Election fraud is now a felony in Texas

In 2021, Texas Republicans apparently made a mistake.

It happened when they scored one of their biggest political victories of the legislative session – passing a bill restructuring Texas’ voting process.

“The omnibus voting legislation that the Legislature went after during the 2021 legislative session was in direct response to former President Trump's claims of a broad and widespread electoral fraud,” said Joshua Blank of the Texas Politics Project.

The product of all this political effort was SB 1, a bill that banned 24-hour and drive-thru voting and created more rules around mail-in ballots.

In the hectic political process of passing a massive voting bill, an amendment was attached that lowered the penalties for electoral fraud.

“At some point, a compromise was made to downgrade illegal voting from a felony to a misdemeanor,” Blank explained.

The amendment didn’t get widespread attention until after Gov. Greg Abbott signed SB 1 into law. When the lowered penalties for voter fraud finally got widespread attention, the state’s top leaders were furious.

“Nobody took credit for it,” said Blank.

The amendment was introduced by San Antonio Republican Steve Allison, who said he only filed it at the request of Attorney General Ken Paxton, according to the Texas Tribune.

Paxton did not agree with this account of events.

In a tweet, he called Rep. Allison out by name and wrote that, “vote-fraudsters should be subject to the MAX penalty. Election integrity is no place for a soft-on-crime approach.”

Gov. Abbott and Lt. Gov. Dan Patrick came out strong against the rule changes.

“When it was noticed that this happened, there was a backlash among the grassroots in the Republican Party,” Blank said.

HB 1243 is a byproduct of the backlash. The law raises electoral fraud from a Class A misdemeanor back to second degree felony, making it a crime punishable by up to 20 years in prison.

First filed by Mt. Pleasant Republican Cole Hefner, HB 1243 sailed through the legislative process and went into effect on Sept. 1.

“We have made tremendous strides toward election integrity in recent years,” Cole said on the floor of the Texas House back in April. “But we must ensure that Texans are confident the legitimate votes they cast will be counted and are not canceled out by someone who has knowingly or intentionally cast an illegal ballot.”

For Cole, the harsher penalties are about establishing expectations around electoral fraud.

“How much is okay? I would say zero,” Cole told the House. “I think that should always be our goal. Zero fraud.”

How prevalent is fraud?

As of Sept. 1, people who knowingly vote more than once, on behalf of others or in elections where they aren’t eligible, could be given up to 20 years in prison.

“This is a penalty that is associated with often violent crimes,” said ACLU of Texas civil rights attorney Ashley Harris. “Second degree felonies include aggravated assault, sexual assault, robbery, arson.”

Progressive advocates like Harris take issue with the severity of the new punishments for election theft. They also point out that when penalties were lowered during the last legislative session, the amount of attempted fraud didn’t change much.

“The penalty for these violations under the election code was lowered for two years,” Harris said. “And nobody has been able to point to an increase in harms or nefarious actions that happened around elections.”

The ACLU of Texas' rough estimates show that about 70% of the state’s prosecutions for election integrity efforts under Attorney General Ken Paxton have been against Black and Hispanic Texans, though it did not provide evidence that minorities are being targeted for electoral fraud based on their racial or ethnic identities.

“We see that the numbers show that disproportionately Black and Latinx voters are prosecuted for violations of the election code,” said Harris. “This is consistent with Black and brown folks in Texas being disproportionately affected by the criminal legal system … bringing criminalization into the voting space and the election code when it's simply not necessary.”

According to the conservative Heritage Foundation, Texas has handed out around a hundred criminal convictions around electoral fraud since 2005 – largely in smaller Texas cities where smaller fraud operations can have larger impacts.

“There is much less illegal behavior in Texas today than there has historically been,” says Southern Methodist University professor of political science Cal Jillson.

For much of Texas history, elections have been a corrupt enterprise. Jillson cited examples like the exclusion of Black Americans and women at certain points of history.

“Legal authorities in Texas have always crafted the electorate to conform to their preferences,” Jillson said.

Texas is also home to one of the most famous stolen elections in American history. In 1948, future president Lyndon Johnson stole “many thousands” of votes in South Texas to win a seat in the U.S. Senate, according to historian Robert Caro.

But that’s in the past.

“The modern voting process was put into place in the early 1970s,” said Jillson. “The Secretary of State was given responsibility for monitoring the process and it has been modern, efficient.”

Over the past fifty years, Jillson says that Texas has developed, “a legal voting process in which illegality is hard to find and difficult to prosecute.”

What changes?

“The law itself doesn’t change,” according to employment law and civil rights attorney Austin Kaplan.

According to Texas’ legal code, prosecutors have to prove that potential election thieves “knowingly or intentionally” tried to corrupt the process.

“It makes it hard to get a conviction because you need to prove the elements beyond a reasonable doubt in criminal law,” says Kaplan. “It makes it harder to prosecute cases.”

In a state where attempted election fraud isn't pervasive, HB 1243 does not represent a massive change to the voting process.

It just establishes harsher penalties for getting caught trying to corrupt the democratic process.