Republicans are laying the groundwork for candidates to follow former president Donald Trump’s election-denying playbook, creating the potential for vote “audits” up and down the ballot for years to come.
Of most concern to election experts and voting rights advocates is Texas’s SB 47, a bill Republicans are currently fast-tracking through the state legislature. It would allow any candidate or party chair to force multiple inquiries into anything they view as an election “irregularity.” These inquiries would not require any burden of proof and could be pursued for potentially years after an election is over, all at the expense of taxpayers.
Roughly one-third of Americans believe Trump’s continued lies about widespread voter fraud in the 2020 election. Now add in the potential for similar claims from dozens of losing candidates in every single primary and general election race — not to mention county and state party chairs and committees supporting ballot measures, all of whom can also force a look into a past election — and you have the nightmare outcome of a bill like Texas’s SB 47.
“It was the single most concerning bill I have seen all legislative session,” Sarah Walker, executive director for the national, nonpartisan election integrity group Secure Democracy, said this week.
The bill, which passed the state Senate Tuesday, still needs a vote in the House, but it is getting an aggressive PR campaign from Trump, in part because it also includes an audit of the 2020 election. Trump has spent weeks putting intense pressure on Gov. Greg Abbott, who is up for reelection next year, to do a “strong and real” audit (and rejecting the post-election audit the state is already doing in response to his complaints as “weak”) despite winning the state by 6 points. Abbott’s office did not immediately respond to a request for comment.
Even if SB 47 does not become law this year, the damage of Trump’s voter fraud crusade has largely been done. Former Kentucky secretary of state Trey Grayson, a Republican who has become an outspoken voice in his party against these partisan audits, argued that Trump has already set an example for candidates at all levels to reject election results. “When you see him not accepting the outcome, despite evidence, and making wild allegations, I am confident that we’re gonna see it happen this year,” he said. “You know, this is kind of an off-year, we don’t have a lot of elections, but if there’s close races, people are just gonna approach it differently because what’s going to happen is your supporters are going to expect it.”
As Walker put it, “If we can see the sort of wildfire, sham audit spread in an election in which it was a decisive victory, you can only imagine what happens when it is a close election.”
Grayson, who ran elections in Kentucky for seven years, and every other expert interviewed for this story emphasized that real audits, conducted by experienced professionals and in the immediate aftermath of an election, are healthy and important aspects of democracy — “we want to make sure that we actually elect the right person,” as Grayson put it. But election challenges used to end when the results were certified. Not anymore.
Republicans in Arizona, Pennsylvania, and Washington state have also introduced legislation this year to expand post-election audits in the future, according to Secure Democracy. None of the bills go as far as Texas’s, but that could change. Texas has one of the few legislatures in session right now; most have already adjourned for the year. “One thing about Texas is that we are often on the cutting edge, unfortunately, of these things. And this could be, if it passes, a model for other states,” said James Slattery, senior staff attorney with the Texas Civil Rights Project.
In addition to revisiting the 2020 election, SB 47 would allow any candidate, county or state party chair, presiding judge, or “the head of a specific-purpose political committee that supports or opposes a ballot measure” to force an audit at any time after a primary or general election going forward. First, they can write to a county clerk or other election authority asking them to respond to an “irregularity” or alleged unlawful behavior by an election officer. The county then has to respond to every one of those requests it receives with an explanation and documentation within 20 days, and they have to pay for the investigation. If the candidate or other requestor isn’t satisfied with that explanation, the county has to do another investigation, this time in 10 days, also out of their own pocket. If they’re still unsatisfied with that answer, it then goes to the secretary of state (who, in Texas, is appointed by the governor), who either rules outright or starts an audit. What an audit would entail, the bill does not say, but it, too, has to be paid for by the county. If a violation is found, the county would have 30 days to fix it before incurring $500 daily fines until it is resolved.
The bill’s author, State Sen. Paul Bettencourt, said in an interview Friday that the secretary of state would determine the scope of an audit and that it would be conducted by the county elections authority at issue, though that’s not currently laid out in the legislation, meaning the secretary of state could define an audit however they’d like.
For Bettencourt, this is all about transparency. He says he first thought about writing the bill back in October because he had heard of some irregularities in early voting and tried to look into them, but says he still hasn’t gotten a response to his questions. “Look, it’s the job of all public officials to respond to inquiries by the public, that’s really what this is. … You have to have that communication because fundamentally people have to have belief in the integrity of the voter roll or they don’t believe the election results,” he said.
Slattery, who testified against SB 47 earlier this week, said that one of his biggest concerns is the lack of any penalty for candidates or other parties who try to force an audit over false information or in bad faith. “The incentive here is for people to just request this process to start … without any fear that someone is going to hold them to account. And it may just mean that this is done frequently, and for really bad reasons,” he said.
