Ginsburg Wasn’t So Wrong About Texas and Veteran’s I.D.s

As a number of news organizations have noted, Justice Ginsburg’s dissent in Veasey v. Perry contained a minor factual error – originally, the dissent contained a sentence stating that Texas did not accept veteran’s I.D.s as acceptable forms of photo I.D. in the polling place.

In fact, this statement was true when S.B. 14 was signed into law in 2011veteran’s i.d.s were not acceptable forms of identification, specifically because they were not subject to regular renewal, and were not regarded as the equivalent of active military i.d.s.

Really, the statement that the law doesn’t permit the use of veteran’s I.D.s is still true, or at least would be true, but for a clever bit of sophistic maneuvering by the State.

Nothing in the language of the law has changed between 2011 and now, and so Justice Ginsburg’s mistake is entirely understandable. In fact, to have not spoken in error, she would have had to know about the unwritten internal politics surrounding the implementation of the voter I.D. law.

When Section 63.0101 of the Texas Election Code was amended to impose the requirement for photo I.D., subsection (2) of that section defined one form of acceptable I.D. as being “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.”

Media sources and veterans groups castigated the law for what what veterans groups saw as a betrayal of their constituency. The outrage caught Governor Perry and the bill drafters by surprise, and came at an awkward time for Governor Perry (who was at that time campaigning for the Republican nomination in the 2012 Presidential election, and who was touting his support for a strong military).

The proponents and drafters of the Texas picture I.D. law had been so eager to disenfranchise minorities, the poor, the disabled, the elderly, and students, etc., that they had rushed headlong into accidentally disenfranchising a large, politically active, and vocal voting bloc with symbolic importance for conservatives.

Oops.

The political reaction was swift. After delicate consultations (the rumblings of which are lightly hinted at within an October 17, 2013 memo issued by Keith Ingram, which among other things, urges county election officials to “discard” earlier materials regarding voter I.D.), the Secretary of State determined that the proper interpretation of the law was that veteran’s I.D.s were acceptable because they didn’t expire (glossing over the fact that technically, veteran’s I.D.s are not military I.D.s, and veterans are not members of the military). But things were briefly touch and go between groups touting veteran’s rights and the State of Texas.

Of course, what the episode illustrated in a more general way was the fundamental hypocrisy of the 2011 law – that the law was subject to ad hoc changes in its application and textual interpretation to benefit one group of voters over another, if those voters happened to be “the right kind of voters.”

Veasey v. Perry – Commentary and Fallout After the Supreme Court Order

There have been a number of news stories and editorial commentaries regarding the decision by the U.S. Supreme Court to allow Texas to conduct an illegal election; here are a few of particular interest -

Scott Lemieux at The Week asks why the Supreme Court allowed Texas to hold an unconstitutional election (his answer, more or less, is that the conservative justices are more loyal to the Republican Party than they are to the preservation of their own legal principles – http://theweek.com/article/index/270228/why-the-supreme-court-is-allowing-texas-to-hold-an-unconstitutional-election

In a witty, angry piece, Jonathan Chait at New York Magazine describes the GOP strategy to simultaneously attract and disenfranchise minority voters – http://nymag.com/daily/intelligencer/2014/10/gop-trying-to-woo-suppress-minority-vote.html

Rick Hasen describes the importance of Ruth Bader Ginsburg’s canary-in-a-coalmine dissent from the Supreme Court’s order, in Slate – http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/ginsburg_s_dissent_in_texas_voter_id_law_supreme_court_order.html

Professor Hasen also tracks down a minor factual error in Justice Ginsburg’s dissent – http://electionlawblog.org/?p=67193

The Dallas Morning News (that hotbed of liberalism) takes the time to excoriate the Supreme Court for its terrible decision – http://www.dallasnews.com/opinion/editorials/20141020-editorial-in-voter-id-ruling-justices-side-with-more-obstacles-at-the-polls.ece

Michael Waldman at Politico explains how the Supreme Court has made a mess out of our elections – http://www.politico.com/magazine/story/2014/10/supreme-court-voting-rights-112026.html#.VEbSuhZ0akI

Ari Berman at The Nation unsparingly points out that the Supreme Court has eviscerated the Voting Rights Act – http://www.thenation.com/blog/183561/supreme-court-eviscerates-voting-rights-act-texas-voter-id-decision

Mr Berman goes on to describe how across the country, the Republican Party is manipulating voting laws to its advantage – http://www.thenation.com/article/182233/gop-winning-war-voting#

Bob Bauer at More Soft Money Hard Money points out the errors in judicial judgment that opened the floodgates on state voter id laws – http://www.moresoftmoneyhardlaw.com/2014/10/crawford-politics-voter-id/

The Wall Street Journal notes the longer-term legal questions that must now be resolved – http://online.wsj.com/articles/voter-id-actions-push-fight-past-november-1413760050

If you don’t have time to read all these pieces, let me summarize the general consensus emerging across the country – in allowing Texas to conduct an illegal election, the U.S. Supreme Court did something monumentally wrong, further tarnishing its already discredited reputation, and eroding what remains of the public’s trust in the rule of law.

As I mentioned in my critique before the Court ruled to uphold the 5th Circuit’s stay of the trial court’s injunction, the Supreme Court has laid out a banquet at which every losing candidate can feast, thanks to the synergistic effects of the trial court decision and the state laws allowing for election contests (in particular, I would direct your attention to Title 14 of the Texas Election Code, and especially to chapters 221, 231, 232, 241, and 242 of that title). The contests of the statewide executive offices and the state and federal legislative seats will be a little trickier, because of the role played by the Texas Legislature as the tribunal before which such complaints are filed.

But for local races, the contests just need to be filed in state district court. That’s not to trivialize the procedural details, which require familiarity with the local rules of court, the Texas Rules of Civil Procedure, and the unusual modifications to discovery schedules, pleadings, and hearing schedules that are peculiar to election contests. But for any litigators, the single most daunting element of an election contest (namely, collecting evidence showing that an irregularity in the conduct of the election had a material effect on the outcome of that election) just got so, so much easier.

