#Trump’s Twitter Problem: Life In “Post-Truth” America

Our presumptive President-Elect chose to take time out from his Sunday (November 27) to inform us via Twitter (with no evidence) that millions of people voted illegally, and that but for those illegal votes, he would have won the popular vote nationally. (As of this writing Hillary Clinton is more than 2,200,000 ballots ahead of Trump in the popular vote).

To repeat: Mr. Trump made this statement based on absolutely no evidence, and in the teeth of overwhelming rebutting evidence that what he has said is simply and unequivocally false.

Not to mention that he has in the space of a couple of inflammatory Tweets managed to insult the professionalism and intelligence of every county and state voter registrar, election worker, poll watcher, precinct judge, county elections board member, and state election officer in the country, not to mention every—or at least 3 million—of us voters.

If this is what we have to look forward to for the next four years, the ratings for Trump’s reality TV version of the federal government should be through the roof, right? So at least we have that going for us. It’s obscene—if understandable; this is the PEOTUS, after all— that this story got any traction at all.

But first, given that in my last post I opined that the Clinton campaign would be unlikely to seek recounts in Wisconsin, Pennsylvania, and Michigan, and given that events have proven my opinion to be wrong, let’s address the decision by the Clinton campaign to piggyback on the Jill Stein campaign’s recount requests.

General counsel to Hillary for America Marc Elias (via a statement posted on Medium, and as quoted extensively in Rick Hasen’s blog) makes it clear that Hillary Clinton is wholly realistic about the likelihood that the recounts will not change the outcome of the election, but that such recounts should prove useful as audits of the accuracy and integrity of the election process and to settle fears regarding the risks of result-changing “hacks.”

Briefly, the Clinton campaign would not have pursued recounts but for the fact that

(1) The Stein campaign raised the money and filed the paperwork to get the ball rolling, and

(2) Voters were collectively so disturbed and agitated by evidence of foreign meddling and interference in the election that it made sense for the Clinton campaign to join in the recount effort in order to bring closure to the election.

So why did Stein’s campaign ask for recounts in the first place?

I don’t know—I guess it’s possible that the Stein campaign coordinated with the Clinton campaign, but that seems unlikely, given that neither campaign will benefit in any direct political way from behind-the-scenes cooperation.

I suspect that the Stein recount was motivated by no more than what it seems to be on its face—a grassroots-driven gift propelled by very real and understandable anxiety on the part of committed Stein supporters who could not have been happy with the idea of a Trump victory, especially if it was the result of some sort of direct interference or manipulation of the vote totals in key precincts.

Finally, Paul Musgrave, an assistant professor of political science at the University of Massachusetts Amherst, has written a nice summary explanation as to why Russia benefits—at least in the short term—from all this anxiety.

 

What Just Happened?: Starting With Why Hillary Clinton Isn’t Going To Ask for a Recount or File An Election Contest

DOES THE #AUDITTHEVOTE MOVEMENT HAVE LEGS?

Three nights ago, my wife told me to check my Facebook page because she had “tagged me” (whatever that means*) with a story from New York magazine about a group of lawyers and computer scientists who have urged the Clinton campaign to file recount requests in Wisconsin, Michigan and Pennsylvania. (She also said something about a petition that as of this writing has close to 200,000 signatures.)

So I started to write about that story, but then one of the quoted security experts (Professor Alex Halderman) published a follow-up on Medium to provide context and to correct nuances of the story that he felt the magazine’s coverage had omitted.

(At the University of California, Berkeley, a separate unrelated group of security experts are also calling for a “risk-limiting” audit of the election for similar reasons and on similar grounds.)

Professor Halderman’s blog post describes the facts that have driven this group of respectable and well-regarded experts to urge a review of the election — these facts include

(1) Reports that Russian agents wanted to or tried to interfere with and subvert the mechanisms of democracy in collusion with the Trump campaign in key battleground states;

(2) Troubling statistical anomalies in voter turnout compared across jurisdictions within those battleground states;

(3) The experience of Ukrainian election officials, who in 2014 were caught off-guard by a multi-pronged attack on vote-reporting and online tabulation of their national election in 2014. (Some of the details of that 2014 attack were covered in this Wall Street Journal story.)

In August of this year, Ben Shapiro wrote a nice summary article for Politico about the security threats that endanger electronic voting generally, stretching back to the dramatic headline-grabbing criticisms directed at electronic voting system manufacturers made by Andrew Appel and Alex Halderman in 2003. The story also briefly touches on the capacities of foreign hackers to disrupt elections with non-physical attacks.

On Facebook and elsewhere, the New York magazine story is being circulated along with admonitions to readers to call or write the Department of Justice and urge the DOJ to audit the election. As the New York story points out, the deadlines for candidate recount requests (which are functionally distinct from and more modest than full-blown election contests filed in court, but which help frame the factual context and discovery process in advance of possible litigation) are almost over—today, November 25, is the deadline for a recount in Wisconsin; Monday, November 28, is the deadline in Pennsylvania; and Wednesday, November 30 is the deadline for a recount in Michigan.

On the topic of recounts, Green Party candidate Jill Stein might or might not use some of the money she’s raised to request recounts, although her request would not particularly help any other candidate, and seems like a quixotic cry for attention.

In his blog posts addressing the New York magazine story, Rick Hasen has said pretty much everything that needs to be said about this matter.

