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The True Cost of Free Voter I.D. in Texas

Per Section 521A.001 of the Texas Transportation Code, the Department of Public Safety will provide voter I.D. cards without charge upon application. However, these voter I.D. cards (which cannot be used to satisfy other statutory demands for identification) may only be issued at select DPS offices, and only to individuals who present sufficient legal documentation of their citizenship and identity.

Herein lies the rub. As “free” I.D. is presumably intended to accommodate the indigent, we may assume that the greater demand for these I.D. cards would be from those potential voters who don’t have much in the way of resources.

So how much would it cost to get a free Texas voter I.D.?

For the sake of argument, assume that the potential voter is an indigent patient of the Rusk State Hospital in Rusk, Texas. Such a voter is not representative of the Texas population, but shares some qualities with a group of Texas citizens who are particularly unlikely to participate in elections (namely, the institutionalized, the disabled, the indigent, and the elderly).

First, one must apply for a voter I.D. in person at a designated DPS office. As critics of the Texas voter I.D. law have pointed out, the number of available offices has declined, making the task of getting an I.D. more formidable (especially for people in rural areas). There is no drivers’ license office in Rusk, Texas – the closest office is on 506 East Pine Street in Jacksonville, Texas. But this isn’t too bad – the DPS office is only about 15 miles away from the hospital. Although there’s no public transportation to speak of, an ambulatory person without a car could walk from Rusk to Jacksonville in about four hours, by keeping to the shoulder of U.S. 69 going northwest from downtown Rusk (and keeping in mind that customers will be served in the order they arrive, and that the DPS office is open from 8:30 to 5:00 Monday through Friday).

Although Rusk State Hospital is a psychiatric hospital that is stereotyped as a prison hospital, it is also the primary mental health care provider in East Texas, and serves both captive inmates, involuntarily committed civilians, and the general population. Of course, confined patients could simply vote by mail from the hospital and avoid the bother of I.D. voting altogether, but it isn’t inconceivable that a transient patient might need to acquire a voter I.D. for in-person voting, despite being treated at the hospital.

In any case, our example will serve to identify the issues faced by any residents of Rusk who need a picture I.D. to vote, but who lack a driver’s license.

After getting to the DPS office and filling out an application for a voter I.D. certificate, one must provide documentation of U.S. citizenship using one of the following documents:

  • U.S. passport book or card
  • Birth certificate issued by a U.S. state, U.S. territory or District of Columbia
  • For U.S. citizens born abroad—Certificate of Report of Birth (DS-1350 or FS-545) or Consular Report of Birth (FS-240) issued by the U.S. Department of State
  • U.S. Certificate of Citizenship or Certificate of Naturalization (N-560, N-561, N-645, N-550, N-55G, N-570 or N-578)
  • U.S. Department of Justice Immigration and Naturalization Service U.S. Citizen ID Card (Form I-197 or I-179)

Third, one must provide documentation of identity. Those with U.S. passports are well-set, given that the passport is a primary document proving both citizenship and identity. However, the other items in the above list are insufficient proof of identity, and must be paired with at least two of the following items:

  • Social security card
  • Form W-2 or 1099
  • Driver license or ID card issued by another U.S. state, U.S. territory, the District of Columbia or Canadian province (unexpired or expired less than two years)*
  • Texas driver license or ID card that has not been expired more than two years
  • Temporary receipt for a Texas driver license or ID card
  • School records* (e.g., report cards, photo ID cards)
  • Military records (e.g., Form DD-214)
  • Unexpired U.S. military dependent identification card
  • Original or certified copy of marriage license or divorce decree (if the document is not in English, a certified translation must accompany it)
  • Voter registration card*
  • Pilot license*
  • Concealed handgun license*
  • Professional license issued by a Texas state agency
  • ID card issued by a government agency*
  • Consular document issued by a state or national government
  • Texas Inmate ID card or similar form of ID issued by Texas Department of Criminal Justice
  • Texas Department of Criminal Justice parole or mandatory release certificate
  • Federal inmate identification card
  • Federal parole or release certificate
  • Medicare or Medicaid card
  • Selective Service card
  • Immunization records*
  • Tribal membership card from federally-recognized tribe
  • Certificate of Degree of Indian Blood
  • Unexpired foreign passport
  • Unexpired insurance policy valid for the past two years (e.g., auto, home or life insurance)
  • Current Texas vehicle registration or title
  • Current Texas boat registration or title
  • Veteran’s Identification Card from the U.S. Department of Veterans Affairs
  • Hospital-issued birth record*
  • NUMIDENT record from the Social Security Administration
  • “NUMI-lite” letter from the Social Security Administration