What’s good news for losing candidates is bad news for the winners, which could make for some strange bedfellows among civil rights advocates and affected candidates who are upset with the natural consequences of the Supreme Court’s ruling.

What’s The Administrative Cost of Voter I.D. in Texas?

[Post corrected to reflect that DPS didn't get funding through a contingent rider in 2011 for improvements in drivers' license services].

Yesterday, I got an interesting email from a reader asking a slight variation on a question I’ve looked at before. Previously, I’ve examined how expensive it is to acquire an election I.D. for an individual voter, but this reader asked, “Would you have any idea how much it will cost the State of Texas to issue the “free” ID cards and where that money is coming from?  Is DPS covering the cost and if not, which agency will cover it?”

After I took a stab at answering the question, the reader asked in passing if I had ever blogged about the issue, and I thought, “no, but why not?”

First, the question is an excellent one, and not easily answered based on the limited budget information provided by the State of Texas. The most accurate answer would be for me to say, “I don’t know” and leave it at that, but there are some clues that allow us to guess what Texas taxpayers spend to implement the provisions of the 2011 Texas picture I.D. law.

Digging through the DPS budget is a bit numbing, so let me summarize what I found, before you have to go read through my long post.

It looks like the cost of implementing the issuance of “free” election identification certificates might have been included in a 2011 contingent appropriations rider for improvements in DPS computer systems, database management, and driver license systems, and that the cost was part of a larger $64 million package. My guess is that voter i.d. didn’t account for the whole $64 million (although that would certainly be eye-opening).

 

What complicates things is that the contingent rider never went into effect – the associated public safety bill (S.B. 9, 2011 Tex. Leg., R.S.) never passed, and the money that DPS might have hoped for didn’t materialize, at least not in that one-time rider.

 

My guess is that the portion of the cost to the taxpayers attributable to the free I.D. program in Texas is somewhere in the neighborhood of $14-20 million, based on cost estimates from other states that adopted picture i.d. requirements and that are a little less shy about discussing their budgets.

(Although I’m not consistent about this myself, I think it’s more accurate to call the Texas law a “picture I.D. law” than a “voter I.D. law.” Texas already had voter I.D. law for over a hundred years, and it worked perfectly well for that entire time, it just didn’t involve a restrictive list of a few select types of picture I.D. in order to qualify to cast a ballot).

WHAT I FOUND WHEN I LOOKED IN THE FY2012 DPS BUDGET REQUEST

Anyway, proponents of new, punitive picture I.D. laws tend to be quite shy about discussing the price tag associated with providing free I.D.s – that’s been the pattern not just in Texas, but also in other states such as Pennsylvania, Missouri, Georgia, and elsewhere).

 

But this budgetary reticence is quite pronounced in Texas, and might be worse here than in other jurisdictions, in part because the Texas Legislature has proven to be very allergic to the idea of spending any state money whatsoever on social programs or services.

In 2009, the proponents of an earlier version of the strict photo-ID requirements for voting were unsuccessful in getting that law passed (H.B. 125, 81st Leg. R.S. (2009)). The reason for that difficulty was that the Lieutenant Governor (David Dewhurst) feared the legal and political consequences that would result from a passage of the law. But the specific mechanism by which the law was killed was with the addition of a fiscal note.

 

The Texas Legislature is famously hostile to the creation of any program, benefit, or service that costs money to implement. Therefore, a quick and easy way to derail legislation is to have the Texas Comptroller or some other state agency attach a fiscal note estimating the cost of implementation of the law.