As to my analysis, recounts are not forensic examinations of the veracity of an election—they are merely re-tallies of the election returns to correct arithmetic errors. Realistically, if there is credible evidence of some actual and material election fraud, that evidence will only be adduced through a criminal investigation or an election contest, or both; not a recount.

Is Hillary Clinton going to file an election contest?

Eh … I would put the odds of such litigation as slim to none.

The problem for the Clinton campaign is twofold.

First, there is a matter of a lack of concrete evidence of material irregularity in the conduct of the election — beyond arguing that the statistical patterns of turnout and voting results looks fishy, one would need to articulate with some credibility how the election outcome was hacked. Without knowing more, I just don’t see any evidence of tabulation errors that might be collected through an election audit as being sufficient to support a contest of the results.

Second, the losing candidate is under pressure from her own party to accept the results in the interest of promoting a peaceful transition to the new administration.

ELECTION HACKING IN CONTEXT

Whether rigging an election in 1916 or in 2016, and independent of the technology used to record votes, the person or group doing the rigging always faces the same general tactical challenge: You can’t rig an election except by getting your hands on the ballots.

Voting machines are not networked, and you cannot access them remotely — as Professor Appel demonstrated when he broke into his guinea pig voting systems, an election-stealer actually has to get his or her hands dirty.

That being said, if you have actual possession of the equipment to be used in an election, you can presumably maliciously destroy the election to your heart’s content, limited only by your technical skill and the scope of your evil intentions.

But that’s always been true — technology alters the details of how the machinery might be subverted, but it doesn’t alter the scope of the broad security problem at hand.

Stunts like reprogramming voting machines to play Pac-Man, or theatrical subversions of the District of Columbia’s abandoned notions of Internet voting don’t frighten me to any greater degree than any other hypothetical or actual examples of election subversion, because even the most extravagant forms of election fraud are dependent on physical access to the machinery of voting.

Or rather, I suppose all examples of election rigging do frighten me, but always to the same extent, and independent of the specific details of any particular method of election theft that might be described, whether it involves paper ballots or electronically recorded votes.

In other words, I find election rigging involving ballot box-stuffing and paper forgery to be just as worrying as election rigging involving sleeper software, self-replicating trojan horse viruses, and reverse-engineered access keycards.

So rigging an election that uses direct-recording electronic voting systems is described in technical terms that are cooler and more sinister-sounding, but that are simply the electronic analogue of getting a guy to cut the bottom out of an old-fashioned galvanized metal ballot box.

So if someone came to me and said, “I think the November 2016 presidential election was rigged in key counties within at least three of the battleground states,” my first questions would include:

  • What kind of security measures preserved the voting equipment against unauthorized access in each of those counties?
  • What evidence have you found of a breach of those security measures?

The forensic challenge might well be complex, and the answer to my question might be a mix of direct and circumstantial evidence of ballot insecurity.

“Well, in X County, county maintenance workers reported that a padlock on the county’s equipment shed was cut sometime between October 30th and November 1st, but an inventory showed no theft occurred.”

Or

“In Y County at Precinct 301, election workers had decided to get a head start on things, so they dropped off their equipment at the Smith Elementary School on the evening of the 7th, and had the janitor lock the equipment in the basement boiler room, but they don’t know who else has a key to the boiler room.”

Or

“In Z County after the polls closed, the election workers couldn’t find any of the wire-hasp seals that were supposed to be in the election kit, so they just went ahead and closed up the equipment and loaded it on the county pick-up truck to take it back to the county courthouse. Since they hadn’t bothered to write anything down on their seal register or their ‘transfer of physical custody’ form, the county clerk yelled at them and made them feel bad, but what’s done is done. The clerk went out to Office Max the next day and bought a few serial-number embossed wire hasps, and put those on the equipment.”

Such bits of evidence are the kernels of a potential police investigation — each irregularity (whether trivial or serious) prompts follow-up questions.

  • Does the county have a surveillance system for its voting equipment shed?
  • What were the reported tallies?
  • Who voted in each precinct?
  • Should the district attorney file a motion to impound the equipment to preserve evidence?
  • How many of the voters, when called and interrogated, are willing to say who they voted for?
  • Does a judge need to issue subpoenas to solicit grand jury testimony from the voters listed on the poll list?

So is it theoretically possible that elements in the Russian government could try to steal an American election by hacking voting machines? Well, sure. I mean, if and to the extent that neither the Russian government nor any of its intelligence allies minds the retaliatory risk to their own voting apparatus. Tit for tat, and all that.

To me, the fraud inherent in this election is more likely to be explained not as the product of a specific foreignfunded computer security breach of individual electronic voting units, but rather as a kind of collective self-inflicted wound on the body politic. I’m not oblivious to the threat or the potential that I have underestimated the ease of the technical limitations to be overcome, and if it does turn out that the physical mechanisms of our election’s ballot collection was subverted by a network of Russian hackers, I will be just as surprised and outraged as anyone, but I’m not going to tie myself in knots of paranoid doubt and fear in the absence of evidence.

There are to my mind more pressing systemic problems in our democracy, such as intentional voter suppression, which Ari Berman has written about extensively.

And the disturbing spread and political uses of so-calledfake news” and outright propaganda in the months and weeks leading up to the election, combined with what Americans have apparently just realized is a dire need for education about how — in addition to “Snopes it” — to discern fake from fact.

Vote suppression and racial gerrymandering also constitutes a kind of political fraud, to be sure, but the preconditions for this kind of fraud are a heady and profound failure of civic education in the face of the resurgent tides of open racial discrimination that now threaten to sweep away the gains of the civil rights movement. Maybe one might throw in a little soupçon of politically naive and dangerously nihilistic political experimentation, and voila!

