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Fifth Circuit Orders En Banc Review of Texas Voter ID Suit
Ari Berman analyzes the effects of the Fifth Circuit’s March 9, 2016 order. This is bad news for the plaintiffs, and for Texas voters generally. The foot-dragging has been especially galling, given the airtight factual evidence in support of the plaintiffs’ arguments.
(Note to the non-attorneys out there: the linked article explains this, but not everyone knows what “en banc review” means. After five months of delay, the court has collectively decided that the previous decisions regarding the State’s unconstitutional voter I.D. law need to be reconsidered by the entire panel of all the Fifth Circuit appellate judges, the majority of whom happen to be conservative political appointees).
As an additional follow-up; the Fifth Circuit Court of Appeals has rebuffed arguments for stopping implementation of the unconstitutional law until after the whole body of judges hear additional oral argument later this year. The law will likely continue to be enforced through the November 2016 presidential election, despite the fact that it has been found to be unconstitutional.
Everyone Pretty Much Agrees – The 2016 Texas Primary Schedule Is Going To Be A Mess
Ah, Texas, sweet Texas. Badly-redistricted, voter-hostile Texas. Because the 2011 redistricting lawsuits still aren’t resolved, there is a general sense among election officials that one of two things will happen in the next two months:
- Either the Western District of Texas, San Antonio Division redistricting panel will be compelled to issue a new and more equitable redistricting plan for the State sometime prior to the candidate filing period, or
- Having failed to hold time in a bottle, the court will reluctantly apply the map used in the 2014 elections once again for 2016, notwithstanding the increasingly problematic and widening gap between that map and the actual state demographics.
The Republicans have a rather handy ace up their sleeve to shoot down the remedial application of any corrective court-ordered redistricting plan, and that ace is their faith in the misapplication of a little U.S. Supreme Court case called Purcell v. Gonzalez, 549 U.S. 1 (2006). The position of both the 5th Circuit and the conservative majority on the U.S. Supreme Court appears to be that because Purcell called for caution in the application of last-minute court orders that might affect election schedules, it therefore follows that court orders protecting voting rights must not be enforced if an election is right around the corner. And an election is always, always just around the corner.
Of course, that’s just stupid, as Justice Ginsberg more than adequately explained in her dissent in Veasey v. Perry on the eve of the November 2014 election. When actual harm is being done to voters through actual violations of the law, the violator should not be able to say, “Oh well. Sorry about breaking the law, but it’s so close to the election. We just don’t have time not to break the law.”
If the judicial redistricting panel is going to fix Texas districts, it needs to do so by no later than November of this year – owing to increasingly early candidate filing deadlines to accommodate the Texas primary elections, district boundaries need to be known by no later than … well … now, if you want to be precise about it. The first day to file for party precinct chair elections is Tuesday, September 15th. Yes, as in September 15th, 2015. As in two weeks. The first day for candidates to file is one month later, on November 14th. The deadline to file is December 14th. Yes, as in this year.
The Texas Tribune has a nice background piece on the looming problem. (Election Managers Partying Like It’s 2012). If I were king, I wouldn’t care whether the parties got to have primaries or not – primaries are private elections conducted by social clubs (i.e., political parties). Primaries are beauty pageants for candidate nominations, and there are all sorts of alternatives in place for picking party candidates – caucuses, nominating committees, etc. Could a court order disrupt the primaries? Well, such are the wages of sin; nobody asked the Legislature to do an illegal job of redistricting back in 2011.
On a related note, Rick Hasen nicely excoriates our fair state in this recent analysis for Slate Magazine. (Texas Two-Steps All Over Voting Rights).
On the 50th Anniversary of the Voting Rights Act – A New Study from Rice University Corroborates the Damage Caused By the Photo I.D. Law
Not that anyone should be surprised, but there’s this:
One nice thing about this study is the timing, given the work that now needs to be done to judicially reform Texas voting laws. With this study, the plaintiffs in Veasey v. Perry should be able to help the Federal district court judge get over the hurdle placed by the 5th Circuit Court of Appeals. This evidence helps reinforce the trial court’s previous ruling holding that the State intentionally discriminated against minority voters.