Like the 2011 bill that ultimately passed and became law (S.B. 14, 82nd Leg., R.S. (2011)), the proposed 2009 law required the Texas Department of Public Safety to issue photo i.d at no cost upon request from voters who qualified for them. DPS (allegedly bowing to political pressure from the Office of the Governor) declared that any expenses associated with the issuance of I.D.s could be absorbed seamlessly into the existing agency funds.
The Secretary of State’s office, meanwhile, indicated that statewide voter education relating to the 2009 law would require a one-time expenditure of $2 million. Although this is a minuscule amount in comparison to the total state budget, it was more than enough of a fiscal note to torpedo the bill.
In 2011, the bill’s supporters were better organized, and applied political pressure more effectively to avoid the pitfalls that had doomed the 2009 bill – the new law was declared to be completely cost-neutral to the state. In other words, DPS and the Secretary of State both declared that the adoption of more restrictive photo I.D.s would have absolutely no impact on the state budget.
Needless to say, most people thought that the lack of a fiscal note was crazy. How could an entirely new photo I.D. program be launched and implemented statewide at zero expense? Nevertheless, the photo I.D. program officially costs nothing to the State. (And to be fair, this pathological need for public reassurance that programs which will obviously cost money must be enacted at no-cost is a not-uncommon event in Texas lawmaking, and is certainly not peculiar just to election bills. It’s part of a larger endemic structural problem with the state budget process, and with our state’s simultaneously hilarious and tragic inability to make use of deficit financing in any sort of mature or intelligent way).
No separate line-item accounting has been done for free I.D.s, and DPS has issued so few of the I.D.s that the variable costs are probably quite low. But that still leaves the fixed costs that are more-or-less unaffected by the level of demand for the free I.D.s (equipment and computer programming costs, employee training, advertising, etc.)
To get some sense of costs, I looked at the reported estimates for the fixed costs associated with implementation of changes in voter I.D. requirements in other states.
State officials estimated that the costs for implementation of picture I.D. laws were over $16 million for Missouri and around $11 million for Pennsylvania, but there was considerable uncertainty about these numbers. As with Texas, both of the other states tended to low-ball the estimated costs in response to legislative inquiries, (for instance, proponents of the law in Pennsylvania estimated a budget cost of just $1 million, paid for with spare Federal grant money for implementation of the Help America Vote Act of 2002).
There are a lot of variables here that make it hard to treat costs in other states as being directly comparable to the costs in Texas. In Texas, administrative costs associated with statewide laws are often shifted “off the books” to county budgets and paid for with county property tax money. Also, it’s fair to point out that in terms of population, Texas is significantly larger than either Missouri or Pennsylvania, and that the Texas picture I.D. law was not directly comparable to the generally more forgiving laws adopted in other states.
My guess is that $16 million is probably at least in the same order of magnitude as the costs experienced by the state (i.e. that the taxpayer’s burden of voter I.D. in Texas is somewhere in the tens of millions of dollars, with a wide margin of uncertainty due to the lack of any public audit). Some of the variables likely make the program cheaper in Texas (i.e., the fact that so few people who lack adequate I.D. have bothered to jump through the hoops to get picture I.D.s for voting in Texas), and some variables make the Texas program more expensive (the physical size of the state, the number of DPS offices, the significantly larger population, and the concomitant increase in fixed labor and equipment costs).
YOU KNOW WHAT’S FUN? READING A 1,038 PAGE BUDGET REQUEST
The DPS budget request for 2014-2015 is online (warning – the .pdf is 1,038 pages long), and the parts that apply to this question are found in Section 3.A.71 (rolled into driver license services, which is the division of DPS that issues the free election I.D.s).
As a general overview, the actual expenses of the division (before implementation of the voter I.D. law, which began in very late FY2012) for FY2011 (fiscal year 2011, from Sept. 1, 2010 to Aug. 30, 2011) had been just shy of $19 million, the estimated expenses for FY2012 were just shy of $22 million, and the budget for 2013 was $25.6 million. Despite the one-year $3.6 million bump in the budget compared to the previous biennial funding request (which had been made when the 2011 picture I.D. law was still just a twinkle in Rep. Debbie Riddle’s eye), the 2014-2015 requests were for a modest increase (a smidge less than $23 million for 2014, and $22 million for 2015).
But … this does not tell the whole story. Article IX, Section 18.09 of the 2011 general appropriations act (H.B. 1 (2011)  included a contingent rider for around $64 million (broken into $27.7 million in estimated FY2012 expenses, and $36.3 million in the FY2013 budget) to cover “improvements in the driver license system” for 2012-2013. The related rider in Article IX, Section 18.07 of the same budget included provisions for an increase of 112 FTE (full-time equivalent) staff positions in FY2012 and 361 FTE positions budgeted for FY2013 to implement improvements of the driver license system.
But DPS would only get the money if another bill (describing various improvements in DPS drivers’ license services) passed. The other bill (S.B. 9, 82nd Leg. R.S. (2011)) didn’t pass, and so the contingent rider failed. But was that rider at least possibly part of the funding for voter I.D.?
Digging further into the budget, one finds that the Drivers’ License Division also budgeted about $7 for capital improvements in FY2013, having estimated that it would spend roughly that amount in FY2012.
But there’s only so much that one can read into all this – DPS had a number of budget concerns associated with the driver license system – most of these concerns had nothing to do with the issuance of free election I.D.s. For one thing, DPS was faced with a number of complaints regarding poor customer service for such things as driving tests, motorcycle safety, online license renewal, and records management, and years of budget cuts had drastically reduced staffing in the Drivers’ License Division.
Further complicating matters is that DPS separated out some of its requests for improvements in communications and IT infrastructure (directly impacting issues like identification records and inter-agency database operations with the Voter Registration section of the Secretary of State) into line items for capital improvements to its central headquarters division. As a result, it’s likely that pointing to any one line item and declaring “that’s how much the free I.D.s cost” is risky, since the actual expenditures for that system could be subsumed under multiple funding sources relating to DPS field office improvements, computer systems, field office staff, customer service improvements, and so on.
In other words, the DPS budget probably folds the cost of free I.D. into at least two or more funding sources, and that program probably shares resources with at least two other strategic funding objectives (namely, general improvements to the driver license system, and general improvements to DPS computer systems and database management).
On March 31st of this year, the plaintiffs in Veasey v. Perry asked how much the election identification certificate program cost - as part of a discovery request ahead of the voter I.D. trial. (See item 6 on page 8 of the discovery request). As far as I can tell, the State of Texas never answered this question (presumably arguing that no record exists of the cost of the program) – if the answer is in the court records, I’d appreciate a cite.
My guess is that the fixed “start-up” cost of election identification certificates in Texas was expected to be some fraction of the $36 million appropriations rider for FY2013 for “improvements to the driver license system.” When that source became unavailable, I suspect there may have been some “robbing Peter to pay Paul” shifting of funds from capital improvements and appropriations for database and inter-agency communication to cover the expense.

Aside from its historical allergic reaction to spending money, there’s probably another reason why Texas is so coy about the start-up costs. Given the miniscule number of people who have applied for election identification certificates, the per-unit cost is huge. If you were at DPS, would you want to admit that you had spent millions in order to get laminated cards made for half a dozen people?

Some Encouraging Thoughts

In the midst of excoriating both the 5th Circuit and the U.S. Supreme Court for their dreadful decisions, I am encouraged by several bits of news.

1. Charles Kuffner Reports A Huge Upswing In Voter Registration Numbers

As some columnists and academics have speculated, more restrictive voter I.D. laws may have contributed to a surge in voter registrations. Among other things, fear (of the loss of voting rights) and anger (towards the officials and institutions responsible for these restrictions) may have energized a kind of immune-system response by the body politic – Mr. Kuffner reports a tweet by the Texas Secretary of State that voter registrations in Texas have topped 14 million, a substantial and relatively recent increase following a decade of more-or-less stagnant growth (Texas voter registration has bobbled around 12 million since 2004, with predictable surges before presidential elections, and gradual declines immediately afterwards).

This is very good news, and (as Mr. Kuffner notes, is a testament to the hard work being done by volunteers across the state in this election cycle).

2. Even An Apologist For Voter Suppression Thinks that Texas Photo I.D. Requirements Are Doomed

I don’t have much use for J. Christian Adams or his generally awful pandering to the extreme right-wing. He’s like my evil twin (my much higher-profile evil twin) – like me, he’s an election law attorney, and like me, he lost a government job for political reasons (in his case, the Department of Justice). Also like me, he reacted to his termination by starting a blog.

