On a 5-2 vote, the Senate State Affairs Committee approved a bill that would create new “explanation” and “audit” processes to address “irregularities” in county election administration. Senate Bill 97 by Sen. Paul Bettencourt (R-Houston) was filed yesterday (Wednesday), heard in and voted out of committee today (Thursday) and is headed to the Senate floor with three days to go in the special session.
The bill would require county clerks to provide an “explanation and any supporting documentation” to certain people who submit a written request. Requestors could be candidates, county chairs, presiding and alternate presiding election judges or, in the case of a ballot measure, the head of a campaign committee supporting or opposing it. If the requestor is “not satisfied” with the response they get, they may request “further explanation” from the county clerk. Clerks have 20 and 10 days, respectively, to provide “the requested explanation and any supporting documentation.”
A person who is still “not satisfied” can request the Secretary of State for “an audit of the issue.” The Secretary of State has 30 days to decide if the county clerk’s response “sufficiently explains the irregularity.” If it does not, the Secretary of State “shall immediately begin an audit of the identified irregularity at the expense of the county.” After its “audit,” the Secretary of State can issue civil penalties to the county clerk if an Election Code violation found by the “audit” is not remedied within 30 days. This “audit” process – like the processes in other bills seeking “audits” of election results – is not defined by the bill and left up to the auditors.
The bill would also require a “review of results of 2020 general election for state and county officers.” A state or county party chair may request this “review,” which will be conducted by an “election review advisory committee.” The county clerk would appoint these members “from lists of names of persons eligible for appointment … by the party chair” of the county Democratic and Republican parties. As introduced, the appointees would have been selected “with the intent that the committee contain expertise” in mathematics, voting systems and software operations. The committee substitute removed this language, leaving the only qualification as being a registered voter.
A review would include all mail and Election Day ballots from “randomly selected precincts” and all ballots (up to 1K) from at least three early voting locations (unless it does not have three, in which case, all early ballots). The “review” would be limited to five contested races or measures. Despite language indicating the “review” is for state and county officers, the five races could include president and Congress.
The bill would direct the Secretary of State to determine “an acceptable margin of error appropriate for the county based on mathematical and statistical analyses appropriate to the voting system used by the county.” It is unclear what would constitute such analyses or why different standards would be acceptable for different voting systems. The committee substitute struck language permitting the advisory committee to determine its own standard. If the “review” differs from the canvass by more than this “acceptable margin,” then the committee “shall conduct another review” of different “randomly” selected precincts. If that “review” is outside the “acceptable margin,” then the committee “shall conduct a final review” of the “entire county” or “entire district.” The Secretary of State would also be required to “prepare a report” in cases where the committee “indicates a difference greater than the margin of error.”
These provisions would be in addition to the “randomized audit” provisions in Senate Bill 1 by Sen. Bryan Hughes (R-Mineola), which would require the Secretary of State to “audit” the results of four randomly selected counties, half of which must have a population more than 300K and the other two under that threshold. That provision does not require counties to pay for “performing an audit.” The bill leaves it to the Secretary of State to determine what constitutes an “audit.”
The Legislative Budget Board determined that Senate Bill 97 would have no significant fiscal implication to the state, but its impact on local governments “cannot be determined due to not knowing the volume of potential future requests and any response to such requests.” It appears that the bill’s requirements on county clerks to produce documentation exist outside the Open Records Act, which would mean the county clerk would not be able to assess customary document and research fees as for a request under that act.
The top election deputy in the Secretary of State’s office called the 2020 election “smooth and secure.” Then-Secretary of State Ruth Hughs’s election office approved several Harris Co. voting initiatives since targeted, and eliminated, in Republican-led election legislation. Hughs, an appointee of Gov. Greg Abbott (R), resigned as the regular session ended because her confirmation lacked sufficient Republican support. She did not even get a hearing from the Senate Nominations Committee.
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