A Perfidious Assault on Voting Rights

My mom called on behalf of a friend, who is caretaking her 97-year-old mother. Thanks to bureaucratic intransigence and general awfulness, the 97-year-old (who has moved down from Michigan and would like to vote in the upcoming November elections) cannot seem to convince the Texas Department of Public Safety that she actually qualifies for a voter I.D. card.

The problem is that the State of Michigan can only issue the woman a certified copy of a certification of birth, but the DPS license office insists that unless the document is titled “Birth Certificate,” it is unacceptable proof of identity. Such a restrictive interpretation of the statute defining the type of proof needed for a voter i.d. is untenable, and one hopes that wiser heads prevail – the woman has a state-issued document proving her birth in the U.S., notwithstanding that it is a certification of birth rather than a birth certificate.

But in the course of researching the issue, I encountered a truly insidious I.D. requirement that has been in state law for five years, but that for that last few months or so has served as a proxy for restricting the voting rights of a whole class of potential voters, namely the homeless and transient poor.

Texas has not traditionally imposed tests of durational presence as a prerequisite to voting – arguably, a person becomes a citizen of Texas and acquires the qualification to vote merely by domicile within the state. In other words, a person can move to Texas, identify a place as “home” and thereafter participate in the civic life of the community and the state so chosen. Tex. Elec. Code Section 11.001.

But in 2009 (coinciding with a then-abortive push by the Legislature to enforce stricter rules of domicile for voting purposes) the Texas Legislature passed a law specific to qualifying for drivers’ licenses and state-issued i.d. cards. (Section 521.1426, Texas Transportation Code) To get a driver’s license or state i.d., a person must provide two forms of documentary proof of continuous domicile within the state for at least 30 days prior to applying for the i.d. Alternatively, a person may submit affidavit testimony by third-party correspondents (who must themselves provide documentary proof of their own Texas domicile) affirming the applicant’s residence status.

DPS describes the process and provides a link to the affidavit here.

Notice that the documentation of domicile strongly favors those who own property or have income – acceptable documents include utility statements, tax receipts, mortgage documents, etc. It isn’t impossible to get the i.d. if one is homeless (the administrator of a homeless shelter or halfway house can act as the corroborating witness on the affidavit, for example), but it requires fairly sophisticated engagement with the mechanisms of formal institutionalization. If you happen to be living under a bridge, you have to hope that a social worker will be willing to vouch for you and claim that you regularly receive mail at a neighborhood shelter.

And true, a voter registration certificate is itself one of the acceptable documents to prove domicile. But a voter registration certificate is not sufficient in and of itself to establish residence.

So … let’s recap. By law, (see Section 11.001, Texas Election Code) you are citizen of Texas as soon as you permanently reside in Texas. As soon as you permanently reside in Texas, you qualify to vote and can apply for a voter registration certificate. But you can’t use a voter registration certificate by itself to vote. To vote, you need a picture I.D. issued by the Department of Public Safety. But to get a picture I.D., you need to prove that you’ve been domiciled in Texas for at least 30 days. (You’ll also need to prove your citizenship and identity, which, as I have described before, is another sort of fresh hell, but enough about that).

But to prove that you’ve been domiciled in Texas for at least 30 days, you’ll either have to present the documentary proof of your financial respectability (in the form of bank statements, utility bills, and paychecks), or you’ll have to fall back on the mercy of the modern poor house or work farm, getting someone else in a position of paternal responsibility to vouch for you as not being entirely transient and rootless.

The State of Texas (a state whose independence was precipitated by the actions of transient adventurers and freebooters) certainly seems to have put away the “welcome” mat once and for all.

Now, here’s a bit of insidious legal history.

Section 521.1426 of the Transportation Code got added to state law in 2009, but it didn’t really come up on the election law radar, because picture I.D. voting laws didn’t pass in 2009. So there were no implications under Section 5 of the Voting Rights Act for the new “proof you’ve lived here 30 days” requirements for state i.d.s, and (other than maybe a lingering bad feeling about the direction that the law was taking) no formal sense that the then-new law relating to drivers’ licenses needed to be vetted by the U.S. Department of Justice.

Then the war on voting rights began in earnest, and we were subjected to the perfidy and general foulness that is the hallmark of our new undemocratic age. And suddenly in late June of 2013 (while the ink on the decision in Shelby County v. Holder was still drying) the various torturous paths and obstacles to getting a state picture i.d. also magically became new  and wickedly torturous paths and obstacles to voting.

Citizenship in Texas now rings a little hollow, since permanent residence here is no longer enough to qualify you to vote in Texas elections, Section 11.001 of the Election Code be damned.