As a representative of the Mirror Mirror Universe, Mr. Adams (who confusingly lacks the goatee that is more-or-less mandatory for male residents of the evil alternate reality) does a fair job of collecting and republishing various defamatory rants and screeds (Ebola-Infected Taliban Prayer Rugs Found In Preschool! North Korean Troops Massing In The Florida Panhandle! Biden Caught Drinking Blood In Sewer Lair!) He shares Greg Abbott’s view that the trial court decision in Veasey v. Perry is a deplorable accommodation of the peasant class, and a terrible miscarriage of justice that must be remedied at once, before the lower caste rabble get swept up in revolutionary zeal.

But Mr. Adams is still a lawyer, and his professional training obligates him to inform his audience that while the decision is an outrageous attack on right-wing efforts to purify, sanctify and cleanse the democratic process of any lingering secular humanism, that there are no valid legal grounds for an appeal by the defendants, and no likelihood of the decision being overturned by an appellate court.

On this point, Mr. Adams and I are in complete agreement.

3. A New Group of Scrappy Underdogs Are Emerging In Local Races

Another thing that Mr. Kuffner has pointed out is that there are new entrants to local politics who are challenging safe Republican seats in heavily conservative areas.

This suggests a new sociopolitical benchmark, the Quixote Index, which would be an abstracted measure of persistence by liberal candidates running in long-shot local elections.

Persistence pays off – candidates with staying power who are not discouraged by long odds (1) drain resources from their opponents, (2) place themselves to take advantage of unexpected vulnerabilities, (3) gain organizational experience, (4) increase brand visibility and name recognition, and (5) benefit from tectonic shifts in the political landscape.

“Bottom-up” strategies for gaining political power are nothing new, and I don’t generally think of myself as a proponent of “bottom-up” coalition-building to the exclusion of other strategies – I’m more of a “whatever works” supporter – actual shifts in political momentum come from both the top and the bottom of the ballot, and the only reason why any distinction is made in the first place is because even though the underdogs should spend their money everywhere, they are constrained by their underdog status and lack of resources to pick their battles.

What I suspect is that as momentum and pressure builds towards a more profound political realignment, more and more long-shot candidates for local offices leave off worrying or caring about the supposed impregnable strength of their opponents, the trite, timid, reactive advice of their advisers and consultants, and all the other obstacles in their path.

In part, candidates run in impossible races because they are gambling that the tide is turning in ways too subtle to be seen or understood by the smart money (And by the way, the smart money is often stupid about paradigm shifts). In part, the mere act of running is both the cause of and the reaction to that turning of the tide of public thought.

Ross Ramsey wrote a piece recently for the Texas Tribune, interviewing conservative political consultant Wayne Thornburn about the 2014 election, and discussing “Red State: An Insider’s Story of How the GOP Came To Dominate Texas Politics.

Mr. Thornburn is understandably dismissive of Democratic Party candidates’ chances, given his background and expectations. Nevertheless, he does see a parallel between the fall of the once-monolithic segregationist Texas Democratic Party and the waning prospects of the current Texas Republican Party.

In Mr. Thornburn’s view, the 1950s-era Texas Republican Party was organizationally stronger and better situated to take advantage of openings than the Democratic Party is now.

I disagree with his historical assessment – Texas Democrats have a number of organizational strengths that the “honorable opposition” lacked in the 1950s, including (1) a geographic power base with unassailable safe districts in South Texas and the major cities, (2) mature fundraising and campaign networks, and (3) a restive population of still-living and relatively young current and former officeholders who have personal experience in holding elective office in state government. In comparison, Texas Republicans of the 1950s had (1) no geographic power base, (2) no campaign networks or mentoring, and very little in-state fundraising, and (3) no living cadre of current or former officeholders.

While I might disagree with Mr. Thornburn’s (understandably partisan) dismissal of Democratic Party chances, I do note that Mr. Thornburn, a staunch Republican political veteran, nevertheless believes that the state Republicans are on the losing side over the long term (“six to eight years”) if the Texas Democrats make a sustained effort.

The Texas GOP is divided, bickering, and ideologically adrift. As it turns farther and farther to the right, it loses moderate votes. Eventually, those lost votes will translate into lost elections. I think it’ll happen in 2014, Mr. Thornburn thinks it’ll happen in 2020 or 2022, but we agree that it’ll happen.

Out of curiosity, I took a look at one of the earliest successful congressional elections of a Texas Republican after Reconstruction – that of Representative Bruce Alger, who represented the Dallas area from 1955-1964. Representative Alger was the sole Republican in the Texas Congressional delegation until 1963.

What’s interesting is that Representative Alger’s 1954 election presaged the tactics that would eventually lead the Texas Republicans to triumph. Alger was not expected to win in 1954, but defeated the former City of Dallas mayor Wallace Savage by about 6%. Mayor Savage’s political weakness among Southern Democrats was that he had pushed generally for additional housing for blacks and fair treatment of black workers in Dallas, and he had desegregated the city ambulance service.

Bruce Alger was unusual among pre-Civil Rights-era Republicans in that he broke with his party on segregation (which at the time the Republicans were still against) and civil rights issues (which the national Republican Party still championed), was vehemently opposed to any civil rights legislation, and was solidly in the bosom of the (traditionally Democratic Party) white Dallas segregationist elite.

His success and personal mentoring helped John Tower win LBJ’s Senate seat in 1961, thereby planting the seeds of the Southern Strategy (i.e., the Republican Party’s strategy of opposing the Civil Rights movement and appealing to Southern segregationists), and he only fell from grace after JFK’s assassination as the result of matters unrelated to race, when his obstructionism on regulatory matters, his inability to negotiate, and his unrepentant virulent hatred of JFK began to look insensitive and unseemly. In short, he was the proto-Ted Cruz.

Today, all the factors that had worked for Bruce Alger and made the Southern Strategy successful work against the Republican Party in Texas.

