Engaging in Organized Election Fraud Activity

The 85th Texas Legislature created a new law in 2017 called Engaging in Organized Election Fraud Activity, which makes it a crime to conspire or commit one or more offenses under Titles 1 through 7 of the Texas Election Code.

This law was created by Section 62 of House Bill 1735^[1] and was codified at Section 276.011 in the Texas Election Code.

Effective September 1, 2017^[2], the new law takes aim at the widespread delusion of increasing voter fraud.

The new law also created its own definition of “conspires to commit.”^[3]

What is the current Texas law about Engaging in Organized Election Fraud Activity?

The current Texas law is as follows:^[4]

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a vote harvesting organization, the person commits or conspires to commit one or more offenses under Titles 1 through 7.

What is the penalty for an Engaging in Organized Election Fraud Activity conviction?

The law punishes convictions as “one category higher than the most serious offense listed in Subsection (a) that is committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony.”^[5] What this means is that the grade of misdemeanor or felony will be increased by one degree, such that a Class C misdemeanor would become a Class B, a Class B Misdemeanor would become a Class A, a Third Degree Felony would become a Second Degree, and so on.

However, the law also creates an interesting affirmative “defense” that would allow a defendant to remove the enhancement by proving “renunciation.”^[6]

---

Legal References:

^1. House Bill 1735, 85th Texas Legislature

^2. House Bill 1735, 85th Texas Legislature, at Section 65

^3. Texas Election Code §276.012(e), as created by House Bill 1735, 85th Texas Legislature, Section 62, effective September 1, 2017

(e) For purposes of this section, “conspires to commit” means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties.

4 Texas Election Code §276.012(a), as created by House Bill 1735, 85th Texas Legislature, Section 62, effective September 1, 2017

^5. Texas Election Code §276.012(b), as created by House Bill 1735, 85th Texas Legislature, Section 62, effective September 1, 2017:

Except as provided by Subsection (c), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that is committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony.

^6. Texas Election Code §276.012 (c) & (d), as created by House Bill 1735, 85th Texas Legislature, Section 62, effective September 1, 2017:

(c) At the punishment stage of a trial, the defendant may raise the issue as to whether in voluntary and complete renunciation of the offense the defendant withdrew from the vote harvesting organization before commission of an offense listed in Subsection (a) and made substantial effort to prevent the commission of the offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is the same category of offense as the most serious offense listed in Subsection (a) that is committed.
(d) In this section, “vote harvesting organization” means three or more persons who collaborate in committing offenses under Titles 1 through 7, although participants may not know each other’s identity, membership in the organization may change from time to time, and participants may stand in a candidate-consultant, donor-consultant, consultant-field operative, or other arm’s length relationship in the organization’s operations.