Dade Phelan's Gutting of Texas Election Law

Senate Bill 1, the election bill passed by lawmakers during the second special session, makes it easier to cheat and harder to punish cheaters.

This is likely the opposite of what well coiffed smiling Republicans will tell you, so let's unpack what happened and who bears most of the blame.

First, lawmakers did knock out election rigging tactics deployed by Democrats in 2020, a no-brainer move. Still, they also inexplicably gutted a provision in state law meant to deter illegal voting and made pursuing illegal voting prosecutions all but impossible.

Specifically, gone are drive-thru polls, 24-hour voting, and covert attempts at universal mail-in balloting, but also gone are felony charges for casting an illegal ballot.

Instead of ensuring illegal participation in elections is punished, lawmakers essentially decriminalized voting illegally, lowering punishment for the crime from a felony to a misdemeanor—a level of punishment that won't be a meaningful deterrent to fraud.

If that weren't enough, lawmakers have issued a "get out of prosecution free" card to would-be cheaters by injecting the term "knowingly" in front of the act of voting illegally. As currently written, if a person is caught voting illegally, all they need to say is," I didn't know I was voting illegally," and they'll likely get away with the behavior.

Lowering penalties is in direct conflict with the Republican Party's 2020 election integrity priority and against the wishes of election administrators who have testified before the Texas House. Increased penalties deter bad behavior.

These aren’t the only two Democrat appeasing articles in the election bill, but they’re the worst.

To the extent that accidental illegal voting exists, the reasons for its existence can be singled out and addressed without blowing a hole in code that would be cheaters can exploit. If plain language is needed, insert simple language.

Directionally, this is what Democrats want, voting that isn't safeguarded against fraud, and they secured these meaningful wins with Speaker Dade Phelan's help.

A Squandered Session

These stealth Democrat victories, boasted about recently in the Houston Chronicle, came about in the second special session but had their roots in Speaker Phelan's systematic squandering of the regular session.

There is no reason that the regular legislative session should not have produced a 100% conservative election reform bill.

Entering the session, lawmakers were well aware that the 2020 election had instilled distrust in a large swath of the voting public. So strong was the call to fix the problems that Greg Abbott made election reform a priority item. This means lawmakers could be take up an election bill early in the session, before all other legislation.

Phelan squandered this opportunity intentionally. Slow walking election integrity and passing the budget out of order (before priority bills) allowed Democrats to flee the chamber and tank the regular session's too late election integrity bill.

For perspective, remember, Georgia was able to pass its election integrity bill in 30 days. They did so with minimal public backlash compared to the months of sustained consternation over Texas' bill. Even with a generous doubling of the 30 day Georgia allotment, a clean version of the election bill should have been passed 180 days earlier.

Instead, in a move tantamount to legislative malpractice, comprehensive election reform measures were not filed before March.

When election bills were finally filed and moving through the process, it was clear the Senate was taking the responsibility more seriously, expeditiously moving a more substantive bill through their chamber and over to the House.

Once the Senate's SB7 got to the House, Phelan's designs became clearer.

In an interview at the time, Phelan said he hadn't read the Senate bill and that he was more focused on passing the House's version. In the same interview, the Speaker revealed a shocking level of ignorance about what was in HB6 compared to SB7, advocating for election law reforms that were in the latter but not the former. This will matter when the process goes sideways in the House a few weeks later.

Phelans' dismissive intra-chamber bravado was a troubling sign of things to come. HB6, while a good bill was meaningfully deficient and inferior to SB7, which could have been know by reading the bill or picking up a summary from any number of election watchdogs calling for action.

Subjugating SB7 to HB6 indicated that the Speaker was not taking election integrity seriously, giving credence to the suggestion that he was tanking election reforms for the Democrats who elevated him to the Speakership.

Order of Operations

Before continuing with the election bills and what would be a bungled process of Afghan proportions in the House, it's at this point in the process that Phelan moves the budget ahead of election integrity to give away leverage.

Democrats in Texas are the minority party and have no hope of becoming the governing majority in the near future. They are in Austin for the budget; this is their goodies.

Phelan should never have passed the budget before election integrity. Full stop.

This conclusion is validated by Greg Abbott's vetoing of Article X in a misguided attempt to get and keep Democrats in Austin during the summer. Conservatives at the time made the case that the budget should be held hostage to election reforms and not vice versa. This advice was intentionally ignored.

Implosion of SB7

After SB7 makes it to the House, true to his word, Phelan has Chair of the Elections Committee, Briscoe Cain (R-Deer Park), take up HB6 instead of SB7. The cluster mess of a hearing that ensued so thoroughly embarrassed the Speaker's team it doomed HB6, further delaying action on priority election legislation.

Eventually, Chair Cain brought up SB7 in committee only to completely swap out the language found in HB6. This maneuvering was a trade of temporary pain with a small audience in a committee room for what would be an avoidable public defrocking on the House floor.