The Fifth Circuit Decision in Veasey v. Perry Bends Over Backwards to Help the State
As other commenters have pointed out, today’s decision upholding the determination that Texas violated the Voting Rights Act is a painfully contorted partial affirmance and remand to the trial court for a remedy. (The link is to the copy of the opinion provided on Rick Hasen’s blog).
The appellate court in effect has said, “Well, Texas doesn’t always charge for birth certificates now (thanks to a mildly remedial law passed in the 2015 legislative session), so we think the picture ID requirement isn’t a poll tax. And … we think the trial court relied too much on an historical record of racial discrimination in Texas. That’s just mean. So … we’re remanding the decision to see if the trial court can find any more evidence of current racial discrimination. We grudgingly admit that the Texas picture ID law is illegal, but we’ll leave it to the trial court to figure out a way to carefully invalidate only those portions of the law that are bad. Which might not be the whole law.”
It’s really a terrible decision in a lot of ways; a sort-of wishy-washy agonized small-voiced acknowledgment that Texas broke the law, mixed in with page after page of carefully-worded dismissal of the mountains of factual evidence of intentional racial discrimination that prompted the law’s development in the first place.
Gosh. All that historical stuff just leaves the Court woozy and afraid that maybe the trial court was too hard on poor old Texas.
Partial Vindication – Texas Voter I.D. Law Held to Violate Voting Rights Act
Here’s Rick Hasen’s analysis on this breaking story. I find it troubling that the 5th Circuit remanded on the question as to whether the Texas picture I.D. law had a racially discriminatory purpose. Still, it’s at least a nail in the coffin of one of the worst voter suppression laws in the country.
Notice anything strange about these websites?
http://www.sos.state.tx.us/elections/index.shtml
That’s right – there’s not the slightest mention of the 5th Circuit’s decision. That’s quite a contrast from back when Shelby County v. Holder came out; (within two hours of that decision two years ago, there were notices plastered all over the Secretary of State’s website announcing that the State was doubling down on its special brand of violating voter’s rights and instantly applying the discredited voter ID law).
If a voter relied on the Texas Secretary of State’s website for information, they would think that it was all business as usual; http://www.votetexas.gov informs voters that a “picture I.D. is now required to vote.”
But you say, “Well, Joe, that’s kind of unfair. I mean … there’s all that HTML coding to do, and it’s after business hours, and …”
The decision came out at lunchtime. That’s six hours ago.
After all, the Texas Attorney General had time to put something up on that agency’s website.
What the … ? “Texas Voter ID Law to Remain In Effect”
Oh my god.
That’s embarrassing.
That’s really embarrassing.
I guess the A.G. takes the position that because the 5th Circuit remanded on the issue of intentional discrimination, the fact that the court upheld the trial court determination that the law is freakin’ illegal and unenforceable is somehow sprinkled with magic appellate fairy dust.
Then again, the following disclaimer should be prominently displayed and attached to all press statements made by the Texas Attorney General.
“Please note that the opinions of the Attorney General are those of an individual currently under indictment for three felonies involving acts of intentional fraud. Therefore, proceed with caution.”
Some thoughts on the eve of oral argument in Veasey v. Perry
As you may know, tomorrow (April 28), a three-judge panel of the 5th Circuit Court of Appeals in New Orleans will hear oral argument in Veasey v. Perry. Texas has appealed the trial court’s damning conclusion that the State had used its voter I.D. law to enact a deliberately racially discriminatory barrier to voting.
Back in March, as the April 1, 2015 deadline for its reply brief loomed, the State asserted that it would only need 11,500 words to successfully argue that its draconian picture I.D. law wasn’t targeting minorities. After all, it wouldn’t take much paper to say that Texas’ voter I.D. law is more universally and generally horrible than merely racist. It doesn’t just discriminate against protected racial and language minority groups – it also discriminates against elderly voters, student voters, the poor, voters with disabilities, and inconveniences or hinders voting in general for everyone.
