Passing the Buck on the Motor Voter Law, Texas Style

This week, the law firm of Waters and Kraus LLP sent a demand letter to the Texas Secretary of State, informing him of his failure to meet the legal requirements of the National Voter Registration Act, and of his legal liabilities under that federal law.

The law in question is Section 20504(a) of Title 52, Chapter 205, United States Code (text taken from uscode.house.gov):

(1) Each State motor vehicle driver’s license application (including any renewal application) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration with respect to elections for Federal office unless the applicant fails to sign the voter registration application.

(2) An application for voter registration submitted under paragraph (1) shall be considered as updating any previous voter registration by the applicant.

52 U.S.C. Sec. 20504(a) (2015).

Easy enough to understand, right? If you get a driver’s license, or renew a driver’s license, you get registered to vote, or you get your registration updated, assuming that you are legally eligible to vote.

Unfortunately, Texas has done an abysmally poor job of implementing that simple mandate, and the Texas Secretary of State has seemingly abdicated all responsibility for correcting fundamental programmatic errors and mistakes in the way that the law is implemented. More damning, public records show that the Secretary of State has been aware for years that the state’s implementation of the federal law is badly flawed, but has failed to correct the flaws.

1. WHAT EXACTLY IS TEXAS DOING WRONG?

In Texas, drivers’ license registration and renewal is handled by the Department of Public Safety. As in other states, people who want to legally drive a car, (or to continue legally driving a car), go to a government office, fill out paperwork, pay a fee, maybe have to pass a driver’s test or a simple eye exam, and get a license.

Of those people who get licensed to drive a car, a large number will be legally eligible to register to vote, or they will already be registered to vote. Whether those legally eligible voters actually get registered is dependent on a number of factors.

• Failure To Provide Forms

Sometimes, the mistake is a simple failure on the part of a customer service representative to actually provide the voter registration form – the person getting a driver’s license or renewal will be asked, “Would you like to register to vote?”, the customer will say “Yes,” but no data regarding the transaction will be entered. The customer leaves the office thinking, “I must be registered to vote now.”, but the whole transaction sinks without a trace into the black waters of the River Lethe.

Maybe the clerk didn’t hear “yes.” Maybe the clerk heard “yes” but thought it was “no.” Who knows? Certainly, the clerk’s processing of the license application or renewal is made incrementally less complicated if an additional form doesn’t have to change hands, and the line at the counter moves a little faster.

• Failure to Process the Information Correctly

Sometimes the customer service representative makes a more subtle error by going through all the overt steps of entering the customer’s data, but incorrectly. At least a record of the transaction exists, notwithstanding the mistake, and maybe the voter’s registration status can be saved through subsequent investigation. But for every hoop that the voter jumps through later (voting provisionally, having the provisional ballot reviewed by the county voter registrar, having the voter registrar seek transaction records from DPS, getting a final disposition letter from the early voting ballot board), the chance of another compounding error may derail the voter’s exercise of the electoral franchise.

• Willful Noncompliance

One might say, “Well, Texas is a big, lazy, badly managed State. What of it? Anyone who walks into a government office to get a driver’s license is aware that the clerks are sullen, poorly paid, badly trained, and resentful. We should be grateful that anyone at all ever manages to get registered to vote at DPS. In fact, we should be grateful that anyone at all ever manages to successfully get a driver’s license at DPS. Against ignorance and the insolence of office, the gods themselves struggle in vain.”

Such fatalism in the face of entropy and error is misplaced in this circumstance for two reasons. First, while any system of voter registration is likely to have some error rate, data trends suggest that the State of Texas experiences significantly greater errors in motor voter registrations than the national average (as per the demand letter’s citation of the 2012 EAC report on state registration trends).

Second, and more seriously, the State’s online driver’s license renewal system directly violates federal law, because it perversely cancels voter registrations for people who move from one county to another, without also automatically registering those voters in the new county.

2. The Unexpected Gotcha of Online Driver’s License Renewal and Address Corrections

Wait. What?

For as long as Texas has had a system of voter registration, it has been the case that when a person moves from one county to another, that person must re-register to vote in the new county. The act of changing one’s permanent residence from one county to another automatically cancels one’s voter registration in the former county of residence.

The specific mechanism of this cancellation is a bit convoluted. Section 15.021 of the Texas Election Code provides that a voter may correct or update his or her voter registration information. Meanwhile, Section 16.031 of the Election Code provides that if a voter’s correction or update indicates that the voter lives outside the county of registration, that the voter’s registration is immediately cancelled.

Okay. Granted, a voter may not know that a move across county lines automatically cancels one’s registration in the old county, but ignorance of the law is no excuse, and all that.

Now, take a look at subsections (d) and (e) of Section 15.021 of the Election Code. The subsections provide that a voter “who continues to reside in the county in which the voter is registered” may submit an address change electronically through the Department of Public Safety, in order to update the voter registration address, and that the Secretary of State will “approve technologies” and “prescribe additional procedures” for implementing the digital transmission of changes in voter registration.

Okay. What’s weird about that statute is the specification that the system is solely available to a voter “who continues to reside” in the county where that voter is registered to vote. What about the other voters? What happens to voters who don’t continue to reside in the county where they are registered to vote? Do they just suck eggs?

No. They get warned away from trying to use the online DPS license update in order to update their voter registration. Note – they aren’t prohibited from using the update system – they’re just given a warning. They still get a friendly little box to check, “Yes – I’d like to update my voter registration.”

But the National Voter Registration Act is clear – any existing voter who updates their driver’s license information should automatically be registered to vote in the jurisdiction that they now reside in. (52 U.S.C. Section 20504(a)(2)). Even if a voter has moved across county lines, and is therefore cancelled as a voter in the old county, that cancellation should be offset by the voter being registered automatically in the new county.

52 U.S.C. Section 20504(d) states that “Any change of address form submitted in accordance with State law for purposes of a State motor vehicle driver’s license shall serve as notification of change of address for voter registration with respect to elections for Federal office for the registrant involved unless the registrant states on the form that the change of address is not for voter registration purposes.”

No distinction exists regarding the legal effect of electronic or online address updates versus ones that are done at a DPS office; so the State is breaking the law by using voter’s online address updates to cancel voter registrations without balancing those cancellations with new voter registrations in the new counties.

It doesn’t matter that the State law has been interpreted for years to require a draconian “tough love” approach towards voter-initiated address updates – favoring cancellation without any compensatory registration in the new county. Such an interpretation cannot be reconciled with the express requirements of the federal law, which do not brook the creation of secret traps for cancelling registrations of voters who move from one jurisdiction to another.

Frankly, this lawsuit is long, long overdue.

Honestly, even outside the context of the “motor voter” law, the State’s “gotcha” interpretation of the combined effects of cancellation of voter registration (under Section 16.031 of the Election Code) and the treatment of innocent voter address updates (under Section 15.021) is probably a violation of the Equal Protection Clause of the 14th Amendment. But that’s a fight for another time.