In any case, if this election was overtly stolen through manipulating the tabulation of ballots, the state (through criminal investigation and prosecution) can punish the theft. But practically speaking, the only person with legal standing to file a civil suit (i.e. an election contest) to repair the civic damage caused by that theft is the losing candidate — not the voters, whether through an “audit” or otherwise.

So, unhappy voters, petition the DOJ as you see fit, but in petitioning for an “audit” you are not formally initiating any sort of recognized investigative or restorative process to change the outcome of this election.

You can also demand some sort of revolt by the Electoral College as well, if you’d like, but you should know that with a few negligible exceptions, the electors from each state are chosen by the candidate who wins that state’s popular vote. In other words, the electors are friends and supporters of the candidate and are chosen specifically for their loyalty to the candidate who has identified them for that role.

______________________________

*I know that when I say, “I don’t understand Facebook,” it looks like I’m crotchety and dim, shaking my liver-spotted fist at the kids tearing across my yard on their fancy social-network mountain bikes. And well …, I probably am crotchety and dim with respect to popular social networking sites and technologies (although as I understand it, Facebook itself is now kind of the fuddy old “grandpa” portal in comparison to Instagram and Twitter).

But honestly, can even those of you who regularly and confidently use Facebook (I’m looking at my wife right now) say that in your heart you truly love Facebook’s often extravagantly non-intuitive interface and design? Really? Even when it breaks expectations and functions in a manner inconsistent with other routine communication structures? Well, okay then. I guess it’s just me.

Kudos to KTRE (Nacogdoches) For Explaining Why The November 2016 Election Won’t Be Rigged

I. PRAISE WHERE PRAISE IS DUE

Great in-depth political reportage is not easy — and it is a hard thing for any journalist to write compellingly about the quotidian mechanisms of democracy, as opposed to the comparatively simpler narrative about candidates winning and losing.

And when election experts assert that (Donald Trump’s tweets notwithstanding), there is no way for the presidential election to be rigged with fake votes, voter impersonation, people voting as dead voters, illegal voters, etc., the technical reasons for those assertions are sometimes glossed (or glazed, as in glazed eyes) over.

Discussions of ballot security protocols, chain-of-custody documents, seal registers, and other voting safeguards are usually not what one would think of as making for compelling television journalism topics, which is a shame.

To the extent that the media fails to educate voters about how and why elections are secure, voter ignorance about election security can make voters vulnerable to fear-mongering.

Inasmuch as television news reporting is often negatively (and sometimes unfairly!) perceived as “shallow” and insubstantial, I think it’s important to call television news stations out for praise when they do a great job.

On October 20, 2016 (well before the beginning of the early voting period), KTRE TV (the ABC affiliate in Nacogdoches, Texas) ran a story by Thomas Hoce that effectively rebutted the “rigged election” falsehood with specific technical information supplied by interviews with Connie Brown, the Angelina County Elections Administrator, and Todd Stallings of the Nacogdoches County Elections office. My only editorial suggestion would be that titling the story as “East Texas election officials talk possibility of election rigging” was a little misleading and unfair.

I would have gone with something more like, “East Texas election officials debunk possibility of election rigging.”

Among other things, Mr. Stallings mentioned that in his county [and, I, the Texas Election Law Blogger, will add, and as is standard practice across Texas and the nation], 

  • the voting systems are not networked or connected to the internet, that
  • the ballot tabulators are audited for accuracy before and after the ballot tabulations are run,
  • that the State demands a “test” partial manual recount of ballots to test against the possibility of error,
  • that the voting systems and tabulating equipment are secured with tamper-resistant seals, and
  • that audit logs are maintained for each instance in which the election records are accessed.

On the one hand, nothing that Mr. Stallings said was particularly stunning or noteworthy —elections always produce a prodigious amount of redundant public security records and proof of veracity as part of the statutorily required audit trail.

But (outside of election workers and a few interested officials and academics) journalists rarely include a description of this audit trail as part of a routine dinnertime local television news story about the election. So kudos to KTRE and Thomas Hoce for having aired some of the procedural reasons why the election won’t be—in fact, can’t be—”rigged.”

II. PLAYING ON VOTER FEARS

And now for some criticism. Whereas one TV station in a comparatively small East Texas market did an admirable brief story quelling election fears, TV stations in the much larger Austin market (FOX7 News Austin , KEYE, and KVUE) ran stories on October 19th that might have exacerbated voter anxieties unnecessarily.

Two years ago, a woman named Laura Pressley lost a hard-fought bid to be elected to a seat on the Austin city council; she subsequently filed an election contest asserting that the way in which electronic votes were preserved and tabulated after the election materially affected the outcome of the election.

Her argument was that because early votes cast on electronic machines were not reproduced in hard copy prior to Election Day, they could not be manually recounted and compared against a pre-Election Day partial tally. (The candidate made this assertion because she had done relatively well in early voting, but lost based on Election Day turnout, and believed that the divergent trends suggested irregularity.)

Given that Pressley’s contesting of the 2014 election results had been dismissed by the trial court for lack of evidence, one might wonder what change of circumstance made her story newsworthy on October 19 of this year, when her allegations were run under the headline, “Texas election integrity questioned.”

The implication from the story is that the State of Texas is doing something suspicious by granting waivers to some counties that release those counties from the obligation to do mandatory partial manual counts of optical scan ballots.