The asterisked items must have been issued by some government-owned authority.

Some of the secondary documents that would prove identity are less likely to be possessed by an indigent person, given that these documents are dependent on ownership of personalty or realty. Therefore, I’ve drawn a line through those documents. Other items would more likely be in the possession of a non-U.S. citizen, and can be excluded as well. I won’t presume whether or not the voter has some criminal record or military service, and forms of identification available to former inmates or veterans could exist.

The two supporting documents must come from two different agencies; thus, one could not use both a NUMIDENT record and a NUMI-lite letter from the Social Security Administration.

Anyway, how much might it cost to get at least enough documents to get a free voter I.D. card?

U.S. Passport and Card – The passport is worth more than gold, as evidenced by the $165 ($140 application fee plus $25 execution fee) price tag. Expedited service is another $60, and these charges do not include the cost of the photo. Some savings can be realized by just applying for a passport card (instead of a passport book) which is just $55. Keep in mind that the passport application process will also require certain documents to prove citizenship and identity, and these may require an additional charge. If the applicant has previously had an expired passport, a $150 search fee can be paid to confirm that prior evidence of citizenship.

Certified birth certificate – If from a U.S. jurisdiction, it appears that the cost ranges from around $12 to $20, although there is no uniform rate; the fees are set by the jurisdiction issuing the certificate. Consular reports of live birth issued by U.S. embassies currently cost $50, which is the uniform fee for any vital record from the U.S. Consular Service.

A replacement certificate of naturalization costs $345, per information provided by the U.S. Customs and Immigration Service (see form N-565).

U.S. Citizen I.D. card – The so-called Form I-197 I.D. card is no longer issued, so while it is still useable as proof of citizenship, there is no mechanism for gaining or replacing such a document.

Assume for the sake of the example that a potential voter does not have access to a form “proving” citizenship. If that is the case, the applicant will be out an additional amount of money, regardless of the availability of other secondary documents proving identity. If the applicant is lucky, he or she was born in circumstances that led to the creation of a birth certificate in some U.S. jurisdiction, in which case the free voter I.D. will cost around $10 to $20, plus the opportunity cost associated with the time and effort required to request and receive that document.

If the voter is unlucky (as is the case for anyone whose vital records were destroyed in a fire, as in the case of my grandmother, or in many circumstances of midwife-assisted birth in Texas or California, where filing of vital records tended to be lax), then the cost will soar to somewhere between $55 and $165 or more for a passport. If the person was naturalized but lacks documentary proof, the cost is going to be around $345. For more intractable documentation problems, the costs will be much higher, and may require court proceedings to settle questions of identity and citizenship.

How many Texans are disenfranchised by picture I.D. requirements? The best guess (see the 2006 study by the Brennan Center for Justice, “Citizens Without Proof”, and related discussions of that study.) is around 11% of the voting-age population. The percentage of poor adults without sufficient documentation is likely to be higher, as is likely also the case with lower income voters and voting age members of racial and language minorities.

