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BILL ANALYSIS

 

 

Senate Research Center

C.S.S.B. 220

88R14895 MLH-D

By: Bettencourt

 

State Affairs

 

4/6/2023

 

Committee Report (Substituted)

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

Currently, during elections a number of violations of the Texas Election Code are committed and there is no enforcement activity. This lack of enforcement is due to a number of reasons, however, largely due to the lack of Election Code knowledgeable law enforcement personnel. Across the state there have been instances of candidates loitering within the 100 feet mark to greet voters and some have even created a rally to force the alternate judge to leave the poll; poll watchers are prevented from viewing activity that they are entitled to view; election administrators are not providing necessary information; postal workers are holding mail ballots; poll watchers are observing how voters are voting and reporting it to the voters' employers; and intimidation of nursing residents.

 

Election violations are sporadically reported to the secretary of state (SOS), who contacts the alleged violator in an attempt to stop the violation. However, SOS does not have any law enforcement personnel to investigate violations. Typically, the only recourse for SOS is to send a strongly worded e-mail or turn the irregular activity over to the attorney general. The irregular activity is noted and maintained to be used in an election contest, but very little action is taken against the violator of the Election Code. Election contests only occur when the race is close, even though there may have been egregious violations of the code. There is very little to discourage violators from repeating the same bad behavior again and again.

 

S.B. 220 would provide an avenue for SOS to immediately address election violations as they are occurring. The bill provides for an election marshal appointed by SOS from the Department of Public Safety of the State of Texas. This election marshal would ensure that election marshals are trained and ready to respond to election violations across the state in an expeditious manner.

 

Not only would S.B. 220 provide for an election marshal, it would also provide for emergency judges to be able to hear cases within three hours of reporting during early voting and within one hour during election day. These judges would be appointed by the eleven (11) regional administrative law judges across the state.

 

Additionally, S.B. 220 provides a cause of action to enjoin a party from continuing the alleged violation behavior.

 

(Original Author's/Sponsor's Statement of Intent)

 

C.S.S.B. 220 amends current law relating to the enforcement of laws relating to elections.

 

RULEMAKING AUTHORITY

 

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1. Amends Sections 31.005(a) and (b), Election Code, as follows:

 

(a) Authorizes the secretary of state (SOS) to take appropriate action to protect against violations of this code and to protect the voting rights of the citizens of this state from abuse by the authorities administering the state's electoral processes.

 

(b) Authorizes SOS to order a person performing official functions in the administration of any part of the electoral processes to correct offending conduct if SOS determines that the person is exercising the powers vested in that person in a manner that:

 

(1) impedes the free exercise of a citizen's voting rights; or

 

(2) unless acting under an order of a court of competent jurisdiction, delays or cancels an election that the person does not have specific statutory authority to delay or cancel; or

 

(3) otherwise violates a provision of this code.

 

SECTION 2. Amends the heading to Chapter 34, Election Code, to read as follows:

 

CHAPTER 34. STATE INSPECTORS AND ELECTION MARSHALS

 

SECTION 3. Amends Chapter 34, Election Code, by adding Sections 34.006 and 34.007, as follows:

 

Sec. 34.006. ELECTION MARSHALS. (a) Requires SOS to appoint a state election marshal. Provides that the state election marshal reports to SOS.

 

(b) Requires the state election marshal to appoint election marshals for each Department of Public Safety of the State of Texas (DPS) region such that there is one election marshal for each 1,000,000 people who reside in the region. Requires that appointments be made not later than the 60th day before the date early voting is scheduled to begin in an election held on a uniform election date in November or a primary election. Provides that an appointment made under this section is in effect for 90 days, and is authorized to be extended by the state election marshal if the election marshal is conducting an investigation.

 

(c) Requires the state election marshal to designate an election marshal in each DPS region as the chief election marshal for the region. Requires the chief election marshal for a region to assign election marshals to each alleged violation of this code occurring in the region as described by Section 34.007.

 

(d) Requires a person, to be a qualified as a state election marshal or an election marshal, to:

 

(1) be licensed as a peace officer by the Texas Commission on Law Enforcement;

 

(2) be commissioned by DPS; and

 

(3) have received training in election law from SOS.

 

(e) Provides that an election marshal has the powers and duties of a state inspector under this chapter and other powers and duties as assigned by law.

 

(f) Provides that the name, county of residence, and contact information for the purpose of official business of each election marshal and the state election marshal are public information.

 

Sec. 34.007. INVESTIGATION BY STATE INSPECTORS AND ELECTION MARSHALS. (a) Defines "chief election marshal," "election marshal," and "state inspector."

 

(b) Requires a state inspector or election marshal to promptly investigate an alleged violation of this code that is supported by an affidavit or unsworn declaration and submitted to the state inspector or chief election marshal, and if submitted to the chief election marshal, assigned to the election marshal.