A commitment to the ideal of racial equality is now much more solidly incorporated into our national culture than it was in the 1950s, and segregationist leanings are much less useful politically than they once were. (Racism remains a powerful motivating factor among a core group of voters, but must be communicated elliptically and with muted rhetoric, except in private).

Additionally (and thanks to the same Civil Rights movement that so effectively changed the tenor of cultural discussions of race), minority voters have more leverage in elections today than in the 1950s, and can therefore exert at least a tenuous influence on election outcomes.

Finally, by yoking its party platform to the concerns of radicalized poor rural whites, the Republican Party has had to adopt unpopular militant policies regarding abortion, gay marriage, resource management, education, housing, religion, government, health care, immigration, the environment, and so on. The party is caught on the horns of a dilemma.

If the Republican Party was able to successfully embrace segregation and pull a complete 180-degree reversal on civil rights within the space of a decade in the 50s and 60s, it certainly has the organizational capacity to change course again, just as violently, and outdo the Democratic Party on social justice issues.

Because of the overall homogeneity of American political discourse (which is always aimed at the mainstream centrist voter), and because the national Democratic Party is currently quite conservative, there’s plenty of room for a completely unrecognizable leftist Republican Party (maybe it would look like some hybrid of Netherlands-style social welfare and extreme libertarianism). But the problem is that such a radical alteration would be the end of the Party – it would lose its shrinking voter base completely, and would not be able to court a leftist voter base fast enough to make up for the losses.

The Texas Republican Party is sitting on an ice floe that is starting to melt and crack. The party membership is angry, cold, and uncomfortable, and (maybe) regrets having picked this particular ice floe back in the day, but sitting on the ice is preferable to the inevitable dunking in the freezing water. They can’t run, and they can’t stand still, and so they just have to close their eyes. Political maneuvers like redistricting, picture I.D., limitations on voter registration, and so on, are just the involuntary anticipatory muscle-clenches that come immediately before the dunking.

Tomorrow (October 20), early voting starts. Go vote!

Well, At Least Ginsburg, Sotomayor, and Kagen Spoke Up

This is shameful. The U.S. Supreme Court (usually such a pro-law and order institution) has ruled that the risk of “voter confusion”justifies breaking the law.

How Would I Have Argued For Texas on the Emergency Stay Issue?

Attorneys representing the State of Texas on the picture I.D. law have a tough job, a fact that I should probably emphasize from time to time – an attorney isn’t the client, but just the conduit for the client’s assertions. Heck, back in the day, I did legal work defending the denial of insurance, retirement and disability benefits in circumstances that would corrode your soul, so I do have empathy for those toiling in the Office of the Devil’s Advocate.

So maybe I was a little mean about the Texas Solicitor-General’s 74-page bolus of overripe stew in defense of keeping the voter I.D. law in place for the November 2014 election. A fair riposte to my skewering of that brief would be to ask, “So, smart guy. How would YOU defend the patently indefensible voter I.D. law?”

Here’s how:

  • First, no matter what argument I made, I wouldn’t take 74 pages to lay it out. That’s just embarrassing and sloppy. C’mon guys, it’s called a “brief” for a reason.
  • Second, in general, I wouldn’t bother to defend the voter I.D. law. at all, because that’s not the issue before the court. I wouldn’t attack the factual findings of the trial court; I wouldn’t bring up any of the patently offensive (and sometimes factually false) arguments in favor of the voter I.D. law. The issue before the Supreme Court isn’t “Was somebody mean to the widdle-bitty State of Texas? Did that meany-weeny district court go and issue a mean, nasty decision against Texas?”
  • The issue before the Court is, “Did the 5th Circuit Err in Suspending the Effect of the Corpus Christi Trial Court’s Injunction Against the Use of Texas Picture I.D. Laws in the November 2014 Election? It was provocative, dangerous, and hot-headed for the State to rave on and on about how bad the trial court’s decision was. Instead, I would have recommended just saying something like this:
    • “After the trial court made its findings of fact and conclusions of law, it issued a clarifying order at the request of the State. In that order, the judge added an immediate injunction against the use of the existing I.D. law. In so ruling, the judge failed to describe any considered analysis of the balanced costs and benefits to the parties resulting from the issuance of such an injunction.”
    • “If briefing had been invited by the trial court relating to the costs of imposing the injunction, the State of Texas would have presented evidence that the suspension of the voter I.D. law at this remove from the start of the election would cost the State an estimated $5 million in opportunity costs, wages and other labor costs, and materials. Additionally, local costs to each of the county election offices in Texas would amount to an aggregate amount of between $4 and $12 million, resulting in an increase of roughly $7 in the per-vote expense of conducting the election (assuming a turn out of roughly 20% of the total number of registered voters (2.4 million ballots), and an increased administrative expense of up to $17 million aggregated across all government jurisdictions conducting elections in November).”
    • “In failing to account for the administrative costs, the trial court’s order failed to engage in the sort of factual analysis required when making judicial alterations in the manner in which an election is conducted. Purcell v. Gonzalez, … [cite omitted].”
    • “Therefore, the State moves that the emergency stay be upheld, and that the substantive issues relating to the administrative burdens imposed by the injunction should be remanded to the trial court for further proceedings not earlier than a date on or after the conclusion of the November 6, 2014 general election.”

See? Easy … inoffensive … and brief. Rather than proudly defending the indefensible (and by embracing over-the-top rhetoric, echoing the nutty tone of the state’s worst racists and lunatics), I would focus on a narrow procedural issue.

Frankly, I think even this issue is a loser – the plaintiffs can simply say, “Okay, the administrative burden increased. But the harm caused by the enforcement of the picture i.d. requirements (i.e., the State’s ongoing violation of the Fourteenth Amendment) is so overwhelming, and of such grave consequence to the integrity of the election, that the additional expense associated with the injunction pales to insignificance against that harm.”