Given that picture I.D. requirements impose a financial burden on voters, those requirements deserve the same opprobrium as is aimed at poll taxes and literacy tests; such burdens effectively place a price tag on citizenship. But there are choices that a legislature can make to transform a bad voter I.D. law into a somewhat less bad law. One solution is to include a “no-fault” affidavit of inability to pay costs that completely substitutes for any photo i.d. requirement.

Such a measure is still objectionable on the grounds that it stigmatizes the indigent. But at least it would allow those individuals a chance to vote. We can already see what happens to the rights of the most needy when they lack any representation at all.

 

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Texas Voter I.D. Law – A Closer Look

Notwithstanding the avalanche of lawsuits likely to enjoin enforcement of the State of Texas’ current voter picture I.D. law (Act of 2011, 82nd Leg., R.S., (S.B. 14), codified as Section 63.0101, Texas Election Code), the politically ambitious Attorney General has insisted that the law became effective immediately upon the finding that Section 5 of the Voting Rights Act was unconstitutional. This is quite a stretch, given that the D.C. district court had found intentional racial animus as the motivating factor in passing the I.D. law, strongly implying that Voting Rights Act Section 2 claim would succeed.

But setting aside the politics of voter I.D., I find it interesting that in general, popular media descriptions of the Texas voter I.D. law tend to accept as a given that the law is the same as or very similar to voter I.D. laws passed in other states, with Indiana and Georgia voter I.D. laws often serving as the comparative standard by which the Texas law is judged. That the Texas law was “no different” than these other state laws was certainly a talking point promoted by the supporters of the Texas law while the legislation was being debated in 2011, but the presumption of similarity doesn’t bear up under close examination.

Here’s how Indiana currently defines “Proof of Identity” for purposes of voting (from Title 3, Article 5, Chapter 2, Section 40.5 of the Indiana Code, available online at: http://www.in.gov/legislative/ic/code/title3/ar5/ch2.pdf).

IC 3-5-2-40.5

“Proof of identification”

Sec. 40.5.

(a) Except as provided in subsection (b), “proof of identification” refers to a document that satisfies all the following:

(1) The document shows the name of the individual to whom the document was issued, and the name conforms to the name in the individual’s voter registration record.

(2) The document shows a photograph of the individual to whom the document was issued.

(3) The document includes an expiration date, and the document:

(A) is not expired; or

(B) expired after the date of the most recent general election.

(4) The document was issued by the United States or the state of Indiana.

(b) Notwithstanding subsection (a)(3), a document issued by the United States Department of Defense, a branch of the uniformed services , the Merchant Marine, or the Indiana National Guard that:

(1) otherwise complies with the requirements of subsection (a); and

(2) has no expiration date or states that the document has an indefinite expiration date;

is sufficient proof of identification for purposes of this title.

As added by P.L.109-2005, SEC.1.

Amended by P.L.118-2011, SEC.1.

(Emphasis added).

So at first glance, this seems to be more or less like the Texas law. In circumstances where proof of identification is required of a person in the registration or voting process, an Indiana voter must have some current document issued by the state or the United States. Title 9, Article 22, Chapter 16 of the Indiana Code provides an elaborate system for the production of non-driver I.D. cards, at no charge to non-drivers over the age of 18; exceptions are made for victims of domestic violence or abuse who are enrolled in a confidential address program, and for veterans. The system of state-provided voter I.D.s also has provisions for I.D.s for resident aliens and temporary residents that distinguish those groups from voters.

But the Indiana law: (1) does not require picture I.D. voting by residents of a long-term care facility; (IC 3-11-8-25.1(e)); allows the use of state-school issued student I.D.s (IC 3-5-2-40.5(a)(4)); allows a voter without adequate I.D. to supply an affidavit in lieu of a picture I.D. in certain cases (i.e., based on indigent status or religious objection) (IC 3-11.7-5-2.5(c)(2)), and, as mentioned above, authorizes the use of all military and veteran’s I.D.s.