And there’s the State’s argument on appeal – which I shall broadly and meanly paraphrase as follows. “This law is so bad, it can’t possibly have been motivated by mere racial animus. We just hate all voters.” (That’s actually the second part of the State’s argument. The first part is, “well … all the people who were disenfranchised should have just voted by mail.” Unfortunately for the State, that’s a terrible argument, in part because it violates equal-rights provisions of the 14th Amendment. In fact, it’s such a self-destructive “shot in the foot” argument that everyone else feels a little sorry for the State’s litigators for being forced to repeat it. I mean … they do know that equating voting by mail with in-person voting is sort-of cringe inducingly bad form in civil rights litigation, right?)
Embarrassingly, the powers-that-be at the Texas Solicitor-General’s office dawdled a bit over the crafting of their succinct brief, and accidentally filed it a few minutes after midnight on April 2nd. These things happen, and nobody (other than me) felt particularly inclined to capitalize on the minor technical error in order to gently ridicule the already hapless appellant.
On a more serious note, people interested in same-day coverage of tomorrow’s oral argument should contact Erik Opsal at the Brennan Center.
Erik Opsal
Communications Manager
646.292.8356
erik.opsal@nyu.edu
Finally, for a nice perspective on why the international reputation of the United States currently hangs in the balance over voting rights, here’s a nice paper by Patricia Broussard, published as part of a recent symposium on the Voting Rights Act conducted by the Journal of Race, Gender and Ethnicity. “Eviscerating the Voting Rights Act and Moral Authority: Freedom to Discriminate Comes With a Price” (Journal of Race, Gender and Ethnicity, Volume 7, No. 1, Fall 2015)
Reading the tea leaves – what do recent U.S. Supreme Court decisions bode for Texas elections?
Within the past week, the U.S. Supreme Court refused to grant certiori to hear an appeal of a decision upholding Wisconsin’s appalling voter i.d. law, (Frank v. Walker) and just remanded two Alabama redistricting cases (Alabama Black Legislative Caucus et al. v. Alabama et al., linked with Alabama Democratic Conference et al., v. Alabama et al.) back to the lower courts on a 5-4 decision holding that the state legislature could not justify “packing” African-American voters into fewer districts on the basis that it was compelled to do so in order to comply with Section 5 of the Voting Rights Act.
Superficially, this seemed to be a bit of give-and-take when it came to voting rights, although the cases weren’t directly comparable on the facts or issues.
So, what do these decisions mean for (1) the Texas voter i.d. case (Veasey et al. v. Perry et al.), or (2) the Texas redistricting case (Perez et al. v. Texas)?
Answer: Not much either way. The Texas Legislature (bless its aggregated shriveled dignity) overreached far more aggressively on both voter i.d. laws and on redistricting than did any of the other states (with the possible exception of South Carolina, which seems to be giving us a run for the money on efforts to cement the title of “most regressed” when it comes to voting rights).
As a consequence, the Texas lawsuits present voting rights advocates with an interesting set of tactical choices. On the one hand, the State has been such a bad actor that it is absolutely imperative that its voter i.d. and 2013 redistricting be struck down in the Supreme Court as unconstitutional, and that its future actions be subjected to “opt-in” preclearance under Section 3 of the Voting Rights Act.
On the other hand, because Texas pushed the envelope on bad legislative acts, the State provided some cover for other states involved in similar lawsuits. It’s sometimes handy to be able to point to another entity and say, “Well, at least our state government didn’t try something on the order of what Texas did!”
In the case of the Wisconsin litigation, the plaintiffs lacked sufficient evidence of malicious racial intent to invoke key provisions of the Voting Rights Act. In the case of the Alabama litigation, the plaintiffs prevailed only in knocking back a couple of fairly tenuous legal arguments justifying racial gerrymandering.
In the Texas litigation, the stakes are much higher, and the evidence for racial animus is much stronger. As for me, I just hope that the Supreme Court fixes the Texas mistakes. As much as I might hope that Justice Roberts would have a change of heart regarding the importance of the Voting Rights Act for the country as a whole, I really just want some acknowledgment that there are fact patterns so egregious that they can embarrass even a few hard-core states-rightists.
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Post-Election Report Indicates Systemic Election Issues
After the November 2014 general election, Battleground Texas used the data from its Election Day voter hotline to summarize and describe the problems that voters faced in the election. That public report is available as a .pdf file through Battleground Texas. You can read the report here.
