When everyday Texans go to the ballot box, they get to vote for their representatives only once before being stuck with them for their term. No matter how many promises a politician breaks, voters don’t get a “do over” until it’s election season again; that’s just how the process works. However, in the Texas House, lawmakers are using a loophole in the rules to get a mulligan on their own votes.

One example this session took place on a contentious measure that hit the floor of the House last week—a texting while driving ban. In an unusual turn of events, the legislation received criticism from both the left and the right, with State Rep. Harold Dutton (D-Houston) joining with conservative Republicans to criticize the feasibility of the bill. However, this tale isn’t about nanny state legislation, it’s about legislative buffoonery and that’s where our story begins:

On Amendment #5 to the bill by Dutton, the House voted 70-69 on the question to table (and thus defeat) Dutton’s amendment. With such a close vote, the calls for verification rang out. After “verification,” it was determined that multiple members experienced “malfunctions” with their voting machines. The “true” margin was announced to have been 73-66.

Blaming the machines and flipping their votes from Nay to Yea were State Reps. John Frullo, Larry Gonzalez, Phil King, Susan King, and John Kuempel. Conversely, State Reps. Will Metcalf and Yvonne Davis also claimed machine malfunction and changed their votes from Yea to Nay.

Later, on Amendment #14, also by Dutton, the House was divided again. The motion to table Dutton’s amendment carried by a solitary vote, 71-70. Once again, upon “verification” the margin was more substantial, 77-65. Claiming mechanical error and flipping their votes to Yea on the motion to table were State Reps. Sarah Davis, John Frullo, John Kuempel, Ken Sheets, and John Wray.

How are these shenanigans allowed to happen? House Rules prohibit a member from changing their mind after the results of a vote have already been announced. The rules should stop members from changing their vote. However, there is one loophole. Rule 5, Section 55, states that a vote may be changed during verification if it was “erroneously recorded.”

Perhaps on a verbal roll call vote or some other method that existed before the innovation of voting machines, a vote could be “erroneously recorded,” but in the modern era the idea is almost absurd.

Texans know that no matter how many times the far right key on a piano is pressed, the result will be the same high note, rather than the deep, dark sound that the far left key makes. But that truth is effectively what members are denying when they assert that their voting machines “malfunctioned.”

The voting machine isn’t exactly complicated. Voting in the affirmative requires pushing the “Aye” button, against, the “Nay” button. Functionally, it’s a glorified light switch.

House Voting Machine (Close Up)

House Voting Machine

 

State Reps. Frullo and Kuempel had the audacity to assert that their machines encountered errors twice, though only when the margin was close, and not on any other votes that day. The sheer ridiculousness prompted State Rep. Dan Huberty (R-Kingwood) to joke on the matter.

“Parliamentary inquiry,” said Huberty with a smirk from the back mic. “Could we have Mr. Kuempel and Frullo’s voting machines checked before we vote tomorrow?”

The quip prompted guffaws throughout the chamber.

Despite what legislators allege, the true reality is that the there was no mechanical mishap, only member malpractice. Representatives miscalculated whether they could break from leadership on the issue and wanted to change their votes, or they just wanted to be on the winning team—and picked poorly. The time period between the vote and the “verification” provided an opportunity for last minute lobbying by leadership to whip members to change their votes.

Still, the worst part isn’t the ludicrousness of the claims, or the fact that members are voting after the vote—it’s the fact that none of this is reflected in the House Journal. Records only contain the margin of the original vote and the results of the “verified vote.” The data in this article was only obtained by review of the video feed in the archives.

Cary Cheshire

Cary Cheshire is the Vice President of Texans for Fiscal Responsibility. A 6th Generation Texan, Cary attended Texas A&M University was active in a number of conservative causes including Ted Cruz's Senate campaign. He has also worked on campaigns to elect conservatives to Congress and the Texas Legislature. Cary enjoys college football, genealogy research, and the occasional craft beer.

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