In contrast, the Texas law is much stricter. Section 63.0101 of the Texas Election Code provides the following list of required I.D.:

Sec. 63.0101.  DOCUMENTATION OF PROOF OF IDENTIFICATION.  The following documentation is an acceptable form of photo identification under this chapter:

(1)  a driver’s license, election identification certificate, or personal identification card issued to the person by the Department of Public Safety that has not expired or that expired no earlier than 60 days before the date of presentation;

(2)  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;

(3)  a United States citizenship certificate issued to the person that contains the person’s photograph;

(4)  a United States passport issued to the person that has not expired or that expired no earlier than 60 days before the date of presentation; or

(5)  a license to carry a concealed handgun issued to the person by the Department of Public Safety that has not expired or that expired no earlier than 60 days before the date of presentation.

Tex. Elec. Code Section 63.0101 (2013).

Among other things, note that the Texas law excludes more forms of I.D. than the Indiana law, limiting acceptable I.D.s solely to those that have not expired within 60 days. No accommodation is made for military I.D.s without expiration dates, and no provision is made for accepting any other state-issued I.D.s not issued by the Department of Public Safety. Admittedly, the list does include the quaintly peculiar accommodation of concealed handgun licenses, but this isn’t particularly helpful to those groups otherwise unlikely to have I.D. (i.e., the indigent, the disabled, and the elderly).

To be fair, Texas does offer the following: (1) Voters who have a determination from the Social Security Administration or Veterans Affairs that they are at least 50 percent disabled are exempt from the requirement to show picture I.D. (Tex. Elec. Code Section 13.002(i)); (2) Voters who lack picture I.D. due to natural disaster or because of a religious objection to being photographed may execute an affidavit to that effect when voting provisionally (Tex. Elect. Code Section 65.054(b)(2)); and people over the age of 70 are entitled to receive a non-expiring voter I.D. from the Department of Public Safety (Tex. Transp. Code Section 521A.001(h)).

These are all ad hoc (and frankly, almost impishly backhanded) sorts of accommodations.

Social Security and V.A. disability determinations are variable fact-based administrative determinations based on an individual’s occupational incapacity, not on some uniform standard of physical or mental impairment; of two people with identical physical impairments, one could be judged disabled while the other one is not, simply because one is a physical laborer while the other is an office worker.

A Texas voter can execute an affidavit that that voter’s I.D. was lost to a natural disaster, but the accommodation of the loss of documentation due to a natural calamity only occurs in those circumstances where the Governor or the President has declared a disaster within the last 45 days (for disaster relief); one can easily imagine a person affected by personal disaster that doesn’t rise to the level of a declared emergency.

And finally, while individuals over the age of 70 may receive non-expiring voter I.D.s, they will still have to provide the same documentation of their identity and submit to the same administrative hurdles as anyone else applying for state i.d.

The Indiana law is of a piece with most other “strict picture I.D.” state laws that have been adopted since 2005; it is subject to the same broad editorial criticisms that have been leveled at the insistence on picture I.D. at the polls; Indiana followed the model of laws adopted in Georgia, Wisconsin, Virginia, Florida, and half-a-dozen other states.

But what the national critics of voter I.D. have failed to notice is that Texas voter I.D. law is significantly more strict than the laws adopted by other states, in particular because it makes no explicit accommodation of indigents, provides no mechanism to accept “same in quality” alternative forms of I.D., makes no exception for persons living in nursing homes, and limits disability exceptions solely to those individuals who have successfully negotiated disability determinations from either the Social Security Administration or the VA.

What is a Public Official?

Is a member of a school board a public officer? Most people would automatically say “yes.” What about a superintendent for the same school district? The answers might be a little more hesitant, there might be a few faint “noes” heard from the crowd. Now, what about the elementary school principal? What about the fourth-grade math teacher? What about the school nurse?