It’s an odd irrelevancy, given that

  • (1) Laura Pressley’s 2014 election didn’t have any optical-scan ballots, and so the State waiver she describes is unconnected to her election contest; and
  • (2) the State’s waiver is a specific response to the way in which certain brands of optical scanners of marked paper ballots (mechanically similar to the scanners used to tabulate multiple-choice tests) accumulate and preserve precinct-by-precinct early voting and Election Day vote totals.

A better headline for this story could have been, “Two years later, losing candidate still thinks she shouldn’t have lost.”

Of the three versions of Ms. Pressley’s “Election Integrity Story” that ran in the Austin market, the KVUE version contained the most explanatory context, including a rebuttal and criticism of alarmist talk about election fraud, and a reminder that widespread fears of election “rigging” are unfounded. The FOX7 version of the story was the shortest and least critical of its source, and omitted key information that would have placed Ms. Pressley’s complaints in context.

III. ARE ELECTION PROCEDURES TOO BORING TO MAKE GOOD NEWS?

Eh … I’m biased against saying that election procedures are “boring.” TV news producers face tremendous time limitations when trying to explain a complicated story, and election law is complicated; there’s no getting around that.

But elections are exciting, and election security should (or could) be described in a compelling way. And I think there’s a public benefit to be gained from airing news stories that give election administration a wider audience.

Ari Berman & Others on Texas Voter Registration and Jim Crow: tl;dr: Racism, Recalcitrance, Restrictions

The Nation’s Ari Berman has posted a number of mustread stories over the last few weeks regarding the 2016 election cycle.

Although Mr. Berman’s recent election stories have been been national in scope (he’s examining violations of voting rights in North Carolina, Wisconsin, and Ohio, among other places) his cover story for this week’s issue specifically focuses on the State of Texas’s discriminatory voter I.D. law and our restrictive voter registration laws.

Berman’s coverage in The Nation‘s cover story, “Texas’s Voter-Registration Laws Are Straight Out of the Jim Crow Playbook” spotlights the restrictions on volunteer deputy voter registrars (or “VDRs”).

The story also looks at threats by some Texas officials to investigate voters who lack the narrow range of acceptable forms of photo I.D. required under the State’s 2011 voter I.D. law that was struck down in July of this year as racially discriminatory.

From the cover story in the October 31, 2016, issue of The Nation:

“VDRs [Volunteer Deputy Registrars] were established in 1985, but the restrictions on voter registration were significantly toughened by the Texas legislature in 2011 to require county trainings, ban non-Texans, and prohibit VDRs from being compensated based on the number of people they register. As a result, ‘Texas is the most restrictive state in the union when it comes to voter registration,’ according to the Texas Civil Rights Project.”

I’ve written about these matters here, here, here, here, and, most recently, here, so its good to see these problems getting wider national attention.

***

A bit more on selected links included in this post:

Ari Berman’s Twitter feed is a good source of links not only to Mr. Berman’s own journalism, but also to other materials relating to civil rights and voting rights issues generally: https://twitter.com/AriBerman

The Nation—launched July 1865, so it’s covered a few elections in its time—has had excellent reporting and opinion pieces on the national elections: https://www.thenation.com.

My source for the text of provisions from Chapters 63 and 13 of the Texas Election Code (relating to voter I.D. and volunteer deputy voter registrar laws respectively) is the Texas Legislature Online: http://www.capitol.state.tx.us funded by us, the people of the great state of Texas.

Texas Voter ID Troubles Continue; District Court Orders Judicial Oversight of Texas Voter Education – And the State Doubles Down By Disparaging the Motives Of Voters Who Claim Not To Have Photo I.D.

I. APPARENTLY, THE STATE CAN SCRUTINIZE VOTERS WHO SUBMIT DECLARATIONS OF REASONABLE IMPEDIMENT IN LIEU OF PHOTO ID

On September 22, 2016, the Texas House of Representatives Elections Committee conducted a routine interim hearing on various technical matters relating to election administration. For three and a half hours the committee members and witnesses discussed proposed legislative tweaks to the petition signature process, to municipal elections, to obligation bonds and taxes, and so on. You can watch the whole hearing if that’s your thing, but for my money the really interesting stuff doesn’t come up until the very end of the hearing.

As the hearing wrapped up, State Representative Celia Israel asked an official from the Texas Secretary of State’s office about a court order that had been issued two days prior to the committee hearing. In particular, Representative Israel was curious to find out what the State was doing to educate voters about I.D. requirements for the November 8, 2016, election.

In response to the questionsDirector of Elections Keith Ingram explained that the State had incorporated the text of the court’s most recent directive into the website and upcoming print and media advertising; he specified that voters who “do not possess [the statutorily mandated forms of photo I.D.] and cannot reasonably obtain it,” could cast a regular ballot by completing a “Declaration of Reasonable Impediment,” if they also supplied alternate forms of documentary evidence of their identity.

Representative Mike Schofield then took the discussion in a new direction (starting at the 3 hour, 36 minute mark), after asking if the State could track information about whether the Declarations were submitted by people who actually have I.D.:

What I don’t want to see is a gross number, and everybody acts as if those people don’t have I.D…. If you pretend you don’t have it, and use one of these declarations, that’s illegal, isn’t it?

In response to the question, Mr. Ingram clarified that voters entitled to use the Declaration would be those who had either never been issued one of the six forms of photo I.D. listed under the law, or those whose previously issued I.D.s had been lost or destroyed, and who had a reasonable impediment to replacing the missing I.D.