If the voter I.D. law is enforced due to the emergency stay, every losing candidate in the November 2014 election in Texas will have potential grounds for filing election contests immediately afterwards, simply by arguing that within the context of each of those elections, it will be factually impossible to determine whether the outcome of those elections reflects the will of the voters who would have voted but for the continued enforcement of the illegal voter i.d. requirement.

You want to talk about administrative expense – there’s an administrative expense. Consider the disruption, as every single race (and especially every close race) becomes subject to an election contest in state district court, with quite good chances of success for those suits that are competently argued.

That’s every school district board race, every water district bond race, every county, district, state, and federal race.

Consider a hypothetical candidate running for the office of Mayor in a small town in the November 2014 election.

When the dust settled after the election, Candidate Loser had 110 votes, and Candidate Winner had 127 votes.

Now assume that the town’s demographics are (for the sake of making the math easier) roughly similar to the state demographics (i.e., about 12% African-American, about 40% Hispanic, and about 48% white). Assume that the town has 1,000 residents of voting age, and of those residents, 120 are African-American, and 400 are Latino or Hispanic, for a total of 520 members of a protected class of minority voters, or at least potential voters.

Assume that the total number of registered voters in the town is 800. Of those voters who are registered to vote, Loser determine that 34 (9% of 384 of the voters) are white residents who lack adequate I.D., 24 (25% of 96 of the voters) are African-American residents without sufficient I.D., and 51 (16% of 320 of the voters) are Hispanic residents without sufficient I.D. (The percentages reflect the statistical tendencies not to have sufficient I.D. Notice that there are statistically significant differences among particular groups when tested for adequate I.D., and these differences are based on race).

Let’s assume that if those residents had I.D., they would have voted in the same proportion as the qualified voters with sufficient I.D.s. Turnout was 237 out of 800 registered voters, or 29.625%.  So that’s ten missing white votes (roughly 30 percent of 34), 8 missing black votes (roughly 30 percent of 24), and 15 missing Hispanic votes (roughly 30 percent of 51).

Now, the margin by which Loser lost was 17 votes, and there are 33 people who would have voted, but for their lack of adequate I.D. Maybe not all of these voters would have voted for Candidate Loser. But suppose Candidate Loser was disproportionately favored by minority voters – through interviews and exit polling, Loser has determined that black and Hispanic voters were significantly more likely to favor that side of the ticket. Of the 33 “gave-up, no reason to try to vote” voters, 23 were minority voters. But Loser only needs to find 18 more votes.

Assuming Loser mounts a competent election contest, Loser can simply ask to be declared the winner. Or, if there’s no money and time to subpoena I.D.-less registered voters, Loser can at least raise enough doubt about the integrity of the election to force a new election. Voila!

Meanwhile, the disenfranchised voters in Smalltown all have a civil cause of action against the State of Texas for violating their voting rights.

Now, pull upward and away from Smalltown, to take in a larger view. Observe the glimmering street lights and lighted houses across the state – the clumps of population strung like beads along the roads. All those towns … (around 1,100, although admittedly not all may be having elections). All those school districts (also roughly 1,100, most of them forced by recent changes in the law to conduct their elections in November of even-numbered years). All those water districts (1,600). All those hospital districts, and library districts, and road districts, and airport authorities, and special law districts (who knows the numbers for sure? Let’s say 350 to be conservative). All those counties (254), with their multitudes of offices up for election (two commissioner seats, county judge, various district court judgeships, etc). All those state legislative districts (181, of which roughly 168 are up for election). All those U.S. House of Representatives seats (36). All of those statewide offices (Governor, Lieutenant Governor, Attorney General, various seats on the Texas Supreme Court and Court of Criminal Appeals, Land Commissioner, et cetera, ad nauseum).

All those elections. All those thousands of elections.

Now, put yourself in the position of the Texas Secretary of State. Can you say with confidence that none of those elections are going to be squeakers? Are you sure that the margin of victory for all the winning candidates in those many, many elections are going to be so large that no loser could possibly argue that they would have won, but for the loss of the disenfranchised vote.

Because what the 5th Circuit has stupidly done is open the door to a tidal wave of election-related litigation.

In a typical election year, there will always be a few local election contests – maybe a school bond election here, a city council election there. Maybe one or two high-profile contests involving multi-county races. The number of suits is limited by the difficulty of accessing the courts, and the difficulty (usually) of being able to show causation – that a particular screw-up in the conduct of the election led to the wrong outcome.

But all bets are off for 2014, baby. Because if there are voters out there about whom it can be fairly said that they would have voted but for the imposition of the voter I.D. requirements, then let the flood gates of election litigation open wide, and swallow incalculable sums and staggering amounts of time and energy, affecting the state courts, local and state government, and every voter. Imagine waking up on November 5th to newspaper headlines announcing that all of Texas lies under a thick pall of uncertainty, disjunctive lack of continuity in office, and overwhelming distrust of the accuracy of the election outcome.

It will be like Christmas, Thanksgiving, and the Fourth of July for any lawyer with an interest in election-law litigation.

State of Texas Comes Out Swinging, With Its Eyes Clenched Shut and Its Arms Windmilling Frantically

As you likely know, the U.S. Supreme Court had asked the State of Texas to file a response brief in answer to the Department of Justice’s appeal in Veasey v. Perry by no later than 4:00 p.m. today (Central Time). (To recap the action so far – the trial court issued extensive findings of fact and determined that the State’s photo I.D. law was unconstitutional, ordering the immediate suspension of the illegal statute. The State applied to the 5th Circuit for an emergency stay so that it could continue to disenfranchise minority voters  … violate the Fourteenth Amendment, … er … avoid voter confusion for the upcoming election. The 5th Circuit, agreed that it was much more important to avoid voter confusion than to actually protect voters, and ruled that the State was indeed entitled to continue breaking the law. The Department of Justice and other plaintiffs in the voter I.D. suit then appealed the 5th Circuit’s emergency stay of the trial court decision to the U.S. Supreme Court).

The State did indeed submit its argument by the deadline; here is a version omitting the appendix material.

In reviewing the brief, I’ve found one odd factual error that is likely to go missed by readers who are not “in the biz” of elections.

