegal voting to a misdemeanor as part of a sweeping overhaul to the state’s election laws.

“We must ensure that Texans are confident that the legitimate votes they cast will be counted and are not canceled out by someone who has knowingly or intentionally cast an illegal ballot,” Hefner said.

Republican leaders have said that the 2021 change was a mistake. Among those cheering on the reversal is Lt. Gov. Dan Patrick, who presides over the Senate. He made reinstating the felony punishment a top priority this session. And Republican state senators already this year passed Senate Bill 2, which mirrors the legislation House Republicans approved Thursday.

Before taking a vote on the bill, Rep. Steve Allison, R-San Antonio, who authored the amendment last session that lowered the penalty, said that was done at the request of Attorney General Ken Paxton and it “made sense.”

Paxton wrote in a tweet later that Allison lied and voter fraud should be punished by the max penalty.

On the House floor debate Thursday, Rep. John Bucy, D-Austin, questioned Hefner what voter fraud evidence he had that warrants raising the punishment to a felony, but Hefner didn’t answer.

“It would seem to me that the current penalty is getting the job done,” Bucy said.

Rep. Sheryl Cole, D-Austin, raised concerns that the bill will especially be detrimental to Latinx Texans. A recent American Civil Liberties Union of Texas study found that 64.5% of election fraud prosecutions since Paxton took office were against Latinx individuals, a gender-neutral term Cole used during debate. The study also found that at least 72% of these prosecutions appeared to have targeted Black and Latinx individuals.

“Whenever there’s a case of fraud or vote harvesting, it’s always directed at Black or brown persons and communities,” Cole said.

Hefner in response said the bill “doesn’t see color, it doesn't see race, it doesn’t see gender.”

The key difference between the current House and Senate bills is whether a person can be prosecuted if they knowingly voted illegally.

The Senate’s version, sponsored by Sen. Bryan Hughes, a Mineola Republican, changes the existing legal wording to what’s known as the “intent requirement.”

Under the sweeping rewrite of the state’s election laws passed two years ago, a person only illegally votes if they “knowingly or intentionally” vote or attempt to vote in an election in which the person “knows they’re not eligible” to vote.

The Senate version up for debate would change that language to include anyone who votes or attempts to vote in an election in which “the person knows of a particular circumstance that makes the person not eligible to vote.” Those circumstances could include having been convicted of a felony or not holding U.S. citizenship.

The House version approved Tuesday does not make that change.

It’s unclear how the chambers will reconcile the differences.

Voting rights supporters called the bills “a game of gotcha.”

“Instead of improving election administration with funding for training, resources, and staff — lawmakers are wanting to criminalize voting and inject fear into our elections,” said Katya Ehresman, Common Cause Texas’ voting rights program manager, prior to the vote.

Disclosure: Common Cause has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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