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Monthly Archives: May 2014

Update – That 97-year-old voter could vote after all.

As is so often the case when someone describes an outrage, facts tend to transform the operatic injustice into something decidedly more banal. So is the case with the Dallas-area 97-year-old transplant from out-of-state, whose son contacted my mother to complain that DPS wasn’t issuing his mother a photo I.D., on the grounds that her certification of birth wasn’t the same thing as a birth certificate.

Well, DPS may still be balking on providing the photo I.D., (for reasons relating to proof of continuous residence in the state, I suspect), but the voter in question had already gotten her voter I.D. card some time ago. A post that consequently stirred up all sorts of excitement turned out not to be about a disenfranchisement after all.

For many years, the Texas Department of Public Safety has been in the official I.D. making business. Most commonly, these official I.D.s are drivers’ licenses of various types (commercial, motorcycle, non-commercial, with or without various endorsements or limitations, etc.) DPS also produces I.D.s that are not drivers’ licenses – these are “personal identification cards.” The various ins and outs of getting drivers’ licenses or personal identification cards are established within Chapter 521 of the Texas Transportation Code, wherein lies the sneaky Section 521.1426 that requires proof of a person’s duration of residence in the state.

Then there’s Section 521A.001, the sole section in Chapter 521A of the Transportation Code. That’s the law that governs issuance of “election identification certificates.” And while drivers’ licenses and personal identification cards work as acceptable forms of identification for purposes of voting, drivers’ licenses and personal identification cards are not “election identification certificates.”

To get an election identification certificate, DPS requires that an applicant “furnish to the department the information required by Section 521.142 [of the Transportation Code].” (Tex. Transp. Code Section 521A.001(f)).

Here’s the information required by Section 521.142 of the Transportation Code:

(a) An application for an original license must state the applicant’s full name and place and date of birth.  This information must be verified by presentation of proof of identity satisfactory to the department.  An applicant who is not a citizen of the United States must present to the department documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States before the applicant may be issued a driver’s license.  The department must accept as satisfactory proof of identity under this subsection an offender identification card or similar form of identification issued to an inmate by the Texas Department of Criminal Justice if the applicant also provides supplemental verifiable records or documents that aid in establishing identity.

(b)  The application must include:

(1)  the thumbprints of the applicant or, if thumbprints cannot be taken, the index fingerprints of the applicant;

(2)  a photograph of the applicant;

(3)  the signature of the applicant; and

(4)  a brief description of the applicant.

(c)  The application must state:

(1)  the sex of the applicant;
(2)  the residence address of the applicant, or if the applicant is a federal judge, a state judge, or the spouse of a federal or state judge using the procedure developed under Section 521.121(c), the street address of the courthouse in which the applicant or the applicant’s spouse serves as a federal judge or a state judge;
(3)  whether the applicant has been licensed to drive a motor vehicle before;
(4)  if previously licensed, when and by what state or country;
(5)  whether that license has been suspended or revoked or a license application denied;
(6)  the date and reason for the suspension, revocation, or denial;
(7)  whether the applicant is a citizen of the United States; and
(8)  the county of residence of the applicant.

Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 1413 (S.B. 1317), Sec. 1, and further amended by Acts 2011, 82nd Leg. 1st C.S., Ch. 4 (S.B. 1) Sec. 72.06:

(e)  The application must include any other information the department requires to determine the applicant’s identity, residency, competency, and eligibility as required by the department or state law.

(emphasis not in original) (S.B.1 is one of those huge omnibus bills. To get to Section 72.06 of the bill, go to the end of the bill and work your way backwards).

If Section 521A.001 of the Transportation Code had said something like “information required by Sections 521.142(b)-(c),” there would be less controversy all around.

Luckily, DPS has not interpreted the law to require applicants for election identification cards to complete driver education courses. And luckily, DPS does not (as far as I know) implement the provisions of the amended Section 521.142(e) to require proof of residency for individuals applying for election identification certificates. But notice the above highlighted language? That was added by the 2011 amendment, raising understandable concerns that applicants for election identification would be required to show the duration of their residence in the state if DPS or the state asserted duration of residence as a requirement in the future.

The problems outlined in the prior post still stand for those who want a personal I.D. or a drivers’ license. But as of right now, the homeless and new transplants can still register to vote and get election identification without having to comply with the requirements in Section 521.1426 of the Texas Transportation Code.

The “Same Name” Affidavit

Yesterday my wife called me from our neighborhood polling place – the kindly clerk was going to allow her to vote, but suggested that she might want to sign an affidavit in order to get an updated voter registration certificate. That’s because DPS prints her name as “Rachel Anne Jenkins,” while her voter registration lists her full name “Rachel Anne Owen Jenkins.”

I told her not to worry about it – I seriously doubt that she’s going to run into any trouble in November. But the episode was a reminder that the affidavit (or more properly, the “Voter’s Similar Name Correction Request Form”  is available in those circumstances where the name on the voter registration doesn’t match up with the name on the picture I.D.

The reason why I wasn’t worried is that her name on both forms is substantially similar.

Drawing the Line in Montgomery County

From the Montgomery County Courier comes this amusing/appalling story about electioneering, and the lengths to which the county election administrator has gone to preserve the peace near the main early-voting polling location.

