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REGISTER TO VOTE BY OCTOBER 11, 2016, TO VOTE IN THE NOVEMBER 8, 2016, ELECTION

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.)

See: http://www.votetexas.gov/register-to-vote and http://www.lwvtexas.org.

Updated Election Forms

It’s high time for me to update my consolidated index and links to the various scattered election forms offered by the Texas Secretary of State, given the twists and turns of state election law over the last year. As I’ve mentioned before, the resources provided on www.sos.state.tx.us/elections are useful and yet still remain strangely organized so as to be difficult to find, with various redundant or incomplete separate web pages that divide up various forms based on assumptions about the end users of those forms.

Of course, the authoritative source is still the Texas Secretary of State. Now they just need to make the forms easier to find (hint – use the link labeled “Conducting Your Elections” and then go to the links under “Laws and Procedures Pertaining To”).

Happy New Year From Texas Election Law Blog

Here are a few short notes regarding what’s going on in Texas Election Law right now:

The Austin-American Statesman reported a few days ago that at a meeting of the Texas Election Administrators Association, the state director of elections promised legislative or administrative fixes to the requirement to include former voter names on the voter registration certificates. The announcement is a welcome one, and is a hopeful sign of a common-sense fix to a confusing and weirdly communicated change in the way that voter registration certificates were prepared. On a related note (also from a recent Statesman article), problems with voter I.D. have motivated the Travis County voter registrar to mail warnings to 37,000 voters who may not have sufficient I.D. to vote under the current laws.

As I mentioned previously, I was asked to testify in a recent criminal case involving illegal voting. The defendant was found guilty (and judging by a comment left by someone identified as “Juror2013,” the defendant wisely chose to have a different finder of fact impose the sentence). I will do a longer post with my impressions of the case, but the executive summary is this: my testimony was no help to the defendant or anybody else, criminal law is a fascinating demimonde that I thankfully don’t practice in, and there is little room in a criminal trial for moral idealism or philosophical debate.

As always, the Texas Redistricting Blog has excellent updates on the status of the voter I.D. lawsuits here.
The state’s briefing seems pretty weak, stretching to argue that the Texas photo I.D. laws aren’t as “mean” or punitive as the ones enacted in other states. Um. Yeah. Is that really the hill that the state’s attorneys are willing to die on?

A Perspective on Name Changes Appearing on Voter Registration Certificates

A recent bit of kerfuffle has arisen regarding the practice of listing all of a voter’s prior names on the voter registration certificate – this isn’t a new law, but heightened concerns about how voter I.D. may be enforced have left some women concerned that (1) their voter registration lists some odd typographical mangling of a maiden and married name, or (2) lists a former name that hasn’t been used for many years.

I haven’t been shy in my criticism of voter I.D. laws generally, but I think one must be careful to separate one issue (the dreadful policy decision to dramatically restrict the forms of  photo I.D.) from another (the format and treatment of prior names when printing the voter registration certificate).

As is so often the case with the state law, the Texas Election Code is not particularly clear about how the voter’s name is supposed to appear on the registration certificate.

When applying for voter registration, a voter must provide his or her “first name, middle name, if any, last name, and former name, if any,” per Section 13.002(c)(1) of the Election Code. The certificate itself must be printed with “the voter’s name in the form indicated by the voter, subject to applicable requirements prescribed by Section 13.002 and by rule of the secretary of state,” per Section 15.001(a)(1).

The first problem is that Section 13.002 of the Election Code doesn’t prescribe any requirements regarding how the voter’s name is printed on the certificate – it prescribes what information the voter has to submit in order to register to vote. The second problem is that the statute gives discretion to the voter to define the form of the voter’s name, and then immediately undercuts that discretion by making it subject to an agency administrative rule. Whatever one may think of the statutory drafting, it does appear that the legislative intent was to ensure that the name provided by the voter would get printed on the certificate.

On July 29, 2013, the Secretary of State issued a routine biennial directive to voter registrars, emphasizing the statutory requirements associated with voter registration certificates.  Among other things, Section 2.7 of the directive described how the voter’s name should appear on the certificate, stating, “The voter’s surname together with the first name or a combination of the first, middle, and former name must appear on the certificate. The voter registrar may also include abbreviations of names indicated on the voter registration application.  As a routine matter, print the former name on the certificate if it is given on the application.” (Emphasis added).

This is boilerplate language that has been included in similar directives issued every summer in odd-numbered years for many years (or at least since the statutory language in Section 15.001(a)(1) was adopted in more-or-less its current form in 1995) (74th Leg. R.S., ch. 390). To the extent that name changes disproportionately affect women voters (because of the practice of adopting a husband’s surname, etc.), and to the extent that such name changes may be strangely formatted or mangled as the result of data entry errors, those annoyances have been part of the voting experience for a long time.

The biggest printing problems were reported in Travis County. In response to angry voters, the county voter registrar issued a press statement indicating that the listing of prior names was the result of changes in the law following the adoption of picture I.D. requirements. I have to disagree with the county’s interpretation – whatever ills may have been born out of the whole “substantially similar name” mess did not mandate the format of the voter’s name on the voter registration certificate.

