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Democracy in Crisis: Rick Hasen’s Editorial Is A Must-Read

“Don’t Let Our Democracy Collapse”

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.

 

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Implementing Photo I.D. Requirements In Texas Elections — An Oral History

Reporter Jessica Huseman of ProPublica spent the last six months working on a huge, complicated feature story, and the fruit of her efforts was posted Tuesday, May 2, on the Texas Tribune and ProPublica sites.

The lengthy story is excellent; it summarizes and clarifies the complicated motives and mechanisms by which lawmakers more-or-less knowingly painted themselves into the corner of having to pass the 2011 photo I.D. restrictions.

That is, in order to count coup against moderate Republicans and the Democratic party rump in the Texas Legislature, state officials pushed the adoption of a restriction on voting that was not only deliberately provocative, but also illegal.

Subsequently, the State lacked the capacity, desire, or ability to allocate resources to mitigate the damage caused by the ill-conceived new law, compounding its … uh … I guess you would say, “bad optics” when attempting to mount a legal defense of the voter I.D. law in federal court.

But read the story — it’s rich and telling, and deserves close study.

P. S. Disclosure: Ms. Huseman interviewed me for the story.

Three Little Words: I Was Right

My wife and I joke that the three most beautiful words in the English language are either “you were right,” or maybe, “I was wrong.”

Either way, here’s a link to the New York Times story on the latest court ruling relating to the current photo I.D. law in Texas. Here’s the gist: After a remand from the Fifth Circuit, the district court handling Veasey v. Perry has again struck down Texas’ 2011 photo i.d. law as intentionally racially discriminatory. Rick Hasen has more.

Mini roundup of Texas election law stories

1. Voter Registration — Status of TCRP Suit To Enforce Federal Motor Voter Laws

We’re approaching the one-year anniversary of the Texas Civil Rights Project’s lawsuit against the Texas Department of Public Safety, and just to refresh you, here’s what’s going on:

  • Texas provides a website portal for the online renewal of drivers’ licenses, which should in theory also allow voters to easily update their voter registration.
  • BUT … for voters who have moved from one Texas county to another, online renewal carries pitfalls, including unexpected “gotcha” cancellations of existing voter registration status, and confusing or misleading information about how voter registration renewal works.
  • Thousands of Texas voters have unwittingly had their voter registrations cancelled when they attempted to update their status online.
  • Recently, the State of Texas was sanctioned by a federal district court for unconscionable delays in responding to the plaintiff’s discovery requests.
  • The trial is scheduled to take place this Ssummer.

2. Department of Justice Shifts to the State’s Side on Texas Voter ID Suit

  • In a February 28 interview with the Texas Standard, (link to audio here: http://www.texasstandard.org/stories/justice-department-drops-opposition-to-texas-voter-id-law), election law expert Richard Hasen discussed the decision by the U.S. Department of Justice to end its legal opposition to the Texas Voter I.D. law.
  • With Jeff Sessions in charge at the Department of Justice, and with anticipated conservative justices appointed to the U.S. Supreme Court, the position of the plaintiffs is now more precarious.
  • This follow-up story from Slate covered the most recent trial court hearing; the plaintiffs described the judge as skeptical of the State’s argument.

3. Regional Briefs

  • Voter assistance or improper electioneering in Robstown, Texas? – KRISTV (the NBC affiliate TV station in Corpus Christi) has this interesting story about a candidate who was elected to a local utility district seat in November after assisting voters with their ballots.
    • In response to the argument that the candidate’s presence in the polling place constituted electioneering, the city manager pointed out that voters who are unable to read or mark a ballot are legally permitted to ask for and receive polling place assistance from a candidate.
  • Errors in 2016 election likely the result of voter confusion, not intentional fraud –
    • This story from Mysanantonio.com expresses the position of Bexar County election officials that to the extent voters with photo I.D.s may have completed affidavits alleging a lack of sufficient I.D. prior to voting, the erroneous use of the affidavits was likely a consequence of the confusing shifts in state voter I.D. procedures that were rolled out just prior to the November 2016 election, and not reflective of a pattern of intentional voter fraud.

Texas election news: Pasadena, Texas, required to seek preclearance for any changes in voting or election procedure

If you haven’t already read this excellent story from the New York Times about the City of Pasadena, Texas, check it out, as it’s necessary for context. Also, take a look at Professor Rick Hasen’s analysis of the initial court ruling and his comments on the subsequent order regarding enforcement of the initial ruling.