One problem with an approach like this is that it leaves the impression that the distance from a polling place to the area where electioneering can occur has to be measured with precision and marked off. An easier and more common-sense approach is to roughly estimate where signs and shouting supporters can stand so that they won’t interfere with voters attempting to enter the polls.

Maybe the next step should be the erection of a geodesic hemispherical dome over the polling place.


Discovery Pleadings in the Redistricting Lawsuits – Texas Wants Those Embarassing Legislative Emails To Disappear

Not unexpectedly, the State of Texas is arguing that the plaintiffs in the consolidated redistricting case shouldn’t get to see or use select emails that were exchanged between legislative staffers and lawmakers leading up to the controversial 2011 Texas redistricting plan. (See http://txredistricting.org/post/85551572481/state-of-texas-asks-court-to-reconsider-order-directing at the Texas Redistricting and Election Law Blog for links to the judge’s order and the text of the State’s motion to reconsider).

The problem the State faces is twofold. First, some of the most damaging emails have already come out in previous litigation. Second, while the State must be commended for its legal chutzpah, there isn’t actually any such thing as “legislative privilege” in the sense that the defendant is using that term.

To be sure, there is a longstanding and recognized principal in parliamentary law that members of a legislative body should be free to debate without fear of being sued for slander or defamation. In other words, the legislative privilege gives members of the Texas Legislature protection from politically motivated civil prosecution for engaging in legislative debate. You know, the old spirited give-and-take of the lawmaking process. Notice that the protection applies to things that are said right out there in the open – the legislative privilege is a type of traditional legislative immunity from legal prosecution.

The State of Texas is trying to argue that “legislative privilege” is like “attorney-client privilege” or “doctor-patient privilege;” that it is somehow a shield against having to reveal what a legislator or legislative staff member wrote or said.

Why Do Some Elections Have Run-Offs?

The candidates for the Republican Party nomination for Lieutenant Governor in Texas have succeeded in producing one of the nastiest brawls in recent memory, with the nadir (so far) probably being the incumbent David Dewhurst’s cynical disclosure of the challenger Dan Patrick’s medical records. The fight is in advance of Tuesday’s primary run-off election.

Which brings me to three observations:

1. Primaries are weird elections – they are weird in the sense that while they are conducted with all the formality and order of general public elections, they are not, in fact, elections to office. They are mechanisms employed by private political associations to select partisan candidates for the November general elections.

2. Texas primaries are weird primaries – they are weird in the sense that Texas is the only state that imposes the responsibility of conducting the primaries on individual county political parties, which then contract with the county governments to provide the equipment and personnel for the election, and then are reimbursed after the election with state-appropriated funding for the cost of the primary. In every other state that has primary elections, the county, parish, or township government conducts the primary election, without any transfer of funds from the state to the political parties.

3. The timing and organizational schedules of Texas primaries are now labyrinthine and bizarre – the competing political and financial interests of county political parties, candidates for state office, county governments, the State, military and overseas voters, the federal government, candidates for federal office, private contractors, national political parties, independent candidates, and others (potentially including such surprising interests as advertising agencies, school principals, city bond counsels, tourism boards and people scheduling college graduation ceremonies) have collided in ways that could euphemistically be called “interesting.” I mean, just look at this mess. Texas political parties conducted the primary elections on March 4th, and then have the primary run-off resulting from those elections on May 27th. That’s nearly three months of political agony simply to find out who the party faithful want as their candidates for the November election.

Why do primary elections have run-offs? Why aren’t they simply winner-take-all elections like the November election?

The facile answer is that primary elections have run-offs because primary elections are determined by majority vote – but that just prompts the question as to why primary elections are determined by majority (as opposed to plurality) voting.

The more complicated answer is that majority voting cements intra-party support for the party candidate that is ultimately nominated, and that both majority and plurality voting systems are aspects of majoritarian democracy, which is inherently conservative (in the classical sense, not in the political sense), hostile to parliamentary coalition-building, ideologically stable, and slow to change. Majoritarian systems deny power to marginal groups, and discourage meaningful dissent.

That may sound negative, but it isn’t. It isn’t positive either, it’s just what the plurality of us want out of voting and government. We (I mean the plurality of us) want to avoid all the messy bickering and compromise associated with proportionate voting. We want things to stay the same for a long time, and then change quickly and drastically in short, punctuated bursts of complete political turmoil. That’s not good or bad, that’s just what we like. Other cultures prefer fluid, perpetually shifting ideological change, where the the turmoil is constant but muted, and not prone to wrenching, sudden overthrows.

Majoritarian voting isn’t the only game in town, and there are advocates for other forms of voting, and for other ways to choose party candidates. Don’t fall into the habit of believing that things like election methods and calendars are in any sense ideologically neutral.



A Perfidious Assault on Voting Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Texas Bar Offers Continuing Education Webinar on Post-Shelby County Litigation Tactics

I can’t recall when the Texas bar last offered a course on election law litigation, but they’ve got one scheduled for this month, on May 20th. One thing about Texas – this state has always provided a target-rich environment for civil rights litigation, but especially now in the neo-Jim Crow era.

The details on the webinar are available here: http://www.texasbarcle.com/materials/Programs/2973/WebCastInfo.htm