IMPORTANT UPDATE AND CORRECTION: Texas did enact a version of this requirement in a separate bill, SB 598. See my update here.

Texas’s SB 1, in my judgment, is a hodgepodge of sensible and strange rules that will add a bit more complexity and uniformity, sow a bit more confusion (especially among elderly absentee voters), and likely increase no one’s confidence in elections. Many of the critiques are right (including concerns of overcriminalizing innocuous behavior). Others are oddly misplaced. (For instance, it’s strange, to me, at least, to see critiques that the bill “without justification” creates a “two-tiered and arbitrary system.” The present law has tiers of rules, without much consternation–and, I think, it makes sense to require bigger counties provide more early in-person voting opportunities, and allow smaller counties to hold it only upon sufficient request, among other distinctions.)

With that mealy-mouthed wind-up, here’s my lament. The most disappointing thing in SB 1 is what it omits. It’s a change made after the original conference committee bill, SB 7, the one that prompted a legislative walk-out.

The old SB 7 (“tempered” by Democrats by the time it got to the conference committee report) included a phase out of direct recording electronic voting machines by 2026 and required use of paper ballots or a paper audit trail. (It’s Section 4.14 of the conference committee report, introduced in the Senate but not the House, but included in the conference report. There are details, too, about the potential fiscal impact on counties.)

That provision is gone from SB 1.

It’s disappointing, as there has been, in theory, bipartisan consensus over paper trails. “Kraken” lawsuits baselessly discussed “flipping” votes in electronic voting systems, which is impossible in essentially every jurisdiction under scrutiny as there was always a paper trail. Georgia’s excellent statewide audit in 2020 found a few mistakes–but few, and nothing so digitally-pernicious.

Eliminating direct response electronic voting systems costs money, and there are fights over who pays and when and how. There was some agreement in SB 7 to do it. And that vanished in SB 1 as enacted.

It’s a strange, sad tale of what might have been. If Democrats had stuck around for the first bill (given that it inevitably passed), would that provision from the conference report (in theory, what each chamber agreed to) make it into law? Did Republicans pull it out of some vindictive reaction, or becomes some balked at the cost on a subsequent go-around?

I’ve asked around but haven’t received a good response. So I end with the words attributable to another Muller: it might have been.