Contrary to the assertion on page 12 of the brief (page 15 in the .pdf file pagination), the State’s 254 counties don’t order “election kits” from the Secretary of State, – they get their election forms from private vendors, or they print them out themselves. The assertion is made in order to bolster the argument that the trial court’s order created “chaos” (and yes, the brief does actually venture into hyperbole on this point) because the poor State of Texas simply doesn’t know what to do.

Adopting the “kitchen sink” approach to appellate briefing, the State solicitor has filed a rambling 74-page brief, which I will endeavor to summarize.

And let me warn you right now. I am being mean, and flip, and sarcastic. But the brief filed by the State of Texas is embarrassing – it deserves every bit of the scorn I’m about to heap on it. And if you think that I’m misrepresenting the State’s argument, well, then, feel free to slog through the brief and do your own summary. Because while I’m being flip, and sarcastic, and mean, I’m also describing more or less exactly what the brief argues.

So heap your outrage upon me. I have read as much of the brief as I can stomach, and here’s what I was able to digest. And I’ll warn you – my summary may be long, but it pales in comparison to the numbing repetition of the actual brief:

1. We Totally Didn’t Expect the Trial Court to Issue A Ruling So Soon

Nobody told us that we were about to get dinged. Did I mention that the election is just around the corner? As the Supreme Court made clear with respect to both Wisconsin and North Carolina, by citing the principles expressed in Purcell v. Gonzalez, 541 U.S. 1, at 4-5 (2006), courts really shouldn’t take actions that affect the conduct of an election just around the corner, because it might confuse the voters. And that theory applies here, because we were sucker-punched. It’s like the trial court judge had it in for us.

2. It’s the Plaintiffs’ Fault that the Timing is So Bad

The plaintiffs could have given us a heads-up that they didn’t want us to apply the voter I.D. requirements for the November 2014 election, but they didn’t say anything! They waited until our guard was down, and then, boom! They totally pressed for some kind of injunction. How could we have known? We barely had time to cut and paste all the arguments out of our earlier briefs. (I mean we had no warning, aside from the months of legal maneuvering,  two-week trial and parade of expert witnesses all attesting to the fact that we were breaking the law. Which we totally weren’t).

3. Also, They Made Up All That Stuff About Disenfranchised Voters

Where are these 600,000 disenfranchised minorities? I’ve never seen them. The plaintiff just made them up. There aren’t any facts – this is all just preposterous. They took our badly organized, barely coherent voter registration records, and just read whatever into them. We can’t be racists if we can’t find the minorities that we supposedly discriminated against, now can we? I mean, normally it’s not the appropriate role for an appellate court to substitute new findings of fact, given that the weighing of evidence from dozens of respected academic researchers and legal scholars was the role of the trial court, but we would certainly appreciate it if you would just go ahead and agree that there aren’t actually any disenfranchised voters. Because obviously, if there were so many disenfranchised voters, why haven’t I ever seen them vote?

4. You Know Why the 5th Circuit Didn’t Need To Say That the Plaintiffs Were Unlikely To Prevail On the Merits? Because Duh, It’s Obvious That This Whole Lawsuit Is Stupid

Okay, so first of all, we’re not racists. Plus, we didn’t do anything wrong. Lots of states put up little roadblocks to voting – that’s just the nature of red tape and bureaucracy. All perfectly legal.

It’s not the height of the obstacles that matters, it’s whether it’s okay to have procedures. Well, it is okay, and all picture I.D. is, is just a procedure. Just an innocent procedure. Nothing to see here. You said it was okay for other states to have procedures. Ergo, quod erat demonstram, it is therefore proven that the State of Texas can have procedures for voting. Which is all this photo I.D. stuff is, just a procedure.

5. Statement of the Case – Here’s What Happened

Okay, so the People of Texas wanted us to impose photo I.D. requirements. Well, we aim to please, right? So we innocently enacted these photo I.D. requirements. Which, by the way, everybody loves. Did I mention that people are absolutely gaga over picture I.D.

And here’s the thing. I don’t see anybody complaining. We’ve had a couple off-year elections, and none of these minority voters showed up trying to get picture I.D.s. Why? Because everybody’s happy. That’s why. So just to make it clear, the People of Texas asked us to make a totally non-racist law, which we did. And it worked! Nobody complained. I mean, except for the plaintiffs and some other people. But the important thing is that none of those disenfranchised voters complained. Why? Because they were happy with the new law too. And, … um …

But then, incredibly, this Federal Judge issues an “opinion” (if you can call it that) that actually refers to our procedures (which, as you recall, I mentioned are innocent) as a “poll tax.” Well, that’s just insulting, choosing a loaded term like that. And probably racist. Oh right, just because we’re a State that fought to preserve human bondage and enforced laws for a century that were intended to explicitly deny the vote to blacks and Hispanics, suddenly we’re the bad guys. We can’t reform? Whatever happened to “innocent until vindicated by a more levelheaded appellate court.” Amirite?

So anyway, the trial court just hauls off and issues this order, and I mean we tried. We really tried to understand what we were supposed to do, but it’s just impossible. Did I mention this all just happened last week?

We would have been willing to sit down like adults and discuss all this through the avenue of ponderous, months-long briefing schedules, interim hearings, en banc reviews, revisions, motions for rehearings, hearings on motions for rehearings, and so on. You know, using the civilized mechanisms of proper appellate court procedure.

But I mean, that judge left us no choice! How can we possibly be expected to drop everything in order to drop everything at the drop of a hat? Laws just don’t stop enforcing themselves – someone actually has to set the manual handbrake on the grinding, rusty gears of government in order to stop enforcing a law. We can’t stop on a dime, you know – there’s institutional momentum. Plus, consider the poor voters.

Heck, you can see that we made a hash of things just in that last two days – canceling voter I.D. issuance, restarting voter I.D. issuance, canceling mobile voter I.D. stations. Our hopelessly inept bureaucracy just can’t take this kind of whipsaw action.