If a school nurse or a fourth-grade math teacher isn’t a public officer, what makes that position different from the position of school board trustee? Is a school board trustee a public officer in the same degree and of the same capacity as a city mayor? Is a mayor more or less of a public officer than a county constable? Attorneys are referred to as “officers of the court.” Are they somehow legally affected or bound by that appellation? Police officers get commissioned by government; does that mean the beat cop is a public official? Is there such a thing as “officer-ness?”

There are all sorts of practical reasons why people ask these questions. A superintendent is dismissed – does that affect the validity of a contract for the construction of a new gym? Does a mayor continue to accrue insurance benefits while contesting the results of a recall election?

Disputes arise over money, assignments of liability, sovereign immunity, legitimacy, real and apparent authority, and an uncountable number of other legal fights that are grounded in public law.  Questions about public office and office-holding are of real and immediate importance, and the answers affect people’s lives and welfare, so it’s a good idea to come up with some kind of answer.

When the United States declared independence from Great Britain, our judges were careful to preserve an English common law corpus as the foundation for our laws; this promoted continuity in commerce and civil institutions. But we didn’t preserve the philosophical continuity of English public law.

The central crisis facing colonial lawyers during and after the Revolutionary War was to identify where laws come from. In the lands subject to the British Crown, the question was and is easy to answer – all law and all authority rests in the monarch, and is delegated by degrees to various institutions that owe their creation and continued existence to the pleasure of the hereditary ruler. To the extent that there is a body of English public law, it can be summed up almost completely as “the will of the sovereign,” softened by a few enfolding centuries of legal reform and Victorian principles of honest government.

The colonial rejoinder to English sovereignty was to assert that law derived from the will of the governed – that the people are sovereign. This seems like a perfectly workable substitution – one could imagine a post-Revolutionary War judge or lawyer mentally substituting the amorphous collective “people” whenever trying to interpret the effect of some pre-1776 case or statute.

But almost immediately after Independence, American law began to diverge from English common law traditions in more fundamental, unintended, unexamined, and unexpected ways. For political and social reasons, our public law (i.e., the laws of government organization and sovereignty) slowly became enmeshed in a labyrinth of confused policies and divided purposes. Eventually, American public law became entangled in philosophical dead ends that (in retrospect) would have been entirely avoidable if we had just stuck to the simple notion that the people are sovereign.

For reasons that I suspect have to do with early American Romanticism in philosophical fads, newly enfranchised American courts began applying principles of civil public law to questions relating to the exercise of public office and public authority.

1,200 years before the Revolution, Emperor Justinian got to put his name on one of those massively obsessive-compulsive public works that the Romans were so fond of manufacturing -namely, the Justinian Code or Codex – a sweeping compilation of a millennium of legal tradition, tidied up, indexed, and organized by topic. In the course of creating this work, its editors made distinctions between public and private law that have no parallel in the English legal tradition, and then they built massive thematic outlines to restate and pin down the relationships and parallels between all laws.

In other words, the Byzantine legal editors were looking for organizing principles of legal theory, and they had the academic firepower, money, and will to succeed at their task. Ultimately, they built beautiful self-consistent and organized crystalline hierarchies of public legal authority based on the notion of degrees of discretionary governmental authority and judgment.

So … imagine an organizational chart, with the Emperor at the very top. The Emperor exercises unlimited discretion, with the power of life and death over everyone. Just below the Emperor are a group of senior managers, who exercise slightly less discretion. Below those managers are still more managers, with narrower fields of authority.

Eventually the whole organizational chart gets revealed, and someone reviewing the chart can look up a particular praetor, or consul, or whatever, and say, “the person with that job title has the discretion to order x, y, and z, but not other things, and answers to whoever has the job title one level up, who has the authority to order t,u, and v.”

Of course, the Lex Publica was just part of the whole Codex, which was immensely useful as a document for managing public and private rights and duties. So when Western Europe fell apart politically, a lot of local strongmen just kept on referring to the Codex (maybe throwing in a few tribal laws for a little color).

