Texas is the second largest U.S. state (both in terms of area and population) and has more counties than any other, at 254. At the state level, the Secretary of State and Elections Division are responsible for overseeing elections across this large state.
At the county level, we see significant variation in how counties administer elections and to whom they delegate key election responsibilities. Each county administers its own elections and delegates responsibility to key county officials. Each county is governed by a County Commissioners Court. In many counties this body creates the specialized position of a County Elections Administrator to oversee county elections. Tex. Elec. Code § 31.031. In lieu of that position, however, other counties rely on the County Clerk or the County Tax-Assessor-Collector to take on that role. Even when there is a specific official—County Elections Administrator, County Clerk, or County Tax-Assessor-Collector—designated to oversee the county's election administration, the division of election responsibilities between these officials is not always clear. Also notable, in 2023 the state legislature passed a law removing Harris County’s County Election Administrator and forcing the County’s election oversight back into the hands of the County Clerk and County Tax-Assessor-Collector. This was seen as a highly partisan move by the legislature.
Texas also has a number of safeguards in place intended to ensure the integrity of its election processes, such as giving the Secretary of State oversight power to ensure the uniformity of state election administration and requiring them to pursue civil action in court to compel election officials to meet their statutorily required election duties. The Attorney General is also empowered to pursue criminal violations of election law. In regards to the canvass and certification of elections, the County Commissioners Courts have an non-discretionary duty to canvass without delay. Moreover, County Commissioners are empowered to take over the County Judge role to ensure the canvass proceeds.
Nonetheless, through Informing Democracy's research into the canvass and certification of elections as well as our examination of the anti-democracy activity in the state, we identified a number of potential vulnerabilities to the integrity of these roles and processes. These include the complexity and ambiguity around election administration structure in the state, potential challenges to certification, delay tactics, and extreme partisanship targeted at Harris County in particular.
While past cycles have been relatively uneventful regarding efforts to refuse or delay local certification of election results, it remains a potential area for concern. In addition, other vulnerabilities call into question the impartial administration and oversight of elections due to the Republican-led state government enacting clearly partisan laws to target Harris County, home to Houston and the largest concentration of Democratic votes.
Given the size and complexity of the state, the Secretary of State and their Elections Divisions face a significant administrative challenge in overseeing elections. The Elections Division is a complex bureaucracy with concordant funding and staffing challenges. This includes the need to hire enough election experts to engage with and support county election administrators. The degree of the burden here is also affected by whether or not the State Legislature and the Governor allocate sufficient resources.
At the county level, there is considerable variation in county administration and ambiguity in laws governing how election duties can be delegated. It is, therefore, not always clear under Texas law which county official has responsibility for which election duties and in some cases, this can lead to officials being endorsed for acting outside their direct authority. For example, if the County Clerk acts outside their legal authority—by exercising a duty or function delegated to the County Elections Administrator where they are not serving in that role—that action has legal effect as long as the County Elections Administrator does not object to it. Tex. Elec. Code § 31.047.
The law also provides a mechanism for attempting to sort out this ambiguity. When needed, the County Elections Administrator or County Clerk acting as administrator can request that the Secretary of State provide them with clarification about who is responsible for performing a certain duty or function. Tex. Elec. Code § 31.045(b).
These provisions help to provide some mechanism for sorting out this ambiguity and potentially resolving conflicts among election officials should they occur. However, this ambiguity and need to go to a third party to resolve disagreements could create delays in the counting and certification process should there be considerable disagreement between officials over the ownership of key responsibilities.
The state of Texas played a central role in furthering Donald Trump’s false "election stolen" claims when Attorney General Ken Paxton sued to overturn the election results in Georgia, Michigan, Pennsylvania and Wisconsin—a case rejected by the Supreme Court. NBC News, 12/11/2020. While the 2020 results in Texas were not in question, in 2021 Governor Greg Abbott made “election integrity” one of his emergency items for the state legislature to address. The result was a law described by the Texas Tribune as “sweeping legislation that further tightens state election laws and constrains local control of elections by limiting counties’ ability to expand voting options.” The Texas Tribune. The Texas Tribune, 9/7/2021.
In Texas, the canvass and certification process is clearly ministerial or non-discretionary and so far we are not aware of any examples of direct votes against certification in the state. Nonetheless, given the national climate of election denial and certification challenges, this remains a potential issue in the state. Should certification be challenged in Texas there are several legal mechanisms to ensure the completion of county canvass and certification. These protections include tight state canvass deadlines, the power of County Commissioners to take over the County Judge role to ensure the canvass proceeds, and most importantly, the Secretary of State's obligation to go to court to force county officials to certify should they refuse. Tex. Elec. Code § 273.081. See Legal Protections for Canvass and Certification for more details.
While we have not seen direct evidence of bad actors attempting to prevent certification in Texas, losing candidates have used the election code's permissive recount provisions and election contest rules in bad faith to drag out their challenges. Election denial activists made other challenges claiming counties’ voting equipment was not properly certified and officials face increased recount petitions, which can strain resources. Votebeat & The Texas Tribune, 5/2/2024.