Other useful context: Texas has a long history of discriminatory voting laws.

***

Why this matters: this is the first jurisdiction since the Shelby County v. Holder decision that has had preclearance requirements imposed on it by a federal court.

Briefly, and for those of you who are new to this story, here are the highlights:  In 2013, the U.S. Supreme Court issued the above-mentioned decision that cut the heart out of the Voting Rights Act, effectively eliminating the historical process whereby the U.S. Department of Justice reviewed changes in voting procedures adopted by certain jurisdictions.

Emboldened by this Supreme Court decision, the mayor of the City of Pasadena, Texas, then pushed a new city election strategy, allegedly (per the NYT story above) to limit the power of Hispanic voters in municipal elections.

Pasadena, Texas, has a large Hispanic population (about 62.2% of the roughly 154,000 people who live there), but its city government has been dominated by whites, and the city has historically been racially polarized.

By replacing single-member districts with at-large districts, the new city election plan diluted minority voting strength and reduced the likelihood that Hispanic voters could get proportionate representation on the city council.

The city was sued, and now, three years later, a federal court has ruled that the city-altered method for choosing its city council members was motivated by “racial animus,” the finding that (under Section 3(c) of the Voting Rights Act) justified court-ordered preclearance for local laws affecting elections .

As a consequence of the federal court’s finding that the City of Pasadena’s method for electing city council members was intended to limit the ability of Hispanic voters to influence city policy, the city’s racially motivated redistricting plan has been struck down.

Importantly, the city has been ordered to submit future changes in city redistricting and voting procedures to the Voting Section of the Civil Rights Division at the U.S. Department of Justice for review.

The story is particularly timely and relevant as the future of voting rights enforcement in our country hangs in the balance.

As noted in multiple news stories, Jeff Sessions—the current nominee for the position of U.S. Attorney General—has had what can best be described as a “chequered” (or “checkered,” for us Americans) past with respect to his opposition to civil rights generally, has been openly hostile towards the Voting Rights Act for his entire legal career, and is now poised to helm the U.S. Department of Justice.

In the case of Mr. Sessions’ pending appointment to the position as the highest attorney in the federal government, the clichéd phrase, “fox in the henhouse” doesn’t quite sum up the potential damage to civil rights enforcement.

Jeff Sessions as Attorney General is more, “Tyson Industries announces appointment of ravenous vulpine predator to be responsible for overseeing all domestic chicken production in U.S.”

Texas Voter ID Troubles Continue; District Court Orders Judicial Oversight of Texas Voter Education – And the State Doubles Down By Disparaging the Motives Of Voters Who Claim Not To Have Photo I.D.

I. APPARENTLY, THE STATE CAN SCRUTINIZE VOTERS WHO SUBMIT DECLARATIONS OF REASONABLE IMPEDIMENT IN LIEU OF PHOTO ID

On September 22, 2016, the Texas House of Representatives Elections Committee conducted a routine interim hearing on various technical matters relating to election administration. For three and a half hours the committee members and witnesses discussed proposed legislative tweaks to the petition signature process, to municipal elections, to obligation bonds and taxes, and so on. You can watch the whole hearing if that’s your thing, but for my money the really interesting stuff doesn’t come up until the very end of the hearing.

As the hearing wrapped up, State Representative Celia Israel asked an official from the Texas Secretary of State’s office about a court order that had been issued two days prior to the committee hearing. In particular, Representative Israel was curious to find out what the State was doing to educate voters about I.D. requirements for the November 8, 2016, election.

In response to the questionsDirector of Elections Keith Ingram explained that the State had incorporated the text of the court’s most recent directive into the website and upcoming print and media advertising; he specified that voters who “do not possess [the statutorily mandated forms of photo I.D.] and cannot reasonably obtain it,” could cast a regular ballot by completing a “Declaration of Reasonable Impediment,” if they also supplied alternate forms of documentary evidence of their identity.

Representative Mike Schofield then took the discussion in a new direction (starting at the 3 hour, 36 minute mark), after asking if the State could track information about whether the Declarations were submitted by people who actually have I.D.:

What I don’t want to see is a gross number, and everybody acts as if those people don’t have I.D…. If you pretend you don’t have it, and use one of these declarations, that’s illegal, isn’t it?

In response to the question, Mr. Ingram clarified that voters entitled to use the Declaration would be those who had either never been issued one of the six forms of photo I.D. listed under the law, or those whose previously issued I.D.s had been lost or destroyed, and who had a reasonable impediment to replacing the missing I.D.