6. Okay, Obviously The 5th Circuit Wasn’t Demonstrably Wrong To Stay the Injunction.

A. The Trial Court Deliberately Caused Mass Panic And Confusion, With Mere Days to Go Before the Election! Outrage!

Well, for one thing, we never did anything wrong in the first place, so there’s that. But furthermore and more immediately, the 5th Circuit was just doing what it’s seen the Supreme Court do in exactly this sort of circumstance.

The trial court hauled off and issued an off-the-cuff, “gotcha” order that mucked up election procedures on the very eve (the eve I tell you!) of an election, creating sheer chaos, and the 5th Circuit had to step in and put things to right. So really, all the 5th Circuit was doing was just what you would have done in their place.

I mean, we’re going to have to un-issue a bunch of forms. Like, at least eight forms. We already threw out the old ones, and nobody knows how to work our office copier.

It’s all just so unfair and disruptive, and the court didn’t even ask us if it would be hard to go back to the old way of doing things. Which, if they had asked, we would have said, “Yes. I’m paralyzed by the very thought of having to conduct elections without asking for photo i.d. I mean, how would that even work. A voter would come in, and I would say, “May I seeyourmm…thingie.” See? Impossible.

B. We are So Totally Going To be Vindicated

Plus, as I mentioned previously, as soon as real appellate judges take one look at this lawsuit, they are so going to totally vindicate the State of Texas. We’re the victims, here. Just minding our own business, enacting harmless, neutral election procedures, when suddenly these, these … groups. These partisan groups, with their filthy motives. They come in, and they make up a bunch of stuff. and then they call us the racists. Us! We’re colorblind! We don’t even ask people what race they are when they vote, and you know why – because we don’t see “race.” We see hardworking, easily distracted citizens who just want to show their picture I.D.s and do what’s right for democracy. We don’t even bother tracking them!

Plus, and more damning, all the so-called “injured parties” they paraded before the court weren’t even injured. All 17 of those minority voters managed to find the hustle and energy to get their picture I.D.s eventually – they can all vote! We didn’t harm anybody! Like I said. Totally innocent of all wrongdoing. You can bet we’re going to be thinking about sanctions. If we’re guilty of any crime, we’re guilty of the crime of caring too much. And if that’s a crime, then I don’t want to not be a criminal.

C. The Trial Court Acted Like Crawford isn’t even a Thing

As you’ll recall, the brilliant Justice Scalia noted in his incisive and illuminating concurrence to Crawford v. Marion Cty. Election Board, 553 U.S. 181, 198, (2008), going down to the DPS office to get a drivers license is as easy and painless as falling off a log. No one who jumps through bureaucratic hurdles to get a picture I.D. has anything to complain about – heck, they’ve got it too easy. Make ‘em walk barefoot through broken glass and then they can come crying to me about how it’s “so hard” to vote.

And, as the 7th Circuit Court of Appeals has so recently observed in Frank v. Walker, voting is always a little bit of a hassle. So what? Get a bus schedule and figure it out. We’re not here to wipe the milk off your chin. You think this is a hardship? Wait’ll I show you a real hardship.

And one more thing – the trial court made a big deal about how there’s almost no in-person voting fraud. Well, there isn’t much bank robbery either, so I guess we should just dump all the cash out in the street and hope for the best. So what if nobody is actually stealing elections by impersonating voters? Now that we’ve given people the idea, we have to be vigilant. But I guess the trial court doesn’t care if people just go around committing crimes.

D. Nobody Ever Managed to Find A Real, Live Disenfranchised Minority

Groups like LULAC, MALC, NAACP, and the Department of Justice went all over the State trying to find people victimized by our voter I.D. law. And you know what, these groups (which, I’ll have you note, are associated with minorities) weren’t able to find any actual victims. All they found were a bunch of eggheads looking for an easy buck, testifying about “charts” and “demographics” and “math.” As if any of that is real.

Has any officer of the State personally gone into a polling place and pistol-whipped a minority voter? Not that I know of, and even if they have, I bet they haven’t been doing it systematically. Plus, we wouldn’t allow that sort of thing. So where’s the victim?

Just ask yourself that – if you can’t find the victim, then it follows (Q.E.D.) that nobody did anything wrong. Because that’s exactly right.

The State of Texas has bent over backwards trying to help poor people. We told them that if they’re over age 65, just vote by mail. We told them how to get picture I.D.s. We put helpful information on our website. We set up some folding tables and tried to help people get I.D.s, and nobody took us up on it. It was a waste of time.

Here’s the thing, Mostly, people can get drivers’ licenses. I mean, think about it. Who do you know who doesn’t have a driver’s license, besides some old people, who if they would just spend a little time organizing their lives could plan to go down to the post office and mail in their ballot like, whenever.

We don’t judge those who can’t get I.D.s – we don’t even know if those people are minorities or not. Maybe they’re just not at that place in their life where they want to get an I.D.

Or maybe they are the kind of people who shouldn’t get an I.D. I’m not saying that I know that for sure. I’m just throwing it out there. And we’re not going to force anyone to get a picture I.D. That’s presumptuous, and probably racist. And patronizing. Let people not get I.D.s if they don’t want to. It’s a free country.

Anyway, voter I.D. just isn’t that big a deal. Even the expert for the DOJ said back in 2009 that “voter I.D. doesn’t appear to present a significant barrier to voting.” That’s from Stephen Andsolabehere’s article in Vol. 42 of PS: Poli. Sci. and Pol., at page 129.

Yeah, I know, “Professor” Andsolabehere then qualified that statement by basically clarifying that he was referring to voter I.D. as an idea in the abstract, and not to the fiendishly punitive form of picture I.D. laws adopted by the State of Texas. So what?

E. Not to Beat A Dead Horse, But I’ve got Another 30 Pages To Fill

Look, let’s just get down to brass tacks. We all know how this is supposed to play out. I’m going to express about 5,000 more words of outrage. I’m confident that you guys are going to do the right thing. Because, c’mon. Why would minorities get so exercised about voting rights anyway? – they’re on the losing side.

See you on the back nine.

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