Among other things, the report finds that (1) the statewide voter registration list is riddled with errors (and the fact that the statewide database went down on Election Day was frustrating), (2) compared to the experience in other states, provisional ballots in Texas are used disproportionately in response to registration problems, (3) The Texas Department of Public Safety has a deserved reputation for particularly poor handling of “motor voter” registrations, a responsibility of the state agency that administers drivers’ license issuance and renewal as mandated by the National Voter Registration Act, and (4) voting systems in Texas are showing their age – equipment is breaking down, touchscreens are getting misaligned, and the availability of back-up machines is declining.
Another significant problem lay in the organization and staffing of polling places – as with almost every election, there were a number of precincts across the state that just couldn’t seem to get their act together. Polls opened late, failed to manage lines of voters properly, enforced nonexistent proof of identity requirements, failed to accommodate voters who needed accessible voting due to limitations on movement or other disabilities, didn’t bother to provide sufficient ballots, turned voters away, or otherwise disenfranchised eligible voters. Poor treatment of voters tended to disproportionately affect minority voters and voters with limitations on movement.
Materiality in the eyes of the beholder, and voting rights
One could imagine an officeholder responding to the report with an air of jaded acceptance. “Of course we infuriate voters, leave people angry and frustrated, and sour the voting experience. But our poor management of elections didn’t have a material effect on the outcome of the election.”
With respect to specific races, such a statement might not be true – targeted mistreatment or neglect of voting rights might well have tipped election results; the potential that such miscarriages of suffrage might be prosecuted in civil court is relatively slight, and given that voters traditionally and consistently have been ruled to lack standing to file election contests (because unlike candidates, voters are deemed to lack a justiciable property right in the assignment of public offices), the burden and expense of arguing that an election came out “wrong” falls on the candidates’ shoulders.
But even when an election turns out “right” (i.e., after discounting all other factors, including discouraged voters, voters who were pressured or coerced, voters who were disenfranchised, etc., the number of “clean” votes in favor of the winner were sufficient to overcome the number of “clean” votes in favor of the loser), one can still trespass on the rights of individual voters.
And so in one sense, focusing on the “materiality” and “proportionality” of the harm done by disenfranchising voters is looking at the problem of badly-run elections through the wrong end of the telescope. The act of voting (independent of the choices made by the voter on the ballot) is the voter’s formal participation in government. A voter who isn’t able to vote has therefore not formally given his or her consent to the acts of that government, and lives in a state of subjugation to totalitarian whims.
For that reason, prosecution of violations of voters’ civil rights, as well as prosecution of election-related crimes is not based on whether the election came out “right” or “wrong,” but on the experience of the individual victims. It is no defense for the entity or person responsible for a voter’s bad experience to argue that the voter’s vote “wouldn’t have changed the outcome.”
The Great Chain of Being Cranky About Disenfranchisement; or The Stupids, Continued
After the November election, a number of editorial articles came out with variations on the following theme – that the various depressing voter I.D. laws didn’t actually have much effect on elections. Because hey, the Republicans knocked the elections out of the park, right? That happened despite disproportionately good turnout among minority voters in some elections.
Such editorials are music to the ears of the extreme right (“Yeah. See, we’re not racists. If we were racists, we would have had to turn the firehoses on the swarms of minority voters that voted in the November 2014 federal elections. But we didn’t have to use firehoses or police dogs, or even fire any tear gas into the polling places. Therefore, we have conclusively demonstrated that we’re not racists. Plus, we love democracy. Democracy was very good to us.”) and to the defense attorneys representing the State of Texas in its appeal of Veasey v. Perry et al.
I mean, if an editorial by Nate Cohn in the New York Times, (that notorious hotbed of centrist legal opinions), comes out saying that voter I.D. weren’t no big deal, then the centerpiece of the plaintiffs’ evidence against the State in Veasey is undermined, and the State should walk on all charges, right?
Mr. Cohn was extending a dialog he had begun with the Brennan Center on this question with an earlier and similarly dumb editorial along the same themes.