Representative Israel raised a hypothetical situation (described starting at 3 hours 45 minutes) in which a voter’s “reasonable impediment” is that the voter is voting at a polling place on one end of town, but left her photo I.D. at home, at the other end of town.

In that circumstance, Mr. Ingram explained that assuming that the voter filled out the “Declaration” and wrote down that the reasonable impediment was “left my I.D. at home,” the election worker would have to take the declaration at face value and allow the voter to cast a ballot.

Representative Schofield seemed incredulous, asking, “Is that … is that correct? … You’re going to let them vote with a ‘Reasonable Impediment?'”

The Director of Elections responded:

The poll worker cannot challenge the ‘Reasonable Impediment’ asserted by the voter. …. But if that’s the reasonable impediment, I think the voter is at risk, because they’re not following the law. But that’s not for the poll worker to decide. [Emphasis added by me.]

Committee vice-chair Craig Goldman then asked, “But, how does that get challenged, and then how is their vote null and void?”

The Director of Elections explained:

The vote will never be null and void. It’ll get challenged in an election contest, if it’s a close election. And obviously these things [the Declarations of Reasonable Impediment] will be available for folks to give to their district attorneys to follow up on. [Emphasis added by me.]

Representative Schofield pressed the issue as the hearing entered its final minutes (at the 3 hour 46 minute mark):

I realize we’re going to have a lot of illegal votes and a lot of fraudulent votes. That’s why we have voter I.D. My concern is that there are going to be a lot of people trying to thwart the [voter I.D.] law who have valid drivers’ licenses; who have passports; and are going to assert these declarations. Their votes may count in this election, but I want to make sure that when we go back to court, we’re not saying ‘oh, there’s this huge number of people that filed these declarations.’ I want to drill down and find out which one of ’em [declarations] were bogus. [Emphasis added by me.]

The Director of Elections responded, “And I’ll think you’ll be able to tell easily.” He then went on describe how one of the Declarations of Reasonable Impediment that had already been used in an off-season tax ratification election indicated that one voter had written that the “reasonable impediment” was “fascist law.”

The committee chair said: “Fascist law? They wrote that?”

***

What’s troubling about the exchange (aside from Representative Schofield’s counterfactual and inflammatory assertion that there’s going to be a lot of “fraudulent votes” in this election), and what should be especially troubling to the plaintiffs in the voter I.D. lawsuit, is the implication—encouraged both by Representative Schofield’s assertion that “we’re going to have a lot of illegal votes,” and by the response from the Director of Elections that voters who use the Declaration can be tracked, and possibly referred to local district attorneys for prosecution for illegal voting—that voting without an approved photo I.D. is automatically suspect.

So … why is this suggestion of potential criminal prosecution troubling?

Because it is not a stretch to imagine that statements like this could have a chilling effect — dissuading eligible, qualified voters without approved photo I.D. from voting. In other words, threatening to investigate voters who file a Reasonable Impediment Declaration could end up hurting the very group of voters that the August 10, 2016, court order was intended to help.

Think I’m exaggerating about “threatening to investigate”?

On September 9, 2016, Rick Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine, posted a story on his Election Law Blog about the motion for enforcement of the August 10 court order filed by the private (non-Department of Justice) plaintiffs in Veasey v. Perry. These plaintiffs were reacting to this August 26, 2016, news story (as quoted in the private plaintiff’s motion):

[Harris County Clerk Stan] Stanart says he will investigate everyone who signs that form to assure they are not lying. Whether anything happens, that’s up to the [Harris County District Attorney’s Office]. But after the votes are counted and the election ends, Stanart said his office will be checking to see whether a person who signed the sworn statement has a Texas Department of Public Safety-issued ID through the DPS database.” Meagan Flynn, Harris County Clerk Will Vet Voters Who Claim to Lack Photo ID, HOUSTON PRESS, Aug. 26, 2016.

So to recap: As of late August in a presidential election year, the chief election official in Harris County, the most heavily populated county in Texas, was quoted as intending to investigate voters who claim they lack photo I.D.s.

That threat of punitive or retributive investigation prompted the federal district court in Corpus Christi to issue on September 20 a legal order, in which the court told the State to clarify and make explicit that voters who reasonably lacked photo I.D. were legally entitled to an alternate method of qualifying for a regular ballot.

