Ari Berman & Others on Texas Voter Registration and Jim Crow: tl;dr: Racism, Recalcitrance, Restrictions
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.”
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
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 questions, Director 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:
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.)
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.
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).)
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.
- 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.
- Forgetting the statement of residence affidavit: When such an affidavit is called for, it sometimes gets misplaced.
- 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.
- 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.
Hollywood Star Power – Joss Whedon’s “Save the Day” PSA Gets Out the Vote, and Debra Messing’s “Will and Grace” Reunion Makes the Case for Clinton.
In 2012, Hollywood director and nerd messiah Joss Whedon did a viral video taking down Mitt Romney’s campaign, by archly suggesting that Mr. Romney’s potential election would be more likely than not to bring about the zombie apocalypse, thereby leveling the playing field between the rich and the poor in the flaming aftermath.
As has been reported by Slate, Hollywood Reporter, the Washington Post, the Guardian, and, well, everybody, for the 2016 Presidential election, Mr. Whedon’s “Save the Day” super PAC has assembled great gobs and handfuls of A-list stars including Robert Downey Jr., Scarlett Johansson, Julianne Moore, Martin Sheen, Marc Ruffalo, and many others, to make a simultaneously funny and earnest public service ad, urging everyone — but in particular young and first–time voters — to register and cast their ballots in the November 2016 election, in response to the, as the video puts it, “racist, abusive coward who could permanently damage the fabric of our society.”
In a similar vein, Slate reports that Debra Messing and her fellow cast members from the series “Will and Grace,” which ended in 2006, have done an election-focused reunion episode (“#VoteHoney“) to get out the vote. In the video, the blithely horrible narcissistic racist (and frequently hilarious) Karen voices her support for Trump, while Will and Grace fall firmly in the Clinton camp, and ultimately they manage to convince predictably undecided Jack to vote for Clinton as well.
Speaking of the election, don’t forget that in Texas, you must register to vote by no later than Tuesday, October 11, 2016, to be eligible to vote in the November 8, 2016 general election. http://www.votetexas.gov
One particular piece of work within this ramshackle edifice of voter suppression and general discouragement of the democratic process is Section 61.033 of the Election Code, which states that in order to serve as an interpreter for a voter who requires language assistance, “a person must be a registered voter of the county in which the voter needing the interpreter resides.”
The law, such as it is, has a long pedigree stretching back to 1918, (Act of March 23, 1918, 35th Leg., 4th C.S. Ch. 30 (H.B. 104), although a requirement that election officials could only communicate via English in the polling place was added by the Act of March 13, 1919, 36th Leg. Ch. 55 (S.B. 244), 1919 Tex. Gen. Laws p. 94), The 1919 law reflected a longstanding nativist fear (pumped up by anti-German sentiment after World War One) that some language other than English might intrude into the polling place; that fear is still reflected in Section 61.031(a) of the Election Code, which more or less tracks the xenophobia of the old 1919 law.
After the passage of the Voting Rights Act, the state law was softened to permit language assistance at the same time that multilingual ballots were provided.
But … while Section 208 of the Voting Rights Act provides that voters should be able to make use of language assistance of their own choosing, the state law still exhibits a weird reluctance to help voters out by imposing that pesky have-to-be-registered-to-vote-in-the-same-county-as-the-voter requirement on interpreters.
That restriction found in the state law was never defensible (given that it directly contradicts federal law), but it’s interesting that it took so long for a group of plaintiffs to find a test case to knock it down.
But … better late than never. On August 12, a federal district court in the Austin division of the Western District of Texas granted a motion for summary judgment on behalf of a group of plaintiffs against the State of Texas, and enjoined the State against enforcement of Section 61.033 of the Texas Election Code. NBC News covers the story here: “Federal Judge Strikes Down Texas Law That Violates Voting Rights Act.” And the text of the August 12, 2016 opinion (OCA Houston v. State of Texas, 1:15 CV-00679, Western District of Texas, Austin Division) is here, linked to scribd.com within the NBC online story.
The facts of the case highlight why it was a bad idea for the State of Texas to specify that interpreters had to be registered voters in the same county as the person that they were helping. A voter with limited English proficiency went into a polling place in Williamson County with her son, intending that her son would help her read the ballot. If the voter’s had been deemed to merely be offering “assistance” (i.e., help in marking the ballot), he wouldn’t have been challenged. But he was “interpreting” (i.e., translating the ballot), and the election workers at the polls determined that he could not do so, because he was registered to vote in Travis County, not Williamson County.
That’s a weird, restricting, artificial reason to thwart voter intent.
The smart move on the State’s part would have been to settle and accept an agreed judgment the instant that the lawsuit hit the transom — there is absolutely no upside to fighting this. We’ll see if common sense prevails.
As has been widely reported, the State of Texas has temporarily rolled back the worst aspects of its draconian picture I.D. voting requirements in the face of the recent 5th Circuit decision. Ross Ramsey at the Texas Tribune responds to the development with an excellent overview of the pressing need for preclearance and continuing federal oversight of Texas elections generally.