Trial over Texas’ voting law to discuss voter ID and ballot drop box

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

This coverage is made possible through Votebeat, a nonpartisan news organization covering local election administration and voting access. The article is available for reprint under the terms of Votebeat’s republishing policy.

Two years after voting rights groups challenged Texas Republicans’ sweeping overhaul of its voting and election laws, the case comes to trial Monday in a federal court in San Antonio. The lengthy roster of plaintiffs will argue certain provisions of the new law made it harder for voters of color to cast ballots, with some alleging the effect was intentional.

More than 20 state and national organizations brought a collective five lawsuits against the law, often referred to as Senate Bill 1, that have been consolidated into this case. The groups claim several provisions of the law violate federal laws including the Voting Rights Act, the Americans with Disabilities Act, the Rehabilitation Act and the First, 14th, and 15th Amendments of the U.S. Constitution.

The trial is expected to go until late October, and U.S. District Judge Xavier Rodriguez may not issue a decision until months later. Experts say it’s unclear and too soon to tell whether a decision will come in time to affect elections and voting in 2024, especially since appeals could draw the process out.

Republicans rammed the law through in 2021, with Democrats accusing them of legislating in response to baseless and unsupported allegations of nonexistent voter fraud. Ever since, election observers have closely monitored the effects of the law’s changes to how Texans vote and how election officials administer elections.

“These rules have gotten so incredibly complicated, that now [voters] almost need a lawyer to understand what you can and cannot do,” said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund and a lead attorney representing plaintiffs La Union del Pueblo Entero and the Southwest Voter Registration Project.

For example, she said, it’s now illegal for a person who assists voters to receive or accept compensation. That’s the sort of work nonprofit advocacy groups have done for several years, especially for the elderly and people with disabilities.

“Some people don’t speak English. Some people can’t read or write. We have a lot of elderly in our community, people with disabilities, too. It is not true that every voter has somebody in their house with them, who can help them navigate the process. Some people turn to community resources for that,” Perales said.

Among the provisions the plaintiffs are challenging:

• One that prohibits election officials from distributing mail-in ballot applications to voters who did not request them. The provision came in response to an effort in Harris County, the state’s most populous, to expand voting access during the 2020 COVID-19 pandemic, when election officials sent out absentee ballot applications to voters who were eligible to use them.
• A ban on 24-hour and drive-thru voting. Harris County also provided those voting options during early voting in 2020. Republicans challenged drive-thru voting unsuccessfully at the time, and later banned it as part of SB 1.
• A ban on mail-in ballot drop boxes. In 2020, Gov. Greg Abbott originally limited their use to only one location in each county. SB 1 subsequently banned them entirely.
• New requirements for anyone who provides transportation to more than seven voters. These drivers must submit their personal information and authorization for providing such transportation to the government.
• Provisions restricting providing assistance to voters casting a ballot at the polls and completing absentee ballots. Those providing assistance at the polls must fill out a form with an oath affirming the voter is qualified to receive help. Those helping voters with their absentee ballot must provide information about their relationship to the voter and whether they are being paid.
• The elimination of an employer’s obligation to let employees take time off to vote.
• Provisions that expand poll watchers’ access. The law limits election workers’ ability to remove those poll watchers “who intimidate voters or otherwise interfere with the voting counting processes,” the lawsuit says.

Some decisions reached before trial 

Senate Bill 1 created new requirements for Texans who qualify to vote by mail. They are now required to provide either a driver’s license number or the last four digits of their Social Security number on their absentee ballot application and the envelope used to return their completed ballot, whichever matches the number the state has in its voter registration file. Last month, Judge Rodriguez, who is overseeing the trial, said that provision is illegal, though it remains in effect pending an injunction. More evidence against the provision will be heard at trial.

For voters who qualify to vote by mail — elderly voters, voters with disabilities, college students living away from home or any voter who isn’t in the county at the time of the election — the ID requirements have added barriers to having their votes counted, said Zachary Dolling, senior staff attorney for the voting rights program at the Texas Civil Rights Project and who represents OCA-Greater Houston, a chapter of the OCA-Asian Pacific American Advocates, as plaintiffs challenging that provision.

Months after the law went into effect, 24,000 voters who tried to vote by mail in the March 2022 primary had their ballots rejected due to the new ID mandates.

“These ID-matching provisions throw out votes on the basis of immaterial irrelevant paperwork. Errors that have nothing to do with whether the person is an eligible voter,” Dolling said. “The other plaintiffs’ groups will be able to show at trial that the burden of these mail ballot rejections falls disproportionately on people of color, as well.”

Last year, a provision restricting assistance at the polls for voters with disabilities and limited English language proficiency was permanently blocked in a separate lawsuit after a judge found it violated the Voting Rights Act. That provision is now no longer in effect and thus, won’t be part of this trial.

The law also added ballot security requirements to the election administration process in the state, including a mandate for elections administrators in counties with a population of more than 100,000 people to provide 24-hour video surveillance of any area of the election office that contains voted ballots, including the room where the votes are counted on election night. Taxpayers in those counties footed the bill for costs associated with the new rules. This provision isn’t being challenged in court.

The Texas Attorney General’s office is representing the state.

In a pretrial order filed by the parties last week, the office said the law was enacted to prevent fraud, promote voter access, and to make the conduct of elections in Texas uniform throughout the state. None of the challenged provisions created a racially disparate impact, the state maintains, and no challenged provision “blocks or seriously hinders voting by members of any minority group.”

The attorney general’s office did not respond to a request for comment.

Among the list of plaintiffs are organizations advocating for Latino, Black, and Asian American voters: the Southwest Voter Education Project, the League of United Latin American Citizens, OCA – Asian Pacific American Advocates, and REV UP Texas, which advocates for voters with disabilities, among others. Among the named defendants in the case are Texas Secretary of State Jane Nelson and interim Texas Attorney General Angela Colmenero.

To support their claims, the parties will call a total of 52 witnesses over the next month, including county election administrators from across the state, voters, Republican and Democratic lawmakers, representatives of the Texas secretary of state, and experts in political science and voting rights.

Whatever happens in the trial, SB 1 is far from the Legislature’s last word on the state’s elections. This year, legislators proposed more than 100 new laws, some of which passed. One that abolished the elections administration department in Harris County is now being disputed in court.

Natalia Contreras covers election administration and voting access for Votebeat in partnership with the Texas Tribune. Contact Natalia at [email protected]

Disclosure: Texas Secretary of State 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.

The full program is now LIVE for the 2023 Texas Tribune Festival, happening Sept. 21-23 in Austin. Explore the program featuring more than 100 unforgettable conversations coming to TribFest. Panel topics include the biggest 2024 races and what’s ahead, how big cities in Texas and around the country are changing, the integrity of upcoming elections and so much more. See the full program.