Constitution State News

“Election integrity should not be a partisan issue,” says attorney Harvey Tettlebaum.

Tettlebaum, president of the Lawyers Democracy Fund, shared his insights with Constitution State News on Texas' efforts to pass new election integrity laws and compared them to mandates already on the books in other states.

“The safety of the vote, as well as the access of the voter to the ballot and the polls, are important to maintain the consensus of the governed that the outcomes of elections are correct and accepted,” he said. “The Texas special session bill attempts to strengthen voting procedures without depriving voters of their ability to vote and access the ballot and the polls.”

President Biden recently said in an official White House statement that Texas election reform efforts were “wrong and un-American.” Biden said the Texas laws were an “assault on democracy” and that they were “disproportionately targeting black and brown Americans.”

Tettlebaum, however, sees it differently.

“Texas’ new voting laws aim to enact important ballot security and integrity measures while leaving Texas’ voting laws among the most accessible in the nation,” he said. “The Texas reforms are objectively common sense and reasonable considering how Texas already makes it incredibly easy to vote. Compared to many traditionally blue states, Texas’ voting laws would remain far less strict.

“For example, the bill allows election officials to hold early voting hours from 6 a.m. to 9 p.m.," he added. "The House version of the bill would allow until 10 p.m. for the 17 days of early voting Texas provides. In this window, election officials are required to provide at least nine hours of early voting on weekdays and six hours on the weekend. However, Connecticut, Delaware and New Hampshire offer zero days of early voting. It would appear that many progressive voices reacting to the historical voting patterns of the states they are criticizing rather than placing the changes in law in the context in which they are being enacted.”

Connecticut, New Hampshire and Delaware all have populations under 4 million while Texas has nearly 29 million residents.

Connecticut is one among several Northeastern states that limit the time in which opponents can rally a base through policies that prevent most early voting.

“Many overlook this comparison because of assumptions about the state enacting the reforms based on the historical voting of its citizens,” Tettlebaum said. “Just because a state may have a history of its voters electing Republicans does not means that it is more difficult to vote in that state. To get an accurate picture, the laws of each state need to be examined without regard to whether historically it has voted for the candidates of one party or the other. While it is less convenient to vote in states like Connecticut and Delaware than in Texas, that does not mean that those two states are trying to ‘suppress’ the vote of any of its citizens.”

Russell Berman, writing for The Atlantic, wondered why some states in the Northeast have stricter voting laws than in other parts of the country like the South and Southwest.

“Democrats who have won election after election in states such as New York, Delaware, Connecticut and Rhode Island have had little incentive to change the rules that helped them win,” Berman wrote.

According to the Hartford Courant, Connecticut has some of the most restrictive voting laws in the country, with extremely limited absentee voting and no voting for incarcerated individuals or those on parole to go along with no early in-person voting.

Monte Frank, an opinion writer at the Connecticut Post, recently wrote that Connecticut’s voting laws are far more restrictive than those being passed by Georgia. Connecticut has very restrictive voter ID laws, does not allow early voting and it only allowed no-excuse absentee voting during the COVID-19 pandemic. The commentary suggested this could be changing.

"Connecticut, a state with some of the most restrictive voting laws in the nation, is poised to move in the opposite direction: Democrats in the General Assembly are considering a number of bills that would expand access and make voting easier," Frank wrote.

Empire State Today reports that Texas voter legislation was proposed during the spring legislative session. It offers two weeks of early voting and will roll back drive-thru and 24-hour voting, mandate a state ID or Social Security number requirement for all mail-in ballots, and change the legal burden for voter fraud from “beyond a reasonable doubt” to “by a preponderance of the evidence.”

According to an NPR/PBS NewsHour/Marist poll of 1,115 adults surveyed, 79% of respondents believe voters should be required to show government-issued photo identification when they vote.

The Constitution leaves each state to administer elections and make choices based on resources and other factors, Tettlebaum said – and that wise decision doesn’t need to be overturned.

He said Texas’ special session bill strengthens the state’s election procedures – and even creates greater efficiency of resources in election administration.

“The special session bill requires absentee voters to verify their identity by providing their driver’s license number or the last four digits of their Social Security number on both absentee ballot applications and absentee ballots,” Tettlebaum said. “Not only are reforms like this incredibly popular among voters, this reform also puts Texas’ voter ID requirements on par for both mail ballots and in-person voting.”

He notes that the bills will repeal drive-thru voting and other nontraditional voting procedures that were enacted during the pandemic.

“This fosters uniformity throughout the state and further limits the election integrity risk created by these pandemic-inspired voting,” Tettlebaum said. “More importantly, it relives the local election authorities of the additional expense and logistical challenges the COVID-19 measures required. An overwhelming number of states do not statutorily permit election officials to unilaterally mail absentee ballots or applications to voters, and for good reason. The Texas law would prohibit election officials from doing so to avoid voter confusion and ensure the voter is choosing to vote by mail on their own accord.”

The bill also will require counties to verify monthly that no non-citizens have been added to the voting rolls.

“Because voting rolls are often grossly outdated, this reform takes steps to ensure their accuracy and prevent non-eligible voters from being able to vote,” Tettlebaum said. “Voting by non-eligible persons dilutes the votes of qualified voters.”

The proposed law will protect and enhance the authority of partisan poll watchers to meaningfully observe every important aspect of ballot processing.

“Poll watchers are the first defense to prevent irregularities, and this bill protects this important feature,” he said. “Lastly, the bill bans paid third party ballot collection. Not only is this constitutional in light of the Supreme Court’s holding in Brnovich v. DNC, but it is also a commonsense measure to limit voter fraud, coercion, and manipulation on voters casting a mail ballot. Taken together, these reforms go a long way to strengthening Texas’ election integrity without making it harder to vote.”

According to The Wall Street Journal editorial board, the proposed Texas election integrity law was reintroduced for consideration in a 30-day summer special session and will promote the same reforms as its previous iteration, Senate Bill 7.

However, this is being challenged by Texas House Democrats, who fled the state to deny a quorum and prevent majority Texas Republicans from passing voting legislation. They also withdrew in the closing hours of the regular session to stymie the bill.

The legislators will need to stay out of Texas for the entirety of the special session called by Gov. Greg Abbott to prevent the passage of legislation.

Tettlebaum said it comes down to each state deciding for itself what election process works best.

“There is no mandate under the U.S. Constitution that requires states to implement certain election procedures such as in-person early voting, no-excuse absentee voting.” he said. “States are free to implement procedures according to the needs and desires of their individual electorates, balancing voter accessibility and the need to safeguard elections.”

Tettlebaum is a former Missouri assistant attorney general who served under John Danforth from 1971-77. He was also assistant dean of the Washington University School of Law in St. Louis from 1968-69.

The Lawyers Democracy Fund's stated mission is to promote the role of ethics and legal professionalism in the electoral process to ensure fair and honest elections.