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I’m reposting Professor Hasen’s editorial in today’s New York Times (linked through his election law blog) here for three reasons.
First, it’s a clear-eyed and thorough analysis of the present danger.
Second, it nicely coincides with a question my wife asked me this week (which I’ll paraphrase here as “So … what legal mechanisms may be employed to remove bad actors from elective public office?”)¹
And third, it’s a prompt for me to ask all of you for your thoughts.
There is cause for pessimism about voting rights in general (e.g., as the Texas House redistricting trial winds down, and in the face of institutionalized hostility towards the preservation of voting rights). But there is also cause for optimism (as civil rights advocacy groups renew their focus and energy in response to the urgency of this crisis, embedded in what I might dryly refer to as a target-rich environment for litigation).
¹With respect to my wife’s question (which was specifically about removing executive and legislative officers from the federal government), here’s the short answer – per Article II, Section 4 of the Constitution, the President may be removed from office following a trial of impeachment in the Senate, based on articles of impeachment passed by the House, or he may be suspended from the duties of office based on the procedures outlined in Section 4 of the Twenty-Fifth Amendment. Members of Congress may be expelled from office upon a two-thirds vote by their peers, per the second clause of Article I, Section 5.
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.
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)
Michael Li was the creator of the now-dormant go-to blog for Texas redistricting information (http://txredistricting.org/), but has moved on to bigger things at the Brennan Center for Justice at NYU School of Law. Now that the nation’s eyes turn once again towards Texas and our state’s sometimes appalling politics, Mr. Li has penned this excellent summary of the suit, at: http://www.brennancenter.org/blog/texas-redistricting-battle-begins.
And this is the sort of lawsuit that very much benefits from expert analysis, because Perez v. Perry has outlasted the miniscule attention span available in broadcast media. My favorite bit of unhelpful analysis was something I overheard on our local NPR station yesterday – a pundit suggested that no matter which way the court ruled, conservatives would count coup against the U.S. Department of Justice.
His reasoning went like this – if the judicial panel in San Antonio finds discriminatory intent behind the 2011 redistricting, that finding will prompt “bail-in” review of Texas voting procedures under Section 3(c) of the Voting Rights Act, which will then vindicate conservative arguments that the Voting Rights Act is mean and unfair to Texas. And if the judicial panel finds that the plaintiffs have not proven discriminatory intent, that will also vindicate conservative arguments that the Voting Rights Act is mean and unfair to Texas.
Ho-kay. That was 15 seconds of sound bite that (1) fluffed anti-Voting Rights Act weirdo egos; and (2) was otherwise bracingly free of any actually useful analysis. It would have been more helpful if the pundit had said, “if, and to the extent that race does get used as a proxy for political self-identification, are we as a society okay with discriminatory intent? That question is a central one to the resolution of this lawsuit.”
As things currently stand, it’s legally okay for the majority party to cement its dominance through partisan redistricting. But as a practical matter, partisan redistricting is racial redistricting. And racial redistricting as practiced by many jurisdictions is redistricting intended to neutralize minority participation in the democratic process.
For the past year or so (and really, for the past eight years (and really, really, for the past … um … many decades that I’ve been a voter (and really, really, REALLY, for at least as long as I’ve been intellectually aware of the political process))), I’ve struggled with the question, “why do we vote?” Why does anyone vote? Why don’t we all vote? What is it we achieve by voting?
I haven’t always been consistent. I’ve wavered between two poles, (one being, “to the extent we vote, or more formally, to the extent that the public franchise is extended to anyone, the act of voting is the inalienable fountainhead of sovereign rule. We vote in order to ratify the coercive distribution of limited resources among alternate uses.” The other pole is “to the extent we vote, or more formally, to the extent that the public franchise is extended to anyone, the act of voting is the inalienable fountainhead of sovereign choice. We vote in order to achieve the optimal distribution of limited resources among alternate uses.”)
Those two positions don’t seem very far apart, do they? But they are – they are as far apart as they can be.
I mean, ultimately those two formulations (as you parse them out) could be distinguished like this. Some people (mostly on the liberal side of the political spectrum, but not exclusively) say that to vote is to participate in community. It isn’t that the individual choices actually made by the voters are good or bad, or that voting is any more likely or less likely to get us to some sort of perfect outcome, but that whatever outcome we choose (even the stupidest, worst, most costly, or most cruel outcome) can’t be legitimized unless we’ve all gotten to voice our opinion of that outcome.
Other people (mostly on the conservative side of the political spectrum, but not exclusively) say that to vote is to participate in strategic decisionmaking. In order to get the best, least stupid, most optimal outcome, we have to endlessly tweak and fiddle with the voting process to ensure that the stupidest, worst, most inept or cruel decisionmakers don’t get to participate.