[PLEASE NOTE: I now know that voter registrars across the state were reacting to a September 13, 2013 memo from the Secretary of State that more-or-less directed them to print voters’ current and former names in a particular format. For the updated story, see the following post.]

Voters across the state were mad in Travis County because their names didn’t appear on the voter registration certificates in the same format that the voters had provided on their registration forms. In other words, Travis County apparently stored older voter information (including name changes) in some sort of database, and then printed the voters’ names as they appeared in the database, rather than as they appeared following the voters’ submission of corrections on new registration forms after the name changes.

The Travis County voter registrar is likely not motivated by a desire to suppress votes by women, but by a desire to redirect voter anger over misprinted voter registration certificates. The real meanness of Texas photo I.D. requirements isn’t revealed in the voter registration certificates (which have become sort-of useless appendages to the voting process, since they aren’t treated as I.D. any more) but in the polling place procedures for accepting voters.

Two State of Texas Election Information Websites?

A 2008 national survey of government portals for election information conducted by the Pew Charitable Trust revealed (as nicely summarized by the title of the 2011 update to the original report), “Being Online is Still Not Enough.” The original report and the follow-up can be found online at http://www.pewstates.org/research/reports/being-online-is-still-not-enough-85899376525.

As befitting an online critique and survey of the efforts of each of the 50 States and the District of Columbia to inform and assist voters, the report and the 2011 addendum are both sophisticated presentations, with interactive maps, state-by-state comparisons, best-practices recommendations and examples, and so on.

Interestingly, a state’s economic size or per capita wealth does not seem to correlate strongly with how well that state does in providing online election information to its voters, except that as with so many other areas of government service, the State of Mississippi was judged to be seriously lacking.

With the caveat that any aesthetic critique of websites is going to be subjective, both Florida and Louisiana scored significantly better than Texas in terms of voter outreach, while California and New York voter information websites scored worse. Texas and the impoverished West Virginia are neck-and-neck.

As interesting as the state-by-state survey might be, I think the “best practices” suggestions made by the Pew Charitable Trust researchers were actually the most valuable aspects of the 2008 survey and the 2011 follow-up.

But frustratingly, the survey failed to ask, “why does Votetexas.gov (formerly votexas.org) exist in the first place, given that the State already had a comprehensive portal for voter information?”

“Outsourcing” of government functions is at least theoretically a morally and politically neutral concept. But in practice, outsourcing is often a euphemism for a whole host of questionable decisions.

In the case of Votetexas.gov, Texas Secretary of State Phil Wilson (now at the Texas Department of Transportation) decided around 2006 to beef up various public service advertising efforts associated with voting. This led to a contract with Enviromedia to produce PSAs, ancillary election communication outreach, and a website with voter information on it.

EnviroMedia had the Secretary of State account until 2012. As Elections Director Keith Ingram mentioned in his deposition testimony in the Texas v. Holder lawsuit, the vendor for the 2012 “Make Your Mark on Texas” PR campaign was Burson-Marsteller. Santori Interactive MMDA is the subcontractor/solo app. designer responsible for the SmartTxVoter tablet/smart phone application that integrates with the votetexas.gov website.

Unfortunately, by outsourcing voter information that had previously been vetted and managed in-house, the Texas Secretary of State effectively took content control out of the hands of the agency staff, and gave it to a bunch of contract laborers. It’s not that the contract couldn’t have been been structured to allow the Elections Division to retain final editorial control over VoteTexas.gov, but that the contract cut the election law officials out of the loop.

VoteTexas.gov has all the earmarks and appearance of an official “in-house” government website, right down to the .gov top-level domain name indicator. At the same time, the official and actually authoritative site (www.sos.state.tx.us/elections) was redesigned to shuttle casual questions from regular voters and other non-election officials over to the votetexas.gov site. Know your websites! The votetexas.gov is the product of a for-profit marketing firm, and while I’m sure that those marketing pros are committed to providing accurate information, they are not the same people who actually write and interpret the state election law.

Texas voters may want to go to the “conducting your election” page at http://www.sos.state.tx.us/elections for policy answers and actual election law advice that comes straight from the horse’s mouth.  It’s understandable that the Pew Charitable Trust reviewer could not have known that Votetexas.gov wasn’t subject to the same editorial review as sos.state.tx.us/elections when the 2008 and 2011 surveys were conducted.

Another Problem With Texas Photo I.D. Requirements

This post comes courtesy of Dan Teed (the Harrison County Elections Administrator), via the Texas Association of Counties elections list server. This issue reinforces that voter I.D. requirements should not be about confirming residence, but should merely be about confirming that a voter exists. By drafting a law that compels the use of just current drivers’ licenses, the Texas Legislature has managed to disenfranchise voters who must maintain out-of-state drivers’ licenses for their jobs.

As Mr. Teed reports, a considerable number of voters live along the Texas-Louisiana border – per Louisiana law, these people have to carry Louisiana drivers’ licenses for their jobs, but in some cases, they have lived and voted in Texas for 20 or 30 years. Because Texas DPS won’t issue a driver’s license to someone who maintains an out-of-state license, these voters are out of luck. They don’t qualify for election I.D. cards, and any other acceptable option for I.D. is expensive.

