Why bills to bind Texas' Electoral College never reached Gov. Abbott

The momentum seemed to be there.

After Donald Trump easily defeated Hillary Clinton in Texas, two of the state's 38 Electoral College members cast ballots for someone other than the Republican nominee — a less-than-flattering moment for a state with a strong GOP tradition. In the days — even hours — after the Electoral College meeting in December, some of the state's top Republicans rallied around proposals to "bind" presidential electors to the result of the statewide popular vote.

"This charade is over," tweeted Gov. Greg Abbott shortly after the meeting ended. "A bill is filed to make these commitments binding. I look forward to signing it & ending this circus."

Yet no such legislation made it to Abbott's desk over the course of the legislative session that ended in May. Instead, lawmakers are now seeking to study the issue during the interim, an anticlimactic end to a session that began with major-league support for the cause.

"We were kind of stuck," said Eric Opiela, the former general counsel for the Texas GOP — which ended up opposing the way one of several filed bills dealt with "faithless electors."

The debate appeared to boil down to whether such electors should be fined after going rogue or be immediately disqualified if they submit a ballot for someone other than the winner of the statewide popular vote. The former proposal was what emerged in the immediate aftermath of the Dec. 19 meeting, when electors Chris Suprun and Bill Greene voted for Ohio Gov. John Kasich and former U.S. Rep. Ron Paul, R-Lake Jackson, respectively. 

More than a week before the vote — but after Suprun had already made clear he would not cast a ballot for Trump — state Rep. John Raney, R-College Station, filed House Bill 543, which would have created a $5,000 fine for any elector that does not support the winner of the statewide popular vote. Two days after the Electoral College meeting, Raney's bill received a Senate companion, Senate Bill 394, by then-incoming state Sen. Dawn Buckingham, R-Lakeway. 

In the House Elections Committee, HB 543 received a committee substitute that did away with the fine, instead making any elector ineligible to serve if he or she submits a ballot for someone other than the candidate who received the most votes in the general election in Texas. On April 17, the House elections panel approved the committee substitute on a unanimous vote. However, it never got a vote on the House floor.

Three days later, the Senate State Affairs Committee held a hearing on Buckingham's legislation, which still included the fine. It was there that SB 394 encountered opposition from the state Republican Party. Opiela told the committee that the bill "would not solve the problem it is intended to address," saying the fine could be "easily covered" by the elector or third parties and questioning whether it would survive a court challenge. 

"The preferred method of ensuring the will of Texas voters is respected — and one which has been tested and withstood constitutional scrutiny by federal and district courts of appeal this past cycle — is to bind electors to the vote in Texas and provide a process for automatic resignation when an elector violates his pledge," Opiela said during the hearing.

SB 394 was left pending in committee that day. It never got a vote.

Meanwhile, more legislation addressing rogue electors had cropped up. A pair of bills filed in late December and early January proposed to invalidate any ballot cast by a faithless elector — similar to the committee substitute to the Raney bill.

Neither bill made it out of committee, but in the final days of the session, one of their authors, GOP state Sen. Paul Bettencourt of Houston, sought to add his proposal as an amendment to another bill making various other changes to the state's election code, House Bill 1735. That led to a tense exchange between him and Buckingham, who argued Bettencourt's approach would make the Electoral College "obsolete."

"If we're going to force our Electoral College into a rubber stamp — against what our Founding Fathers wanted — why have an Electoral College at all?" Buckingham asked on the Senate floor.

Bettencourt, who insisted his amendment was "elegant in its solution," ultimately withdrew it.

Later acknowledging that lawmakers were beginning to "have a very lively discussion" on whether to bind electors, state Sen. Joan Huffman, the Houston Republican who chairs the State Affairs Committee, suggested making the topic one of the interim charges Lt. Gov. Dan Patrick directs members of the Senate to research between the current session and the next one.  

"I will ask for an interim charge on the issue at the appropriate time, and the lieutenant governor will make the ultimate decision as to whether it is issued," Huffman said in a statement Thursday. 

Elector-binding supporters will likely have a sympathetic ear in Patrick, who served as the Trump campaign's Texas chairman. He had called Suprun's decision a "slap across the face" to Trump's voters in Texas and was among the first elected officials at the time to raise the prospect of an elector-binding law for the state. 

Looking back on the session, people involved in the debate cite a number of reasons why a bill never made it to Abbott's desk, including the Texas GOP's influential opposition and the emergence of more pressing issues once the session got underway in January, a month after the Electoral College meeting. Abbott also never publicly weighed in on the issue beyond his remarks in December.

"Unfortunately the bill itself was hung up in the legislative process, but it is my understanding that the topic will be revisited as an interim study," Raney said in a statement. "We will use the information gathered in the interim study, and review the issue again before the 86th Legislature."

The Texas Tribune


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