Mr. Cohn’s argument runs like this: It must be the case that 600,000 Texas voters weren’t disenfranchised because if they had been disenfranchised, they would have been turned away from the polls. Since 600,000 people weren’t turned away from the polls, 600,000 people weren’t disenfranchised. Quod erat demonstram. Ipso facto. Res ipse loquitor. Et cetera.
And because only a fraction of all registered voters lack sufficient I.D., (say, 9 percent, or 11 percent, or something like that) it means that voter I.D. laws don’t actually change election outcomes. Right? Right? Because if the bad guy won by 20 percent, then even if all the voters without i.d. had been able to vote (and even if all of them had voted for the bad guy’s opponent), the bad guy would still have won by 11 percent, or 9 percent. Or whatever.
I’ve written about this before, but maybe if I write slower and louder, people will begin to understand.
The secret to getting people not to vote is to discourage them from attempting to vote. And because the cost of voting is so high compared to the benefit, it is very, very easy to discourage people from voting.
And when people don’t vote, they don’t make an ostentatious show of not voting. They don’t gather en masse, carrying placards and linked arm-in-arm at the polling place to not cast their ballot, in a vast silent repudiation of their civic authority. Such mass demonstrations by non-voters would be quite satisfying, if they happened, and would make for some fun political theater. But they don’t happen, because showing up at a polling place to not vote is almost as much bother as showing up at a polling place to vote.
Non-voters don’t go out of their way to proclaim their nonvoting status. They go to work or school. They run errands. They watch T.V. Some of them register to vote, but fail to register on Mr. Cohn’s radar, and so he assumes that they don’t exist. Some of them fail to register to vote, period, and so they don’t even show up in the statistics of “registered voters who lack i.d.”
The authors of the sociological studies at the heart of the plaintiffs’ case in Veasey v. Perry didn’t merely rely on the self-selecting sample of voters who actually go to vote. They called people up and asked them direct questions about their status as voters, and about their inclination to vote or not vote, based on their circumstances.
As it turns out, (as amply demonstrated by our most recent election) disenfranchisement works. It would have been embarrassing to the arch-conservative proponents and apologists for picture i.d. requirements if disenfranchisement hadn’t worked, because it’s actually kind of an administrative pain in the ass to exclude those naughty liberals from the polls, and it costs money to administer draconian voter i.d. laws. Luckily for the right, everything went swimmingly.
Let’s look at the November 2014 elections in one Texas county, and see how disenfranchisement succeeded in that county.
Harris County, Texas
Voters in Harris County had a long ballot to work on this year, in part because this very heavily populated county has an enormous county and district judiciary to handle the legal caseload generated by its roughly 4,330,000 residents. As it seems to happen every four years, the district and county courts were filled by Republican candidates, who pretty uniformly won their seats by consistent margins, just as they had even when Bill White carried Harris County in 2010.
2010 was a watershed year for the county – it was the first Federal decennial census in which Harris County had more than 4 million people. The City of Houston, meanwhile, was estimated to have just a smidge under 3 million people; there’s no doubt that Houston, like much of urban Texas, is experiencing a tremendous population boom. In fact, the county has added roughly 240,000 people or more since the 2010 Census; my guess (and the guess of the U.S. Census demographers) is that the recent population increase skews in favor of Hispanic or Latino residents.
As of the 2010 Census, slightly more than 40% of the Harris County population identified as Hispanic or Latino, while about 33% identified as non-Hispanic white, and about 18.4% identified as non-Hispanic black. As of 2013, those percentages were estimated to work out as 41% Hispanic, 19% Black, and 32% non-Hispanic white.
A lot of people under 18 live in Harris County, so let’s say that only about 72 percent of the total population are voting age. That’s about 3,117,600 voting age people in Harris County as of 2013.
So … how successful have people been at registering Harris County residents to vote? Well, out of those 3.12 million voting-age people in Harris County, only 2.06 million were registered to vote in the November 2014 election. So let’s see, um, that’s a 66% registration rate.
Hmm. Let’s see. In 2002 (a relatively slow gubernatorial election year, with anemic turnout), there were 1.9 million registered voters in Harris County.
But … Wait. What? That’s almost as many registered voters as there are now in that county.