 

(c) Provides that if an election marshal investigates an alleged violation of this code and finds probable cause exists that a violation of this code is occurring or is likely to occur, the election marshal is required to exercise all lawful means to prevent the violation from continuing or occurring, is authorized to seek such orders, processes, or warrants from a court that the election marshal finds necessary to prevent the violation from continuing or occurring, and is also authorized to file appropriate criminal charges.

 

(d) Requires that nothing in this section be interpreted to affect the right of a candidate or political party to file a civil action under other law.

 

SECTION 4. Amends Section 273.001(a), Election Code, as follows:

 

(a) Requires the county or district attorney, if two or more registered voters of the territory covered by an election or an election marshal assigned to the DPS region that includes the territory covered by an election presents affidavits alleging criminal conduct in connection with the election to the county or district attorney having jurisdiction in that territory, to investigate the allegations. Deletes existing text providing that if the election covers territory in more than one county, the voters are authorized to present the affidavits to the attorney general, and the attorney general is required to investigate the allegations. Makes a nonsubstantive change.

 

SECTION 5. Amends the heading to Section 273.003, Election Code, to read as follows:

 

Sec. 273.003. IMPOUNDING ELECTION RECORDS AND EQUIPMENT.

 

SECTION 6. Amends Section 273.003(a), Election Code, as follows:

 

(a) Authorizes a county or district attorney, the attorney general, SOS, or an election marshal, in the investigation of an election, to have impounded for the investigation the election returns, voted ballots, signature roster, and other election records or equipment. Makes a nonsubstantive change.

 

SECTION 7. Amends the heading of Subchapter E, Chapter 273, Election Code, to read as follows:

 

SUBCHAPTER E. INJUNCTIVE RELIEF AND EMERGENCY REVIEW

 

SECTION 8. Amends Section 273.081, Election Code, as follows:

 

Sec. 273.081. INJUNCTION. (a) Creates this subsection from existing text. Provides that a person, including a candidate, a political party, or a state, county, or precinct chair of a political party, who is being harmed or is in danger of being harmed by a violation or threatened violation of this code, is entitled to appropriate injunctive relief to prevent the violation from continuing or occurring and is authorized to bring an action to obtain injunctive relief to prevent the violation from continuing or occurring.

 

(b) Authorizes a court, in connection with an action for injunctive relief filed under Subsection (a), to issue subpoenas of persons or property and order the inspection or impoundment of election records or equipment.

 

SECTION 9. Amends Subchapter E, Chapter 273, Election Code, by adding Sections 273.082 and 273.083, as follows:

 

Sec. 273.082. DISQUALIFICATION OF JUDGE. (a) Provides that a judge of a district or county court with jurisdiction over any geographic area served by an election official who is a party in a proceeding for injunctive relief under this subchapter is disqualified to preside over the proceeding, unless the election official serves statewide.

 

(b) Requires the clerk of the court, if a petition is filed in a proceeding in which a judge is disqualified under Subsection (a), to promptly call the filing to the attention of the judge. Requires the judge, if the judge determines that the judge is disqualified under Subsection (a), to promptly request the presiding judge of the administrative judicial region to assign an alternate judge to preside over the proceeding.

 

(c) Provides that a judge who resides in the geographic area served by the election official who is a party under Subsection (a) is not eligible for assignment as an alternate judge for the proceeding.

 

(d) Authorizes the presiding judge of the administrative judicial region, in a proceeding in which a judge is disqualified under Subsection (a), until an alternate judge is assigned to preside over the proceeding, to take any action in the proceeding otherwise authorized by law, including the issuance of temporary relief.

 

Sec. 273.083. EMERGENCY REVIEW OF ELECTION ACTIVITY. (a) Requires the presiding judge of each administrative judicial region, not later than the 60th day before the date of a regular or special election, to appoint a sufficient number of visiting judges to serve as emergency election review judges to preside in actions under this section, in accordance with Chapter 74 (Court Administration Act), Government Code.

 

(b) Requires a judge appointed to serve as an emergency election review judge to receive training as specified by SOS at least once a year.

 

(c) Requires that an action filed by a candidate in an election or a political party or state, county, or precinct chair of a political party that has a candidate in an election that alleges a violation of this code in that election and requests emergency injunctive relief to prevent the alleged violation from continuing or occurring to be assigned to an emergency election review judge. Prohibits an action under this section arising in the district or county in which the court served by an active judge appointed as an emergency election review judge has jurisdiction from being assigned to that judge.

 

(d) Requires that a request for hearing in an action heard by an emergency election review judge be delivered to the assigned judge who is required to promptly conduct a hearing, by electronic means or otherwise, to begin no later than three hours after the judge receives a written hearing request filed not earlier than the 45th day before the date of the election and not later than the last day of in-person early voting, or one hour after the judge receives a written hearing request filed not earlier than the last day of in-person early voting and not later than the final canvass of an election.

 

(e) Provides that a hearing conducted by an emergency election review judge is required to be recorded or transcribed and is subject to appellate review.

 

SECTION 10. Effective date: September 1, 2023.