Representative Israel raised a hypothetical situation (described starting at 3 hours 45 minutes) in which a voter’s “reasonable impediment” is that the voter is voting at a polling place on one end of town, but left her photo I.D. at home, at the other end of town.

In that circumstance, Mr. Ingram explained that assuming that the voter filled out the “Declaration” and wrote down that the reasonable impediment was “left my I.D. at home,” the election worker would have to take the declaration at face value and allow the voter to cast a ballot.

Representative Schofield seemed incredulous, asking, “Is that … is that correct? … You’re going to let them vote with a ‘Reasonable Impediment?'”

The Director of Elections responded:

The poll worker cannot challenge the ‘Reasonable Impediment’ asserted by the voter. …. But if that’s the reasonable impediment, I think the voter is at risk, because they’re not following the law. But that’s not for the poll worker to decide. [Emphasis added by me.]

Committee vice-chair Craig Goldman then asked, “But, how does that get challenged, and then how is their vote null and void?”

The Director of Elections explained:

The vote will never be null and void. It’ll get challenged in an election contest, if it’s a close election. And obviously these things [the Declarations of Reasonable Impediment] will be available for folks to give to their district attorneys to follow up on. [Emphasis added by me.]

Representative Schofield pressed the issue as the hearing entered its final minutes (at the 3 hour 46 minute mark):

I realize we’re going to have a lot of illegal votes and a lot of fraudulent votes. That’s why we have voter I.D. My concern is that there are going to be a lot of people trying to thwart the [voter I.D.] law who have valid drivers’ licenses; who have passports; and are going to assert these declarations. Their votes may count in this election, but I want to make sure that when we go back to court, we’re not saying ‘oh, there’s this huge number of people that filed these declarations.’ I want to drill down and find out which one of ’em [declarations] were bogus. [Emphasis added by me.]

The Director of Elections responded, “And I’ll think you’ll be able to tell easily.” He then went on describe how one of the Declarations of Reasonable Impediment that had already been used in an off-season tax ratification election indicated that one voter had written that the “reasonable impediment” was “fascist law.”

The committee chair said: “Fascist law? They wrote that?”

***

What’s troubling about the exchange (aside from Representative Schofield’s counterfactual and inflammatory assertion that there’s going to be a lot of “fraudulent votes” in this election), and what should be especially troubling to the plaintiffs in the voter I.D. lawsuit, is the implication—encouraged both by Representative Schofield’s assertion that “we’re going to have a lot of illegal votes,” and by the response from the Director of Elections that voters who use the Declaration can be tracked, and possibly referred to local district attorneys for prosecution for illegal voting—that voting without an approved photo I.D. is automatically suspect.

So … why is this suggestion of potential criminal prosecution troubling?

Because it is not a stretch to imagine that statements like this could have a chilling effect — dissuading eligible, qualified voters without approved photo I.D. from voting. In other words, threatening to investigate voters who file a Reasonable Impediment Declaration could end up hurting the very group of voters that the August 10, 2016, court order was intended to help.

Think I’m exaggerating about “threatening to investigate”?

On September 9, 2016, Rick Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine, posted a story on his Election Law Blog about the motion for enforcement of the August 10 court order filed by the private (non-Department of Justice) plaintiffs in Veasey v. Perry. These plaintiffs were reacting to this August 26, 2016, news story (as quoted in the private plaintiff’s motion):

[Harris County Clerk Stan] Stanart says he will investigate everyone who signs that form to assure they are not lying. Whether anything happens, that’s up to the [Harris County District Attorney’s Office]. But after the votes are counted and the election ends, Stanart said his office will be checking to see whether a person who signed the sworn statement has a Texas Department of Public Safety-issued ID through the DPS database.” Meagan Flynn, Harris County Clerk Will Vet Voters Who Claim to Lack Photo ID, HOUSTON PRESS, Aug. 26, 2016.

So to recap: As of late August in a presidential election year, the chief election official in Harris County, the most heavily populated county in Texas, was quoted as intending to investigate voters who claim they lack photo I.D.s.

That threat of punitive or retributive investigation prompted the federal district court in Corpus Christi to issue on September 20 a legal order, in which the court told the State to clarify and make explicit that voters who reasonably lacked photo I.D. were legally entitled to an alternate method of qualifying for a regular ballot.

But then in the hearing on September 22, just two days after the court order, the State was still discussing the option of criminal investigations and prosecutions of voters without photo I.D.s, in order to satisfy a Republican state legislator’s concerns about the effective enforcement of the State’s photo I.D. law.

And the statements of the Director of Elections reassuring Representative Schofield that voters who vote without photo I.D. can be tracked and investigated echoed the statements made in August by Harris County Clerk Stan Stanart.

II. BACKGROUND — WHAT’S ALL THIS ABOUT “REASONABLE IMPEDIMENT”?

After the conservative Fifth Circuit appellate bench ruled that the State of Texas had enacted a discriminatory voter I.D. law, the federal district court in Corpus Christi that has been handling the photo I.D. suit (Veasey v. Perry) issued a judicial order on August 10, 2016, to remedy the immediate effects of the discriminatory law.

The plaintiffs in the ongoing lawsuit relating to voter I.D. then filed a motion informing the district court judge that the state’s officials were misrepresenting the court’s directive. (see, e.g., the Texas Tribune‘s September 7, 2016, story).