Similar problems likely arise for voters who commute to Arkansas, Oklahoma, New Mexico, and Colorado for work.

Early Voting in the November 2013 Texas Constitutional Amendment Election: Two Views

In the election news cycle yesterday and today, one of the stories has been about how smoothly picture I.D. voting has been going in the first statewide election since the law went into effect.

On the one hand, state and county election officials report that there have been almost no problems at all. Married and divorced women have not been disproportionately turned away at the polls due to identification issues resulting from name changes, and there are no reports of widespread provisional voting or unprepared voters. The media take on this is that the Texas Democratic Party has lost traction and credibility on the issue of picture I.D. voting, arguably because the party oversold the potential that voters would be turned away at the polling places.

The State of Texas and the U.S. Department of Justice might both cite improvements in the adminstration of picture I.D. requirements in Texas for this election – among other things, the State broadly expanded the number of entities authorized to issue photo i.d.s, and the Department of Justice might regard these improvements as attempts by the State to mitigate liabilities for civil rights violations in direct response to DOJ’s civil rights lawsuit over picture I.D.

A number of commentators have been careful to point out that the policy questions about the adoption of picture I.D. requirements for voting are clouded by political rhetoric from both sides of the political spectrum. On the left, there is probably a tendency to overstate the suppressive effect of picture I.D. laws in general. On the right, meanwhile, buzzwords like “security and election integrity” are chosen to justify picture i.d. laws on the basis of purely imaginary waves of election fraud.

Anecdote is poor evidence of systemic problems with elections, and it is unwise to rely on either individual reports of voter problems (“I had to vote provisionally because my name on my picture I.D. doesn’t exactly match my name, therefore picture I.D. suppresses voting.”) or the evident lack of such reports (“County voter registrars report that after two days of early voting, not a single person has called to complain or been turned away from voting due to an i.d. issue.”)

Why is it so easy to fall into the habit of false generalization on this issue? Here are some reasons that come to mind, off the top of my head.

  1. Selection bias – The population of voters is self-selected, and is not directly comparable to the population of all people who could vote, or of all people who (from a social utility perspective) should vote or ought to vote. This selection bias is more pronounced in an election as sleepy and low profile as the November 2013 state constitutional amendment election in Texas – the tiny number of people who actually manage to turn out and vote in an “off-season” election like this one are arguably a committed and motivated group when compared to the larger population of all people eligible to register to vote.
  2. Sampling bias – Sampling just the complainers is probably not the best way to collect data on election problems. One of the things that struck me as interesting about working in the Elections Division at the Texas Secretary of State’s Office wasn’t how many phone calls we would get (the number ranging anywhere from around a hundred on a slow day to a couple thousand on an election day), but how few calls we got. Neither the roughly 12 million registered Texas voters, nor the roughly 1 million eligible non-registered people of voting age make a habit of calling with election questions or complaints, but we can’t infer that the population is happy just because the per capita number of complaints is low.
  3. Modeling bias – The media, election officials, and political party strategists all envision “voting problems” as meaning something, but they don’t necessarily share the same mental impression of what that something is. As widely reported, Texas gubernatorial candidate Wendy Davis had to sign a “same name” affidavit (provided as part of the new name-comparison law) because her name changed as a result of marriage. This could either be reported as a problem (“Requiring a voter to sign an affidavit creates an unacceptable risk of bureaucratic error in the handling of many women’s votes, the danger of interference with those votes, and an institutional discouragement of voting by women.”) or as a non-problem (“Aside from having to complete an affidavit (comparable procedurally with the old “no voter certificate” affidavit), Senator Davis successfully cast a ballot that will be tabulated with all the other valid ballots in this election. Therefore, the name comparison system is working perfectly, Senator Davis’s ballot will be counted, and this so-called problem isn’t a problem.”)

It turns out that actual social science research costs actual money and time and intellectual creativity. When institutions such as the Brennan Center for Justice or the Pew Charitable Trust are trying to figure out if changes in voting procedures are harmful or helpful, they do things like conduct carefully designed polls, build economic and policy models, conduct deep interviews of voters, non-voters, discouraged voters, almost-voters, and election workers, conduct mock elections and user forums, focus groups and behavioral studies, enlist sociologists and statisticians, and attempt valiantly to identify and counter all sources of conscious and unconscious bias that might skew the results.

Good journalists can do the same sort of deep digging, but sadly it happens less and less.

I’m no fan of picture I.D., partly because I think its a product of ignorance, graft, and simple, brutish, mean-spirited bullying. But I also hesitate to say that the ills of photo i.d. will manifest themselves in big, camera-friendly riots and mayhem at the polls. In other words, the suppressive effects of photo i.d. requirements are all the more worrisome because those effects are likely to be invisible – isn’t it at least theoretically possible that some of the reason for the low turnout might well be attributable to the new voting procedures?

[UPDATE: The first version of this entry erroneously reported that Senator Davis voted provisionally. She did not – she completed an affidavit regarding her name change, and otherwise voted normally].