Thanks to an exchange with a smart, thoughtful political economist currently at the LBJ School of Public Affairs at U.T. Austin (this is a shout out to Eli Poupko (http://www.utexas.edu/lbj/phdstudents/eliezer-poupko), and best wishes on your pending article), I realized that I hadn’t thought critically enough about this very fundamental philosophical divide that runs like a canyon across the breadth of political discourse.
I was sort of an outlier in my thinking on this topic – I self-identify as being on the “
smart,” “ wise,” “ correct,” liberal side of most political questions, and instinctively, I wanted to tweak the voting process to diminish the impact of “ stupid,” “ foolish,” “ uneducated,” “ cruel,” “ dull-witted,” “ immoral,” “ fat-headed,” conservative voters.
But the source of better policy isn’t better voting. In one sense, there’s no such thing as better or worse voting, at least in regards to the ratification of democratic policy choice.
The source of better policy choice rests in creating a better electorate. And you don’t get a better electorate by exercising discriminatory choice with respect to who gets to vote. You get a better electorate by building a better society. And you build a better society through education.
As a postscript, you also don’t get a better electorate by preserving the artificial legal fiction that partisan competition justifies gerrymandering and voter discrimination, or that the Department of Justice or the Voting Rights Act is somehow unfair because it doesn’t foster discriminatory intent.
Per Section 521A.001 of the Texas Transportation Code, the Department of Public Safety will provide voter I.D. cards without charge upon application. However, these voter I.D. cards (which cannot be used to satisfy other statutory demands for identification) may only be issued at select DPS offices, and only to individuals who present sufficient legal documentation of their citizenship and identity.
Herein lies the rub. As “free” I.D. is presumably intended to accommodate the indigent, we may assume that the greater demand for these I.D. cards would be from those potential voters who don’t have much in the way of resources.
So how much would it cost to get a free Texas voter I.D.?
For the sake of argument, assume that the potential voter is an indigent patient of the Rusk State Hospital in Rusk, Texas. Such a voter is not representative of the Texas population, but shares some qualities with a group of Texas citizens who are particularly unlikely to participate in elections (namely, the institutionalized, the disabled, the indigent, and the elderly).
First, one must apply for a voter I.D. in person at a designated DPS office. As critics of the Texas voter I.D. law have pointed out, the number of available offices has declined, making the task of getting an I.D. more formidable (especially for people in rural areas). There is no drivers’ license office in Rusk, Texas – the closest office is on 506 East Pine Street in Jacksonville, Texas. But this isn’t too bad – the DPS office is only about 15 miles away from the hospital. Although there’s no public transportation to speak of, an ambulatory person without a car could walk from Rusk to Jacksonville in about four hours, by keeping to the shoulder of U.S. 69 going northwest from downtown Rusk (and keeping in mind that customers will be served in the order they arrive, and that the DPS office is open from 8:30 to 5:00 Monday through Friday).
Although Rusk State Hospital is a psychiatric hospital that is stereotyped as a prison hospital, it is also the primary mental health care provider in East Texas, and serves both captive inmates, involuntarily committed civilians, and the general population. Of course, confined patients could simply vote by mail from the hospital and avoid the bother of I.D. voting altogether, but it isn’t inconceivable that a transient patient might need to acquire a voter I.D. for in-person voting, despite being treated at the hospital.
In any case, our example will serve to identify the issues faced by any residents of Rusk who need a picture I.D. to vote, but who lack a driver’s license.
