Analysis: Tinkering with the 2020 elections in the Texas Legislature

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Election tampering doesn’t require fraud or breaking the law. It takes place, to a greater or lesser extent, every two years — whenever the Texas Legislature convenes in Austin.

Lawmakers constantly try to erect or remove barriers to voters and candidates, to make it easier or harder to participate in the state’s democratic processes. And every 10 years, after the federal census is complete, they redraw the political maps for Congress and the Legislature, a form of election rigging that got its name in a political cartoon drawn more than 200 years ago: gerrymandering.

Some of the biggest attempts to influence the outcomes of future elections come in the form of proposed bills that force lawmakers to take positions that will attract or repel the voters back home. You can rig an election, or you can frame the issues that will be argued by that election’s contestants. That framing can be more important than changes to election laws.

True to form, the 86th Texas Legislature has been hard at work on the 2020 election cycle, debating proposals that would say who does and doesn’t deserve a spot on the ballot, that would increase penalties for voting violations, and that forced incumbent lawmakers to take positions on politically perilous issues from marijuana to abortion to religious exemptions from discrimination laws.

Some of this will survive past Memorial Day — the last day of the session — and some won’t. But when it comes to the kinds of issues that drive a wedge separating some lawmakers from others, the success of a bill isn’t that important. What’s important, in political terms, is the tally sheet that shows which legislator voted which way.

One bit of election engineering stalled, perhaps forever, in the House Calendars Committee, which schedules bills for votes by the full House. Or, as in the case of Senate Bill 9, doesn’t schedule them. The legislation aimed to make elections more secure and to limit what the bill analysis called “the most common fraudulent practices” in elections. That’s an eye-of-the-beholder phrase, best illustrated by the Republican majority's support for the bill: It passed the Senate on a 19-12 party-line vote and got out of a nine-member House Elections Committee 5-4, again on party lines, after a contentious public hearing.

Another one, House Bill 2504, would improve the chances for third parties trying to get on the ballot, but not necessarily because anyone in the Texas Legislature wants to help out the Libertarians or the Greens. Those parties haven’t won any significant state races in Texas, even when one of the big parties sat out an election. But in close elections, a third party can bleed votes from a Republican or a Democrat, making it possible for a minority party candidate to win with less than 50% of the vote. Ask state Rep. Jonathan Stickland, R-Bedford, who won reelection in November with 49.8%; Libertarian Eric Espinoza, who got 2.75%, helped make a close race closer and almost cost Stickland his seat.

Just as common are the bills that result in votes that you might see noted on bumper stickers when the 2020 electioneering is underway. Just this week, the House voted down Senate Bill 29, which would have made it illegal for local governments to hire lobbyists to represent them on legislative matters in Austin — an idea that seemed quite appealing to some lawmakers and clearly unconstitutional to others. By the time it came up for a vote in the Texas House, that restriction only applied to big cities and to 20 counties. It was soundly defeated, 85-58. But it’ll make good mailers next year.

Others have piled up in the last days of the session as senators and representatives grumble about votes that “cut them up” — that is, that force them to vote on hot-button issues that could be hard to explain back home. A bill that started as a legislative attempt to ban cities from requiring sick leave turned into an avenue for banning nondiscrimination laws. That forced members to choose between the businesses that wanted to ban sick leave policies and the LGBTQ groups that wanted to keep nondiscrimination protections. It failed. Another, spurred by the San Antonio City Council’s decision to deny an airport lease to Chick-fil-A — a chain that’s closed on Sundays for religious reasons — took a similar turn, got watered down and then passed.

The House wanted to lessen the penalties for possession of small amounts of marijuana, winning passage of legislation that would have failed — and not by a small margin — in recent sessions. But while the House has turned around on that issue, the Senate’s presiding officer has not; Lt. Gov. Dan Patrick never let that come to a vote in the upper chamber. House members will find out whether that’s still an issue that splits some of their voters.

And there was a Senate bill to make it harder to get rid of Confederate monuments, passed on a party-line vote after a tense debate over history and race that could become fodder in some of next year’s elections. That one never reached the full House for consideration, dying in a committee room as a deadline passed.

Sometimes, lawmakers just won’t be dragged into a really tough vote. After Gov. Greg Abbott, Patrick and House Speaker Dennis Bonnen endorsed a 16% increase in sales taxes as a swap for a cut in local school property taxes, committees in both the House and Senate teed up legislation for all of the senators and all of the representatives.

Despite the entreaties from their leaders, you can’t find records of how most legislators felt about that $5 billion tax bill.

They managed not to vote on it — and that means their own voters won’t be able to judge them by it in 2020.