What was the voting-age population of Harris County in 2002? Well, the estimated 2002 population in the county was 3.54 million. Of those, we’ll guess that around 71% were 18 or older (based on the 2000 census data). So that’s an estimated voting age population of 2.51 million in 2002, of whom 1.9 million were registered. That’s a 75.6% registration rate.
I’ll admit that a 75.6% voter registration rate wasn’t spectacular in 2002. But it was definitely better than a 66% registration rate in 2014. If the Harris County Voter Registrar had managed to just tread water with regard to registration between 2002 and 2014, we’d expect that there would be about 2.36 million registered voters in Harris County as of the November 2014 election.
Which works out rather nicely as a shortfall of 300,000 people in the Harris County voting-age population who should have been registered voters (based on historic trends), but who weren’t registered.
Now … from 2002 to 2014, the racial demographics in Harris County basically flipped for white and Hispanic voters. In 2002, about 42% of the voters were non-Hispanic whites, and about 32% of the voters were Hispanic.
What the Texas Republicans realized in 2011 is that they would have to find a way to discourage both voter registration and voting in Harris County, so that while the percentage of non-Hispanic registered voters would remain roughly steady (rising a very modest 8% over the course of 12 years), the percentage of Hispanic registered voters would need to go down. And it would need to go down by a big margin.
The available tools were varied, and ranged from bad-faith purges and registration challenges to outright bullying and strong-arm tactics. But none of those tools would be as effective (in terms of the percentage of potential votes suppressed) as a simple increase in the opportunity costs of voter registration and voting.
This is an area deserving of additional study, but I would hazard that by focusing solely on the suppressive effect of voter i.d. laws as applied to registered voters, studies by the Brennan Center and others have dramatically underestimated the intended and successfully achieved levels of vote suppression generally. The underestimate is the result of failing to consider the suppressive effect of harsh election laws not just on the people who are already registered to vote, but also on the people who haven’t registered yet.
If the suite of laws enacted in 2011 (not just picture i.d., but also restrictions on volunteer deputy registrars, the mealy scrutiny and comparison of error-ridden databases, etc.) managed to drop voter registration in Harris County by around 13%, and the picture i.d. requirement managed to mess up voter eligibility for around 9% to 11% of the remaining 2.06 million voters, wouldn’t it be more accurate to say that (in Harris County, at least) that voter suppression succeeded in three ways, by:
(1) trimming the rolls of around 300,000 (mostly minority, poor, or elderly people) who would otherwise have registered to vote;
(2) discouraging another 180,000 to 220,000 registered voters from bothering to vote (the latter group also being disproportionately composed of minorities and the poor), and;
(3) so debasing and screwing up the election experience for everyone else that turnout was at an all-time low (around 678,000 votes cast in the big races, or around 33% of the registered voters).
It starts to look like the Republicans were running up the score in an unseemly way. I mean, if you start with 3.12 million possible voters (more or less), disenfranchise one sixth of those voters (say, around half a million), and then demoralize two thirds of the rest so badly that they don’t bother to come out and vote, well then … voila!
You get an instant Republican grand slam. A mandate for the ages, and an endorsement by our polity of the emerging πρωκτοκρατία (proctocratia, i.e., a form of government known as a proctocracy, administered by proctocrats).
Hey! You there! Candidates in Harris County who lost!
If you lost, and you lost by a margin of around 24% of the vote or less, strongly consider filing an election contest. Remember – such an action must be initiated not later than 30 days after the canvass of your election, by filing suit in district court. Your clock is ticking. Also remember (if you’re feeling a little sheepish about filing such a lawsuit) – that the November 2014 general election was an illegal election.
As for Mr.Cohn of the New York Times, here are some general tips for successfully navigating the confusing world we live in.
Sometimes bad actions are identified by absence, rather than presence. For example, if you are in a coal mine, and most of the canaries have suddenly gone silent, that isn’t proof that the remaining canaries are happy and content. That’s evidence that something is wrong.
“Well, everyone said that when the crew hit that natural gas pocket, it created a poisonous atmosphere. But I heard that at least 32% of the canaries were still singing. Therefore, the natural gas pocket could not have had any measurable effect on the health of the canaries. Q.E.D. Res ipse loquitor. Et cetera, et cetera. Say, does anyone else feel a little light-headed?”