After getting to the DPS office and filling out an application for a voter I.D. certificate, one must provide documentation of U.S. citizenship using one of the following documents:
- U.S. passport book or card
- Birth certificate issued by a U.S. state, U.S. territory or District of Columbia
- For U.S. citizens born abroad—Certificate of Report of Birth (DS-1350 or FS-545) or Consular Report of Birth (FS-240) issued by the U.S. Department of State
- U.S. Certificate of Citizenship or Certificate of Naturalization (N-560, N-561, N-645, N-550, N-55G, N-570 or N-578)
- U.S. Department of Justice Immigration and Naturalization Service U.S. Citizen ID Card (Form I-197 or I-179)
Third, one must provide documentation of identity. Those with U.S. passports are well-set, given that the passport is a primary document proving both citizenship and identity. However, the other items in the above list are insufficient proof of identity, and must be paired with at least two of the following items:
- Social security card
Form W-2 or 1099 Driver license or ID card issued by another U.S. state, U.S. territory, the District of Columbia or Canadian province (unexpired or expired less than two years)* Texas driver license or ID card that has not been expired more than two years Temporary receipt for a Texas driver license or ID card
- School records* (e.g., report cards, photo ID cards)
- Military records (e.g., Form DD-214)
- Unexpired U.S. military dependent identification card
- Original or certified copy of marriage license or divorce decree (if the document is not in English, a certified translation must accompany it)
Voter registration card* Pilot license* Concealed handgun license* Professional license issued by a Texas state agency
- ID card issued by a government agency*
Consular document issued by a state or national government
- Texas Inmate ID card or similar form of ID issued by Texas Department of Criminal Justice
- Texas Department of Criminal Justice parole or mandatory release certificate
- Federal inmate identification card
- Federal parole or release certificate
- Medicare or Medicaid card
- Selective Service card
- Immunization records*
- Tribal membership card from federally-recognized tribe
- Certificate of Degree of Indian Blood
Unexpired foreign passport Unexpired insurance policy valid for the past two years (e.g., auto, home or life insurance) Current Texas vehicle registration or title Current Texas boat registration or title
- Veteran’s Identification Card from the U.S. Department of Veterans Affairs
- Hospital-issued birth record*
- NUMIDENT record from the Social Security Administration
- “NUMI-lite” letter from the Social Security Administration
The asterisked items must have been issued by some government-owned authority.
Some of the secondary documents that would prove identity are less likely to be possessed by an indigent person, given that these documents are dependent on ownership of personalty or realty. Therefore, I’ve drawn a line through those documents. Other items would more likely be in the possession of a non-U.S. citizen, and can be excluded as well. I won’t presume whether or not the voter has some criminal record or military service, and forms of identification available to former inmates or veterans could exist.
The two supporting documents must come from two different agencies; thus, one could not use both a NUMIDENT record and a NUMI-lite letter from the Social Security Administration.
Anyway, how much might it cost to get at least enough documents to get a free voter I.D. card?
U.S. Passport and Card – The passport is worth more than gold, as evidenced by the $165 ($140 application fee plus $25 execution fee) price tag. Expedited service is another $60, and these charges do not include the cost of the photo. Some savings can be realized by just applying for a passport card (instead of a passport book) which is just $55. Keep in mind that the passport application process will also require certain documents to prove citizenship and identity, and these may require an additional charge. If the applicant has previously had an expired passport, a $150 search fee can be paid to confirm that prior evidence of citizenship.
Certified birth certificate – If from a U.S. jurisdiction, it appears that the cost ranges from around $12 to $20, although there is no uniform rate; the fees are set by the jurisdiction issuing the certificate. Consular reports of live birth issued by U.S. embassies currently cost $50, which is the uniform fee for any vital record from the U.S. Consular Service.
A replacement certificate of naturalization costs $345, per information provided by the U.S. Customs and Immigration Service (see form N-565).
U.S. Citizen I.D. card – The so-called Form I-197 I.D. card is no longer issued, so while it is still useable as proof of citizenship, there is no mechanism for gaining or replacing such a document.
Assume for the sake of the example that a potential voter does not have access to a form “proving” citizenship. If that is the case, the applicant will be out an additional amount of money, regardless of the availability of other secondary documents proving identity. If the applicant is lucky, he or she was born in circumstances that led to the creation of a birth certificate in some U.S. jurisdiction, in which case the free voter I.D. will cost around $10 to $20, plus the opportunity cost associated with the time and effort required to request and receive that document.
If the voter is unlucky (as is the case for anyone whose vital records were destroyed in a fire, as in the case of my grandmother, or in many circumstances of midwife-assisted birth in Texas or California, where filing of vital records tended to be lax), then the cost will soar to somewhere between $55 and $165 or more for a passport. If the person was naturalized but lacks documentary proof, the cost is going to be around $345. For more intractable documentation problems, the costs will be much higher, and may require court proceedings to settle questions of identity and citizenship.
How many Texans are disenfranchised by picture I.D. requirements? The best guess (see the 2006 study by the Brennan Center for Justice, “Citizens Without Proof”, and related discussions of that study.) is around 11% of the voting-age population. The percentage of poor adults without sufficient documentation is likely to be higher, as is likely also the case with lower income voters and voting age members of racial and language minorities.
Given that picture I.D. requirements impose a financial burden on voters, those requirements deserve the same opprobrium as is aimed at poll taxes and literacy tests; such burdens effectively place a price tag on citizenship. But there are choices that a legislature can make to transform a bad voter I.D. law into a somewhat less bad law. One solution is to include a “no-fault” affidavit of inability to pay costs that completely substitutes for any photo i.d. requirement.
Such a measure is still objectionable on the grounds that it stigmatizes the indigent. But at least it would allow those individuals a chance to vote. We can already see what happens to the rights of the most needy when they lack any representation at all.