Now, there’s nothing particularly democratic about either the Roman-derived continental European civil law or the English common law. And there’s nothing particularly distinct about the ends accomplished by one philosophy of law or the other; the common law and the civil law are just two different ways of organizing one’s thoughts about ordered society. Both systems are tradition-bound; both are the product of autocratic dictatorial forms of government; and in either one, policy changes are swaddled in some sort of deliberative justification that may be disconnected from the actual reason for the change. When the common law needs to change, a policy maker appeals to some perceived (and possibly infinitesimal) change in factual circumstances that justifies a new principle. When the civil law needs to change, a policy maker appeals to an intellectual reexamination and (possibly almost insubstantial) reorganization of hierarchical philosophical principles. In the end, the trains still have to run on time.

But arguably, English public common law expresses a bracingly blunt and brutal “realpolitik” about the nature of sovereign power that civil codes tend not to articulate. There is no distinction between public or private officers in English common law. A British soldier on parade, a striving Cockney who manages a fish and chips stand, Graham Norton on TV, Dame Judy Dench  in the West End, the Archbishop of Canterbury, the Prime Minister, and the Lord Exchequer are all in the same position with respect to the monarch – each continues in his or her post and employment (whether that employment is private and commercial, charitable, religious, nakedly capitalistic, military, political, or in any other field of human endeavor) only at the will, sufferance, and pleasure of Queen Elizabeth II, subject to an enormous body of monarchial concessions and franchises that have been granted over the millennium. Neat organizational charts exist to categorize and organize positions of trust and discretion, but those charts exist only for convenience, and in the common law, every hierarchy could theoretically be swept away with a single blow of the headsman’s axe.

Meanwhile, in the U.S., we have clumsily grafted legalisms of title and comparative levels of discretionary authority onto an arguably incompatible larger body of court-made law. Then, to compound the problem, we have steadily and consistently neglected to examine the historical and philosophical origins of our laws, weakening any sort of claim to logical consistency in the ways that we apply public laws.

What do we mean when we say that someone is a public official? Usually, the term is used to refer to someone who is at least in the informal sense “in charge” of some governmental department or agency. One can find many examples regarding “public office” where the answer to the question seems to be a final and definitive, “who knows?” For example, see the following opinion of the Texas Attorney General (Op. Tex. Att’y Gen. GA-886 (2011)).

In response to the question “Is a notary public a public officer?”, the best answer that the State’s own legal counsel can offer is “maybe.” The opinion concludes,

Some authorities that discuss notaries and state officers indicate that notaries are not officers, others indicate that notaries are officers, and others indicate very little, if anything, about the issue. Furthermore, no Texas constitutional provision, statute, or appellate court decision has directly addressed whether a notary public is an officer for purposes of chapter 603 [of the Texas Government Code]. Accordingly, we cannot definitively determine whether or not notaries are officers under chapter 603 of the Texas Government Code.

Op. Tex. Att’y Gen. GA-886, at 2.

In the course of coming to this decision, the opinion mentions a significant test of “public officialness” used in Texas, and the court opinion that articulated that test. Per the opinion, “Texas courts have held that “‘the determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.'” Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955).” Id., at 1.

So the test, (which is rooted in the hierarchical civil law way of looking at the public office), is dependent on whether the person holding a position is given the power to exercise sovereign functions for public benefit independently. Well, terms like “sovereign functions”, “public benefit”, and  “independently” are terribly mushy and indistinct; they offer no solid ground on which to stand.

It’s not that the concepts are meaningless; but that ideas like sovereignty, public benefit, and independence of supervision all describe relative conditions. Hence we see that the legal definition of public office in Texas is fundamentally broken – if there is no way to know whether or not notaries are subject to certain laws applicable to public officers, the same might be true of other types of office as well.

