TX Bill Would Make Illegal Voting a Felony


Texas Capitol building | Image by CrackerClips Stock Media

A bill that would increase penalties for voter fraud is slated for a public hearing in the Texas Legislature today.

Sen. Bryan Hughes (R-Mineola) recently filed SB 2, the senate bill to increase the criminal penalty for illegal voting from a misdemeanor to a second-degree felony. If someone is convicted of only attempting to vote illegally, the offense will be considered a “state jail felony,” also known as a fourth-degree felony.

In the Texas Senate, the lieutenant governor can hold the low-numbered slots for legislation he deems to be of particular importance. Although that used to apply only to the first 20 bills in any session, Lt. Gov. Patrick increased the amount to 30 in 2017.

Patrick announced the priorities for the current 88th Session earlier this month, as reported by The Dallas Express.

The first slot, SB 1, is generally reserved for the state budget, the only constitutionally required bill that the Texas Legislature must pass each regular session. The current budget proposal was authored by Sen. Joan Huffman (R-Houston) and provides $288.7 billion for the biennium, as previously noted by The Dallas Express.

Patrick specifically reserved SB 2 for “restoring voter fraud to a felony penalty,” adding that “Senators like to get a low bill number because it shows their bill is also a priority of the Lt. Governor and has a great chance of passing.”

In his statement of intent regarding the bill, Sen. Hughes explained, “S.B. 2 makes two important changes. First, it clarifies the mens rea standard for illegal voting.”

The legal term “mens rea,” Latin for “guilty mind” and refers to the “state of mind statutorily required in order to convict a particular defendant of a particular crime,” according to Cornell Law School’s Legal Information Institute.

Hughes’ bill would add to the Texas Election Code that a person is only culpable of voting illegally if “the person knows of a particular circumstance that makes the person not eligible to vote.”

Additionally, the bill “returns the penalty for illegal voting from a misdemeanor to a second degree felony, which was the penalty prior to 2021,” Hughes noted.

The penalty had been lowered during the 87th legislature’s second special session, which ran from August 7 to September 2, 2021. According to Lt. Gov. Patrick, the change was made by the House at the “last minute & went under the radar” until after the sweeping election reform package had been signed into law.

“Illegal voting has been a felony for almost 50 years,” Hughes explained, “and S.B. 2 returns this offense to a second degree felony. These offenses are serious and should be treated as such.”

After a first reading, the bill was referred to the Senate Committee on State Affairs, which Sen. Hughes chairs. It is scheduled for a public hearing on February 27.

Opponents of the bill allege that the legislation would make it too easy for people to be punished for unintentionally voting or attempting to vote illegally.

James Slattery, an attorney with the Texas Civil Rights Project, expressed to The Texas Tribune, “This is a very nasty and very potentially consequential provision. … That is why this intent requirement exists, because it’s not fair for people to go to jail for good-faith mistakes.”

Others have suggested that if the penalty is harsher, then the state ought to contribute more to voter education.

Anthony Gutierrez, executive director of Common Cause Texas, told The Texas Tribune, “If you’re increasing the penalty for a crime, you would think the state would take some responsibility for telling people what the law is, so [voters] know not to break the law.”

The Dallas Express reached out to Sen. Hughes’ office for comment but did not receive a response by the time of publication.

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