Cain ensured a fight on the floor by gutting SB7 and replacing it with HB6 as amendments would be necessary to make the bill helpful.

When SB7 (again, wholly substituted with HB6) made it to the floor, it served alternately as a punching bag and a Christmas tree for Democrats. Liberals took potshots at the bill's dazed defender (Cain), poked holes in, and amended the bill to subsidize their lack of electoral ability.

Eventually, Cain cried uncle, and a bill's badly beaten glowing corpse was passed and sent to conference committee.

The resultant SB7 was a bastardized measure deserving of criticism, just like SB1 deserves pointed criticism today.

Amendments to reorder the ballot, set up schools as vote harvesting mills, and watered down poll watcher protections were added to the bill to get it voted off the floor and avoid further carnage. Texas Monthly published an article boasting about Democrats successfully tempering the bill.

Since HB6 and SB7, as initially written, shared little outside of poll watcher protections, and SB7 had all of the clarifications to code needed after abuse by leftists in Harris and other counties in 2020, the conference committee would be tasked with the heavy lifting of reconstituting the bill.

This process was convoluted and late in the session. Still, in large part, the bill sent to the House to be deformed and degraded was transformed back into something useful.

When the bill emerged from conference in the waning days of the session, it was a bill Democrats could not abide by, so they fled. It was the best option for the minority party, and one the Speaker could have stopped but didn't.

Democrats headed into the summer with unnecessarily given leverage that they would immediately use.

Shortly after the second special session was called, the Democrats again busted quorum, this time leaving the state, and Phelan knew it was coming.

SB1 Sleight of Hand

[The first special session, outside of the Democrats leaving Texas for D.C., was uneventful, so we'll pick up the action in the second special.]

In the second special session, a familiar pattern of behavior emerges. The Senate moves its election bill quickly, but this time, it includes unnecessary Democrat-backed amendments that needn't be included (see: Closing Observations).

Once SB1 is in the House, the bill is again swapped with the House's version; this time, the bills are substantially similar.

Several amendments are offered during the floor debate, two of particular import, Amendment 50 by Steve Allison (San Antonio) and Amendment 58 by Cain. 

Both are amended to the bill, but the Cain amendment gets the attention. It's labeled the Mason Amendment after the convicted felon and Democrat tool to attack prosecutions of illegal voting.

Senator Bryan Hughes tweeted shortly after a vote on the amended SB1; he'd move to have the Senate concur with all but one House changes to the bill, ensuring "timely" passage.

This is highly suggestive of Hughes having reviewed and approved all other amendments, including Allison's gutting Texas election law.

The Hughes quick fight against the Cain amendment seemed odd at the time and, in hindsight, ultimately served as a distraction from the Allison amendment. 

This quick, public fight over Cain's amendment was paired with a floor resolution establishing intent that illegal voting should by default be assumed to be innocent. This is a nieve and weak position to assume and ignores a storied history of election theft in Texas and the U.S.

The Allison amendment had the effect of turning election law violations into an honors system. If an individual casts an illegal ballot, they're found out, and then they're questioned about that illegal behavior; the only defense they need have at hand and ready is "I didn't know I couldn't do that."

Conservatives need to be aware of the sleight of hand maneuvers that took place.

Closing Observations

Republicans have been breaking their arms in a back pat-a-thon on this bill. It's undeserved.

Correctly viewed, SB1 is at best a reversion to the mean on election practices that were abused in 2020 and regression on safeguarding, taking Texas back to pre-2015.

Though he's not alone to blame, in the aggregate, Dade Phelan's transparent and widely reported Democrat appeasing maneuvers are to blame for the flawed omnibus election integrity bill passed this summer.

As it stands, in addition to the previously covered flaws, SB1 is watered-down, with an unnecessary online curing portal for mail-in ballot applications, extending elections a week after election day, and removing harsher penalties for breaking the law.

Democrats get to have their cake and eat it, too; they get to claim Texas Republicans passed a big bad racist election bill while they benefit from the decriminalization of illegal voting and baby steps toward election practices already adopted in states like California.

Senators Hughes and Betancourt are to blame for creating an online process for curing mail-in ballot applications.

Republicans and Democrats for decades have railed on mail-in voting, rightfully noting it’s the most prone to fraud and the most likely to lead to votes going missing. Removing friction from mail-in balloting serves to increase its use, which is terrible governance.

Distrust in elections will increase as a result of the deficiencies in SB1.

In addition to not getting legislation passed expeditiously, Republican lawmakers have become increasingly insular, choosing to engage only with those on the right they can command and control, namely, think tanks. Republican lawmakers worked hard this session to exclude input from conservative activists based on this dynamic, and the election bill was worse for this fact.

There should and can be no justification for this hollowing out of the election code. Suggesting a blind eye should be turned to illegal voting because the state has bigger fish to fry is a devaluation of legal votes.

Conservatives should take no part in the self congratulator charade and demand immediate action to counteract these flaws.