Grayson said that’s one of the benefits of handling allegations of voter fraud the way we do now: through the courts. “That’s what we saw in 2020, there’s a whole lot of things that get alleged but that people are not willing to put their signatures [on], a lawyer is not willing to present that to a court because there’s not evidence for it,” he said. “And now, if you set up this process where we don’t put any kind of standard, you allow anybody to allege anything and that causes you to immediately have to drop what you’re doing and do an audit.”
When pressed by Democrats and election integrity groups on whether counties should have to fund investigations into bad-faith allegations, Bettencourt has said he hopes the secretary of state would throw out “frivolous” claims, though that office only comes in at the third stage of the process.
Steph Gómez, the associate director of Common Cause Texas, said in an interview she thought the audits would only cause chaos and sow further distrust in elections. “I think the public will be confused. Like, you know, I’m confused and I do this every day,” she said.
“Texans have actual issues that they need their state leadership to be focusing on,” she added. “Like, for example, the winter is coming, right, and like, I do not know for certain that I’m not going to be left to freeze in my home again.”
During this week’s hearing on the bill, she told senators, “It’s embarrassing that state leadership dropped everything to respond to a tweet from a staffer of a former president, neither of which are actual Texas residents.”
SB 47 is short, just 11 pages, and it leaves several other questions unanswered. It doesn’t explicitly say that an individual must request an audit for their own race, for example, leaving it unclear whether the bill would allow a political committee supporting a ballot measure to request an audit of the 2024 presidential race. It also doesn’t address one potential practical limitation on these audits, which is that Texas law only requires officials to retain election records for 22 months. As Slattery noted, the bill doesn’t put any restraints on candidates requesting those materials after that deadline has passed. “I think in reality, this process would still take place, it would just often mean that there are no documents to turn over, which actually now that I’m saying this out loud, may make the process way, way worse,” Slattery said.
Bettencourt agreed, saying that the 22-month record retention requirement was a “major practical limit” on audit requests and suggested that the bill could be changed to address that issue.
The bill does establish a joint committee of legislators responsible for ensuring “compliance” with the bill, with members appointed by the lieutenant governor and the speaker of the statehouse. There is no requirement that the committee include members of both parties, however, and Bettencourt explicitly rejected a request to make the committee bipartisan on Tuesday.
What an influx of post-election ballot witch hunts will do to public trust seems obvious. But there’s also the toll that kind of work would take on elections administrators, who are already deeply underfunded and still facing threats months after the 2020 election. “I worry that it’ll drive out election administrators of both parties,” Grayson said.
Grayson said he understands that there’s huge demand in his party to do something as long as Trump’s supporters believe the election was stolen, but he cautioned lawmakers against taking this kind of action, which could be used against them by opponents in the future. “I mean, I think it’s bad policy, but it’s also really just short-sighted.”
Bettencourt said on the Senate floor several times Tuesday and in Friday’s interview that he believes there were irregularities in Texas’s election and that at least one Democratic county had more votes than voters. Because of that, he said, he had no problem with counties picking up the bill to look into any alleged irregularities in the future. “I think this expense of money is important to restore what we need to in the confidence in the election process in Texas,” he said on the Senate floor.
Pressed Friday on how elections administrations could deal with a flood of requests, potentially from every losing candidate on a ballot, without additional resources, Bettencourt said he disagreed with “the philosophy” of the question. “You got to have the transparency of asking questions and getting answers,” he said and suggested that if elections officials are doing their jobs, they shouldn’t need a costly investigation to answer questions.
Whatever the expense, the burden of conducting these audits is almost certainly going to fall more heavily on Democratic counties than Republican ones, and that means areas that tend to be more populous and diverse, Walker said. “Why target these counties, except to create a narrative about those areas that can be used in potentially future elections?” she said.
Slattery said he understood that many might dismiss a 2020 audit happening in Texas as “no harm, no foul”; given that Republicans won, there’s no election to try to overturn. But he said that it should still be treated with “real deadly amounts of seriousness.”
“What I believe is happening is that they’re using their control over the levers of power here to do audits, so that they can normalize them as a routine, accepted, and harmless feature of American elections so that in the future, they can use those precedents to actually make a decisive and voter suppressive impact on elections.”
That’s a sentiment echoed by Rep. Carolyn Maloney in the US House’s first hearing on the spread of Republican-led audits Thursday. Their ultimate aim, she said, is “to lay the groundwork for new laws that make it harder for Americans to cast their ballots, but easier for dishonest officials to overturn the results of elections they don’t like.”