The August 10 judicial order had provided that voters who could not “reasonably” obtain an acceptable form of photo I.D. could substitute the use of some other forms of identification if they completed a “declaration of reasonable impediment.” The Elections Division at the Texas Secretary of State’s Office did not include the word “reasonably” in training materials, the agency’s website, and voter information posters, leaving the impression that the only voters who could access alternative forms of identification were those who were absolutely unable to get the photo I.D.

Omitting the word “reasonably,” which had been specifically included in the district court’s August 10 judicial directive, may seem like a minor editorial alteration. But in making that omission, the State gave the plaintiffs the impression that State officials were dragging their feet in response to the August 10 court order.

The Department of Justice summarized the problem in its September 6, 2016, motion to enforce the August 10, 2016, remedial order as follows:

On August 10, 2016, this Court entered an Order directing the State of Texas, Secretary
of State Carlos Cascos, and other officials to implement a set of directives for the November 8, 2016 election. Veasey v. Perry, No. 2:13-cv-193, Order Regarding Agreed Interim Plan for Elections (“Remedial Order”) (S.D. Tex. Aug. 10, 2016) (ECF No. 895). The Court ordered:
 
Commencing with any elections held after the entry of this Order and until further order of the Court, Defendants shall continue to educate voters in subsequent elections concerning both voter identification requirements and the opportunity for voters who do not possess SB 14 ID and cannot reasonably obtain it to cast a regular ballot. (Emphasis added.)
 
In other words, the State of Texas was supposed to tell voters about the photo I.D. requirements and then also tell voters that if they couldn’t get photo I.D.s, the voters could execute affidavits in lieu of obtaining those photo I.D.s (because, remember — the Fifth Circuit didn’t cleanly strike down the photo I.D. law, but found that the law as implemented was having a discriminatory effect).
In its motion, the Department of Justice then described what the State was actually doing:
 
Rather than educating voters and poll officials about opportunities to “cast a regular ballot” for those who “do not possess SB 14 ID and cannot reasonably obtain it,” the State has recast that language to limit the opportunity to cast a regular ballot solely to those voters who present SB 14 ID or who “have not obtained” and “cannot obtain” SB 14 ID. That standard is incorrect and far harsher than the Court-ordered standard it would displace. By recasting the Court’s language, Texas has narrowed dramatically the scope of voters protected by the Court’s Order. Moreover, the standard the State’s training and educational materials currently describe has already been rejected by this Court and the Fifth Circuit. At this critical stage, such materials should maximize accuracy and minimize confusion. Texas’s materials do neither.
 

The District Court responded as follows (from the September 20, 2016, court order):

ORDERED that the State of Texas shall provide to counsel for all Plaintiffs scripts
and copy for documents and advertisements that have not yet been published for review and objection prior to publication; [Emphasis added by me].
 
Which, okay.
 
That’s a little embarrassing for the State, what with the judge having to say, “Texas, you now have to submit anything you say about voter I.D. requirements to your opponents in this lawsuit so that they can review and approve your message before it gets broadcast.”
 
The court order continues:
 
ORDERED that the State of Texas shall edit digital materials on its website
page(s) that address voting rights and procedures, including titles or headlines and FAQs to reflect that voters who “do not possess an acceptable form of photo identification and cannot obtain one due to a reasonable impediment” may vote after signing the Reasonable Impediment Declaration;
 
ORDERED that all materials related to the education of voters, poll workers, and
election officials that have not yet been published shall reflect the language of the Court’s prior Order (D.E. 895).
 
III. SO, UH, DOES TEXAS NEED TO REINSTATE INTENSIVE FEDERAL OVERSIGHT AND REVIEW OF ITS ELECTION PROCEDURES?
 
One thing that’s interesting about the September 22, 2016, Texas legislature Elections Committee meeting is that the questions being asked by Representatives Schofield and Goldman serve as a kind of window into the State’s regulatory zeitgeist regarding voting.
At the risk of being reductive, from their statements quoted above, it appears as if these Republican members of the Elections Committee perceive some votes as potentially “bogus” for lack of sufficient proof—in Texas today, a current driver’s license or one of the other 5 forms of acceptable ID—of some voters’ legal qualification to participate as voters in the election.
IV. SO WHY IS IT A PROBLEM IF THE STATE TREATS VOTERS WITHOUT (APPROVED) PHOTO ID AS BEING DIFFERENT FROM VOTERS WITH (APPROVED) PHOTO ID? I MEAN, THEY ARE DIFFERENT, RIGHT? THEY DON’T HAVE PHOTO ID!
 
The problem with the State’s photo ID law is that it discriminates on the basis of race, but not overtly.
If the State had drafted a law explicitly excluding racial minorities from participation in elections, the discrimination would be obvious. Instead, the State created a photo I.D. law that had a discriminatory effect, in which access or lack of access to certain forms of proof of identification were imperfect and blunt proxies for the disproportionate exclusion of otherwise eligible minority voters from the election process.
 
Whether the discriminatory effect of the State’s photo ID law was intentional is a central question of the federal litigation that arose out of the law’s passage. Either (as the State contends) the photo I.D. requirements “accidentally” created a racially discriminatory voting procedure, or (as the plaintiffs in Veasey v. Perry contend) the State enacted an intentionally discriminatory law.
 