But then in the hearing on September 22, just two days after the court order, the State was still discussing the option of criminal investigations and prosecutions of voters without photo I.D.s, in order to satisfy a Republican state legislator’s concerns about the effective enforcement of the State’s photo I.D. law.

And the statements of the Director of Elections reassuring Representative Schofield that voters who vote without photo I.D. can be tracked and investigated echoed the statements made in August by Harris County Clerk Stan Stanart.

II. BACKGROUND — WHAT’S ALL THIS ABOUT “REASONABLE IMPEDIMENT”?

After the conservative Fifth Circuit appellate bench ruled that the State of Texas had enacted a discriminatory voter I.D. law, the federal district court in Corpus Christi that has been handling the photo I.D. suit (Veasey v. Perry) issued a judicial order on August 10, 2016, to remedy the immediate effects of the discriminatory law.

The plaintiffs in the ongoing lawsuit relating to voter I.D. then filed a motion informing the district court judge that the state’s officials were misrepresenting the court’s directive. (see, e.g., the Texas Tribune‘s September 7, 2016, story).

The August 10 judicial order had provided that voters who could not “reasonably” obtain an acceptable form of photo I.D. could substitute the use of some other forms of identification if they completed a “declaration of reasonable impediment.” The Elections Division at the Texas Secretary of State’s Office did not include the word “reasonably” in training materials, the agency’s website, and voter information posters, leaving the impression that the only voters who could access alternative forms of identification were those who were absolutely unable to get the photo I.D.

Omitting the word “reasonably,” which had been specifically included in the district court’s August 10 judicial directive, may seem like a minor editorial alteration. But in making that omission, the State gave the plaintiffs the impression that State officials were dragging their feet in response to the August 10 court order.

The Department of Justice summarized the problem in its September 6, 2016, motion to enforce the August 10, 2016, remedial order as follows:

On August 10, 2016, this Court entered an Order directing the State of Texas, Secretary
of State Carlos Cascos, and other officials to implement a set of directives for the November 8, 2016 election. Veasey v. Perry, No. 2:13-cv-193, Order Regarding Agreed Interim Plan for Elections (“Remedial Order”) (S.D. Tex. Aug. 10, 2016) (ECF No. 895). The Court ordered:
 
Commencing with any elections held after the entry of this Order and until further order of the Court, Defendants shall continue to educate voters in subsequent elections concerning both voter identification requirements and the opportunity for voters who do not possess SB 14 ID and cannot reasonably obtain it to cast a regular ballot. (Emphasis added.)
 
In other words, the State of Texas was supposed to tell voters about the photo I.D. requirements and then also tell voters that if they couldn’t get photo I.D.s, the voters could execute affidavits in lieu of obtaining those photo I.D.s (because, remember — the Fifth Circuit didn’t cleanly strike down the photo I.D. law, but found that the law as implemented was having a discriminatory effect).
In its motion, the Department of Justice then described what the State was actually doing:
 
Rather than educating voters and poll officials about opportunities to “cast a regular ballot” for those who “do not possess SB 14 ID and cannot reasonably obtain it,” the State has recast that language to limit the opportunity to cast a regular ballot solely to those voters who present SB 14 ID or who “have not obtained” and “cannot obtain” SB 14 ID. That standard is incorrect and far harsher than the Court-ordered standard it would displace. By recasting the Court’s language, Texas has narrowed dramatically the scope of voters protected by the Court’s Order. Moreover, the standard the State’s training and educational materials currently describe has already been rejected by this Court and the Fifth Circuit. At this critical stage, such materials should maximize accuracy and minimize confusion. Texas’s materials do neither.
 

The District Court responded as follows (from the September 20, 2016, court order):

ORDERED that the State of Texas shall provide to counsel for all Plaintiffs scripts
and copy for documents and advertisements that have not yet been published for review and objection prior to publication; [Emphasis added by me].
 
Which, okay.
 
That’s a little embarrassing for the State, what with the judge having to say, “Texas, you now have to submit anything you say about voter I.D. requirements to your opponents in this lawsuit so that they can review and approve your message before it gets broadcast.”
 
The court order continues:
 
ORDERED that the State of Texas shall edit digital materials on its website
page(s) that address voting rights and procedures, including titles or headlines and FAQs to reflect that voters who “do not possess an acceptable form of photo identification and cannot obtain one due to a reasonable impediment” may vote after signing the Reasonable Impediment Declaration;
 
ORDERED that all materials related to the education of voters, poll workers, and
election officials that have not yet been published shall reflect the language of the Court’s prior Order (D.E. 895).
 