This legal confusion about a fundamental element of public law (which was bad in 1955, and has only gotten worse since) is frustratingly symptomatic of even larger philosophical problems in American jurisprudence; the sort of problems that lead to miscarriages of the law such as Citizens United v. Federal Elec. Comm’n., 558 U.S. 310 (2010), and to the peculiarly wrongheaded notion that corporations are something more than just revocable franchises of the sovereign.

The Secret Texas Election Code

To tell the truth, there isn’t really a secret Texas Election Code, at least not in the strictest sense. But there is a body of administrative rules that materially affect how elections are conducted in Texas. The rules themselves (found at Title 1, Part 4, Chapter 81 of the Texas Administrative Rules – see the Links page) are a mixture of frustratingly terse and oblique exercises of administrative interpretation of the Texas Election Code, together with extremely detailed and technical rules, betraying a kind of schizoid development process.

But assuming that the Election Code can be completely understood without the administrative rules is dangerous. I’ll illustrate examples of that later in connection with rules for accessible voting system security, confidential voting by victims of domestic violence, and management of primary finance.

A second kind of secret election code has developed over the years in the form of unwritten, informal interpretations of the sometimes incomprehensible Election Code. I’ll point out a couple examples of this as well in future posts.

 

The Forgotten Election Laws of Antebellum Texas

The Handbook of Texas has a generally excellent article on the origins and development of Texas statutory law relating to elections (see, O. Douglas Weeks, “ELECTION LAWS,” Handbook of Texas Online (http://www.tshaonline.org/handbook/online/articles/wde01), accessed July 03, 2013. Published by the Texas State Historical Association).

However, the article omits any discussion of the pre-Civil War election laws that prevailed in Texas. Luckily, the University of North Texas has created an incredibly powerful resource for researching early Texas law online.

What should a set of election laws accomplish? We’d expect at a minimum that the laws would (1) describe where and when elections should take place; (2) how to appoint people to conduct the election; (3) how to accept the voters at the polls; (4) how the votes should be cast and tabulated; (5) how the results should be applied; (6) how to resolve ties and disputes; and (6) describe procedures for guarding against fraud.

On May 11, 1846, the Texas Legislature passed a comprehensive law in 30 sections that regulated elections in all the above respects. See: Gammel, Hans Peter Mareus Neilsen. The Laws of Texas, 1822-1897 Volume 2, Book, 1898; pages 1515-1524; digital images, (http://texashistory.unt.edu/ark:/67531/metapth6726/ : accessed July 03, 2013), University of North Texas Libraries, The Portal to Texas History, http://texashistory.unt.edu; crediting UNT Libraries, Denton, Texas. The 1846 law is remarkable not only for the differences that it represents, but also for the ways in which it is similar to current law.

One huge difference is that voting in 1846 was not secret – votes told the election officials who they were voting for, with plenty of witnesses around, and with the exact nature of each individual’s vote written down for all to see. One can quickly see how this process enforces conformity; one isn’t likely to vote against a powerful empresario or haciendado when everyone will know.

But there are some deep similarities as well. Voters were exempt from arrest while voting; election officials were required to take an oath to execute the election in an impartial way; and elections could be contested through a written judicial review process.

The 1846 law was by no means the first legislative enactment in Texas relating to voting (a body of inherited Spanish colonial law and numerous emendations to voting procedures following Mexican independence already existed, even before Texas was a republic, and there were a number of ad hoc laws to regulate voting in specific plebiscites as well as regular local and state elections). But the 1846 law does appear to be the first comprehensive body of post-statehood Texas laws that carefully regulate elections in general, rather than just in special cases.

Resources for Texas Election Officials, Voters, and Policymakers

One might ask why Texas election law would warrant a blog, given that the Secretary of State (http://sos.state.tx.us/elections/index.shtml) already provides a good resource for voting information.

Among other things, this blog will provide editorial commentary, historical research and perspective, and a deeper and more thorough analysis of Texas election law than can be provided by a state agency website.

I welcome commentary from county clerks and election administrators, election judges and clerks, voters, and policymakers.