If state legislators and election officials feel comfortable subdividing and characterizing voters into the acceptable and the bogus, that institutional bias reinforces at least one of the arguments made by the plaintiffs in the voter I.D. case — that the State’s treatment of voters is motivated by racial animus. In other words, that the limitations imposed on those voters who do not possess the approved photo ID are motivated by the fact that those voters are disproportionately members of racial and ethnic voting minorities.
And if that’s the case, then one option for the court is to rule that remediation of this racial animus must come through a reapplied preclearance review process — through a so-called “opt-in” of federal oversight of Texas election procedures under Section 3 of the Voting Rights Act.
“Joe,” you might ask, “why are you sticking up for voters who may be untruthful when they fill out their Declarations of Reasonable Impediment?”
A state official who expresses concern about the validity of such a declaration isn’t saying anything about race, right? They just want to enforce honesty. What’s wrong with wanting to enforce honesty? Upholding honesty in the voting process isn’t racist. Right?
 
And that’s true. Honesty and truthfulness are to be encouraged in voting. But the members of the House Elections Committee already know that roughly 600,000 qualified eligible registered voters in Texas lack the legally prescribed forms of photo I.D., and that these 600,000 registered voters are disproportionately identified as being in legally protected classes of minorities. To then presume and assert the argument that these voters may falsely swear about their lack of ID in order to perpetrate election fraud is therefore logically no different from presuming and asserting that a known racially distinct and identifiable group of legally protected registered minority voters may cast “bogus” votes, and that they should be investigated accordingly if they do dare to vote.
 ***
From 1975 until 2013, the State and its political subdivisions were subject to federal regulatory preclearance of changes in voting procedures and laws, per Section 5 of the Voting Rights Act of 1965. That process of preclearance (either performed administratively by the U.S. Department of Justice, or judicially through federal district court review) had the positive effect of ensuring that potentially damaging and corrosive limitations on voting rights would be reviewed and blocked from taking effect. If Texas were to be brought back under external federal review, our rights as voters would be strengthened thereby. See: https://www.facingsouth.org/2013/08/in-denial-about-its-racism-texas-fights-preclearan.html
***
Postscript: If you’re new to the Texas Voter ID coverage, or want a refresher, the Texas Tribune provides an excellent and apparently regularly updated “Tribpedia” collection of articles on the Texas Voter ID law.
 
For this post, (as I often have before) I have relied heavily on the resources provided by the Moritz College of Law at Ohio State University (Election Law@Moritz), by Rick Hasen’s excellent Election Law Blog, and by the public records and materials provided by the Texas Legislature Online.

REGISTER TO VOTE BY OCTOBER 11, 2016, TO VOTE IN THE NOVEMBER 8, 2016, ELECTION

If you want to vote in the November 8, 2016, general election, you must register to vote by no later than Tuesday, October 11, 2016.

(If you are already registered to vote, then going to one of these sites will help you verify that you are registered.

For instance. My highly politically opinionated wife (hint: not a Trump supporter) just realized she doesn’t know where her 2016 voter registration card is. Cobbler’s family. No shoes.)

See: http://www.votetexas.gov/register-to-vote and http://www.lwvtexas.org.

Of Human Error and Voting By Mail, or, to Get All Modern on You, Customer Experience Issues with Ballot by Mail

I got a call the other day from a family member in Texas who had a question about her mail-in ballot.

Briefly, she had filled in her choices and put the ballot in the “big” (“carrier”) envelope to mail it back to the county election administrator, but then realized that she had an extra envelope left over — the smaller white “security” envelope that is intended to preserve the anonymity of the vote.

Worried, she opened up the big (“carrier”) envelope in order to retrieve the ballot so that she could put it in the security envelope, but in opening the big envelope, she tore the seal that bore her signature across the flap of the envelope. Now she was afraid that she had irretrievably invalidated her vote.

I. WHEN WE MAKE MISTAKES, IT ISN’T ALWAYS OUR FAULT

When something breaks or goes awry, do you blame yourself? In that instant when I realized our washing machine wasn’t spin-drying clothes, or when our car was stalling out at stop lights, I did momentarily interrogate myself. “What did I do wrong?” I’ve felt that stab of self-doubt and recrimination when my phone died, or when I lost my ATM card.

But sometimes there are systems and processes that invite and encourage the accumulation of errors, independent of any basic competence or mindfulness that we might apply to the tasks we attempt. Some processes are particularly and almost comically byzantine. We encounter convoluted Kafkaesque nightmares of contradictory and misleading expectations and commands that seem almost intentionally designed to lead us astray, and then leave us feeling dumb and guilty when we err, as if our mistake is some reflection on us and our value as a human being, and not merely a consequence of the fiendish trap that has been laid for us.

Of course, the Texas Election Code is a devil’s garden of baroque obfuscation, and voting by mail is not exempt from its systemic design problems.

II. AN EMBARRASSMENT OF INSTRUCTION, ADVICE, AND EXHORTATION CRASHES INTO OUR BRAINS

For those of you who have never requested a ballot by mail or voted absentee, here’s what the process looks like:

First, not everyone is qualified to vote by mail. In Texas, to qualify for a ballot by mail, a person has to be (1) absent from the county on Election Day and during early voting; (2) over age 65 or disabled; or (3) confined in jail, but eligible to vote. (My relative falls in (1) or (2) but not (3).)

Even if one is eligible to vote by mail, the process is not automatic. One must submit an application for a ballot by mail to the appropriate county’s early voting clerk responsible for the election.

After receiving a valid application for a ballot by mail (and assuming such an application is received not later than the eleventh day before the election (i.e., by no later than October 28, 2016 for the November 8, 2016 election), the early voting clerk for your county will send out a “kit” of materials for the voter to read through and assemble to return.