III. SO, UH, DOES TEXAS NEED TO REINSTATE INTENSIVE FEDERAL OVERSIGHT AND REVIEW OF ITS ELECTION PROCEDURES?
 
One thing that’s interesting about the September 22, 2016, Texas legislature Elections Committee meeting is that the questions being asked by Representatives Schofield and Goldman serve as a kind of window into the State’s regulatory zeitgeist regarding voting.
At the risk of being reductive, from their statements quoted above, it appears as if these Republican members of the Elections Committee perceive some votes as potentially “bogus” for lack of sufficient proof—in Texas today, a current driver’s license or one of the other 5 forms of acceptable ID—of some voters’ legal qualification to participate as voters in the election.
IV. SO WHY IS IT A PROBLEM IF THE STATE TREATS VOTERS WITHOUT (APPROVED) PHOTO ID AS BEING DIFFERENT FROM VOTERS WITH (APPROVED) PHOTO ID? I MEAN, THEY ARE DIFFERENT, RIGHT? THEY DON’T HAVE PHOTO ID!
 
The problem with the State’s photo ID law is that it discriminates on the basis of race, but not overtly.
If the State had drafted a law explicitly excluding racial minorities from participation in elections, the discrimination would be obvious. Instead, the State created a photo I.D. law that had a discriminatory effect, in which access or lack of access to certain forms of proof of identification were imperfect and blunt proxies for the disproportionate exclusion of otherwise eligible minority voters from the election process.
 
Whether the discriminatory effect of the State’s photo ID law was intentional is a central question of the federal litigation that arose out of the law’s passage. Either (as the State contends) the photo I.D. requirements “accidentally” created a racially discriminatory voting procedure, or (as the plaintiffs in Veasey v. Perry contend) the State enacted an intentionally discriminatory law.
 
If state legislators and election officials feel comfortable subdividing and characterizing voters into the acceptable and the bogus, that institutional bias reinforces at least one of the arguments made by the plaintiffs in the voter I.D. case — that the State’s treatment of voters is motivated by racial animus. In other words, that the limitations imposed on those voters who do not possess the approved photo ID are motivated by the fact that those voters are disproportionately members of racial and ethnic voting minorities.
And if that’s the case, then one option for the court is to rule that remediation of this racial animus must come through a reapplied preclearance review process — through a so-called “opt-in” of federal oversight of Texas election procedures under Section 3 of the Voting Rights Act.
“Joe,” you might ask, “why are you sticking up for voters who may be untruthful when they fill out their Declarations of Reasonable Impediment?”
A state official who expresses concern about the validity of such a declaration isn’t saying anything about race, right? They just want to enforce honesty. What’s wrong with wanting to enforce honesty? Upholding honesty in the voting process isn’t racist. Right?
 
And that’s true. Honesty and truthfulness are to be encouraged in voting. But the members of the House Elections Committee already know that roughly 600,000 qualified eligible registered voters in Texas lack the legally prescribed forms of photo I.D., and that these 600,000 registered voters are disproportionately identified as being in legally protected classes of minorities. To then presume and assert the argument that these voters may falsely swear about their lack of ID in order to perpetrate election fraud is therefore logically no different from presuming and asserting that a known racially distinct and identifiable group of legally protected registered minority voters may cast “bogus” votes, and that they should be investigated accordingly if they do dare to vote.
 ***
From 1975 until 2013, the State and its political subdivisions were subject to federal regulatory preclearance of changes in voting procedures and laws, per Section 5 of the Voting Rights Act of 1965. That process of preclearance (either performed administratively by the U.S. Department of Justice, or judicially through federal district court review) had the positive effect of ensuring that potentially damaging and corrosive limitations on voting rights would be reviewed and blocked from taking effect. If Texas were to be brought back under external federal review, our rights as voters would be strengthened thereby. See: https://www.facingsouth.org/2013/08/in-denial-about-its-racism-texas-fights-preclearan.html
***
Postscript: If you’re new to the Texas Voter ID coverage, or want a refresher, the Texas Tribune provides an excellent and apparently regularly updated “Tribpedia” collection of articles on the Texas Voter ID law.
 
For this post, (as I often have before) I have relied heavily on the resources provided by the Moritz College of Law at Ohio State University (Election Law@Moritz), by Rick Hasen’s excellent Election Law Blog, and by the public records and materials provided by the Texas Legislature Online.

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.