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.