The kit (which is mailed out in its own special envelope) consists of a blank ballot, something called a carrier envelope, something called a ballot envelope, instructions, one or more advisories and notices (including, potentially, one or more of the following: a statement of residence, a notice (for voters over 65 or disabled) regarding the status and condition of the voter’s annual application for a ballot by mail, and a notice regarding identification for first-time voters), as well as a list of designated write-in candidates.

The thing called a “carrier envelope” is the “big” envelope that the voter will use to mail in the completed ballot, along with whatever else it is that the voter may be expected to mail back to the early voting clerk, such as a statement of residence, a statement confirming the correct mailing address for purposes of administering an annual application for a ballot by mail, and photocopied identification (for such voters as have to submit that material). The carrier envelope has suitably terrifying blocks of dense text to accommodate the regulation of mailed-in votes, and is printed in such a way as to ensure that the voter’s signature extends across the adhesive flap sealing the envelope.

The thing called a “ballot envelope” may either be an ordinary blank envelope, or may be a more elaborately printed envelope that announces itself boldly as a “ballot envelope” with its own collection of dense text. In either case, the ballot envelope is the envelope that is designed to hold the completed ballot.

So the voter is expected to fill out the ballot, put the ballot in the “ballot envelope,” seal the ballot envelope, put the ballot envelope in the “carrier envelope,” possibly sign an affidavit of residence, possibly copy a valid form of identification (if a first-time voter), put the affidavit and I.D. (if required) in the carrier envelope, seal the carrier envelope, sign the carrier envelope, and (if necessary) have the person who assisted the voter or served as a witness on behalf of the voter to sign the carrier envelope.

The thing is … the instruction sheets in the “kit” multiply and proliferate in potentially confusing ways. Some information is duplicated or separated into separate forms used for specific purposes. Not every voter will see the same forms (only voters who have moved or who have not voted recently will likely see a “Statement of Residence,” and only new voters are likely to get a notice regarding I.D.). And the blocks of text start to blend together. NOTICE. WARNING. DO NOT. REMEMBER. INSTRUCTIONS. INSERT. MUST. PER SECTION. AS REQUIRED. WARNING. WARNING. WARNING.

So … things fall apart. It is extremely common for things to fall apart. In fact, some forms of falling apart are intrinsic to the process of voting by mail.

  1. More than one ballot per envelope: It isn’t unusual that two or more voters living under the same roof will vote by mail in the same election, and often these voters will understandably short-circuit a few steps in the process by putting their ballots into the same envelope.
  2. Forgetting the statement of residence affidavit: When such an affidavit is called for, it sometimes gets misplaced.
  3. Putting the ballot directly into the carrier envelope, instead of the ballot envelope: This happens so often; so, so often. This error doesn’t in any way affect the validity of the vote, but means that the voter has given up the anonymity usually ensured when the early voting ballot board opens up the carrier envelopes and dumps out the envelope contents.
  4. Anxious reopening: This is common too. You voted. You put everything in the envelope. Right? Or did you? Oh god! You voted for the wrong person! Or you forgot to include something. Maybe you can just c-a-r-e-f-u-l-l-y peel open the envelopes to fix your mistake.

RRRrrripp! Dang! Now what?

Some errors are recoverable, and some are not, depending on where they occur in the process. Generally one hopes that common sense on the part of the election officials will prevail to give effect to the voter’s intent, but sometimes that isn’t possible.

If an early voting ballot board receives a carrier envelope that’s been ripped open and resealed, the concern is that the board may interpret the carrier envelope to have been tampered with by someone other than the voter, and may decide not to count the vote on the grounds that the ballot was compromised.

What if the voter includes a long, handwritten and heartfelt explanation? “I was rushed!  I tore the envelope open to doublecheck that I hadn’t done anything wrong — It’s really my vote, I swear!”

Eh … who knows? At least such a note provides context — and it will get read by a human being who can exercise independent judgment to forgive the mistake and count the ballot. Or not.

III. MY SUGGESTION TO MY CALLER: VOTE IN PERSON

In the face of error in assembling the ballot for return to the early voting clerk, one option for the mail-in ballot voter is to cancel the application for the ballot by mail and vote in person.

Which … okay. Let’s agree that this is not an ideal solution. It isn’t even possible in some circumstances — what about the person whose only realistic option was to vote by mail? Maybe it’s someone who is far away from home, or who is physically incapable of voting in person. What comfort is it to the person who cannot vote in person to suggest that an error in the mail-in ballot process can be fixed at the polling place or in the early voting clerk’s office?

Given how impractical my suggestion was for fixing the problem of a torn-open carrier envelope, why did I bother making the suggestion in the first place? Because one option (mailing a visibly tampered-with carrier envelope to the early voting clerk) would create a measurable and real risk that the early voting ballot board might (out of an abundance of caution and nervousness about “fishiness”) resolve not to count that ballot, whereas if the voter canceled the application and voted in person, the ambiguity raised by the torn envelope would be eliminated.

So again, my advice was fraught with all sorts of imperfections and weighing of options and appearances. Practically speaking, it might be easier for the voter to just write a big long note to the ballot board, (“Please, please, please count my ballot!”), drop the note in the envelope, tape everything shut, mail the whole mess in, and be done with it.

From my perspective, though, I thought, “why risk it?” I mean, why risk that the vote might not be counted? My aversion is with respect to the unknowable judgment of the early ballot board judge, who must weigh the integrity of the ballot against the common-sense understanding that people will often tear open their own carrier envelopes.