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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.
Today I got a call from a Houston-area radio journalist asking questions about how Texas makes it harder for homeless people to vote. On the one hand, the timing of the question was a little late (what with the registration deadline already having passed for the statewide and local November 3, 2015 elections here in Texas). On the other hand, the question was timely, given that a five-month lead-in to the early February deadline to register to vote for the March 2016 primary elections probably gives homeless voters the time they need to organize their identification paperwork and fight their legal and bureaucratic battles so that they’ll be able to cast a ballot next year.
If ever there was a class of voters that was easy to disenfranchise, it would have to be the homeless – even before we had voter I.D. laws, only an estimated 10% of the eligible voting-age homeless population participated in elections. (This statistic is widely cited, and consistent with statements made by Neil Donovan, the executive director of the National Coalition for the Homeless. See, e.g., http://www.pbs.org/newshour/rundown/forgotten-voters-dc-volunteers-work-to-register-the-homeless/.)
Why are the turnout numbers so small for the homeless? Let me turn that question around. Why wouldn’t we expect the number of homeless people successfully engaging in the political process to be a tiny minority of the homeless population? After all, our government has raised enormous barriers to discourage homeless participation in politics, with ballot limitation policies that often appear to be motivated more by petty cruelty or simple mean-spiritedness than by any legitimate administrative concerns; is it any wonder that homeless have gotten the message that they are not wanted at the polls?
That’s not to say that there aren’t organizations making an effort to counter this powerfully negative message of exclusion – there are regional groups like Homeless Not Powerless (which was active in early 2014 and centered around urban centers in Alabama and North Carolina), as well as national groups like the aforementioned National Coalition for the Homeless (who produced a .pdf brochure in 2012 urging the homeless to register to vote and go to the polls).
I would hope that homeless advocates would similarly work to encourage voting by the homeless in 2016, but nobody doubts that the Texas photo i.d. law makes that a lot harder.
DOESN’T EVERYBODY HAVE A DRIVER’S LICENSE ALREADY?
Uh … no. Could anybody still say this sort of thing with a straight face? Well, yes – at last weekend’s Texas Tribune Festival here in Austin, State Representative Jason Villalba (R) (Dallas) said that a photo I.D. requirement was “no big,” because everybody already has a license to do things like rent cars and book airline tickets.
Ah, the power of anecdotal experience. Ah, the failure of imagination. Since a Texas lawmaker has a driver’s license, everybody must have one. You know, except for the 600,000 eligible already-registered voters who lack such a thing.
Seriously, does Representative Villalba think that the whole development of evidence and discovery phase of a contested civil rights trial just takes place in an ’80s movie montage? Has it somehow escaped the understanding of our state lawmakers that when lawyers clash in a courtroom setting, spending huge sums of money on depositions, expert witnesses, and intensive documentary analysis and research, that the resulting mountains of evidence are somehow just … irrelevant to their own fantasies about how the other half lives? It isn’t some made-up statistic – the Texas Secretary of State’s own records confirm that around 600,000 registered voters lack sufficient i.d. to vote. A much larger number of non-registered voting-age citizens also lack the documentation required to cast a ballot.
OKAY, SO NOT EVERYONE HAS A DRIVER’S LICENSE. BUT … I MEAN, COULDN’T THEY ALL GET DRIVERS’ LICENSES?
With unlimited resources, time and money, problems like a lack of supporting documentation magically vanish for eligible voting-age Texans. Except … people don’t have unlimited resources, time and money. That’s sort-of the problem, isn’t it?
To be fair, the State of Texas makes it possible for people without drivers’ licenses to get specialized picture I.D.s to be used for the narrow purpose of voting. And these I.D.s are at least legally issued free of charge to anyone who can cough up sufficient documentary proof of their identity – such as a birth certificate or a passport.
Here’s the kicker (as I have mentioned before, more than once) – not everyone has a birth certificate or a passport. And getting a birth certificate or a passport isn’t a cost-free transaction.
A little digging uncovered some private charitable groups that help homeless people get I.D. forms, and subsidize the cost of those forms – there’s a coalition of Presbyterian churches in downtown Houston (Main Street Ministries) that offers a homeless I.D. workshop on Tuesdays and Thursdays from 9:00 to 11:30 a.m., excluding holidays. But … that service is limited in scope, and is only available to homeless people who have a valid referral letter from an approved referring agency.
To be fair, I’ll grant you that “some limited charitable resources for getting a picture I.D.” isn’t the same thing as “no resources for getting a picture I.D.” It would be inaccurate to say that there are no avenues by which an impoverished homeless person could get the materials necessary to register to vote and cast a ballot.
But some things are just inherently harder to do when you don’t have a fixed residence address. For instance, there’s the problem of providing a residence for purposes of identifying a voting precinct.
Here in Austin, a homeless person could successfully complete a voter registration application by filling out the form and listing a physical geographic location (“under the overpass at IH35 and 12th Street”) as the residence. For a mailing address (in order to get the voter registration certificate), a person could then list “General Delivery” along with the zip code for the main post office.
Problem solved, right? Except … a person must provide two forms of i.d. and a valid residence address in order to receive mail from the General Delivery window at a regional mail distribution center, per the USPS Domestic Mail Manual. Except … there’s an exception to this requirement in the discretion of the local postmaster if a transient person is “known to the postmaster” and sufficiently well-identified.
Subjective, mushy, exceptions to general rules create certain fairness problems. A nice local postmaster might go to great lengths to assist homeless mail clients with securing no-cost P.O. boxes and long-term General Delivery accounts. Or not – when Seattle homeless sued the Postal Service in the late 1990s for failing to provide mail delivery, they were more-or-less poured out of court with an appellate decision that upheld the Postal Service’s broad discretion to chose how much or how little it needed to do to in terms of providing mail services to the homeless.
So, yay to you, homeless person, if you happen to live in an area where you can get mail delivery. But if you live somewhere where you can’t get mail delivery (say, if transportation issues and a lack of i.d. make it impossible for you to sign up for General Delivery), the Postal Service isn’t obligated as a matter of law to help you out.
Homeless people get to experience annoying Catch-22s involving ignorant voter registrars who insist on the primacy of a street address, wherein the homeless person submits a voter registration application, but has the application rejected because it doesn’t list a place that the voter registrar believes is a “real residence.”
WELL, OKAY. MAYBE HOMELESS PEOPLE HAVE TO WORK A LITTLE HARDER TO REGISTER TO VOTE. BUT VOTING IS IMPORTANT – IF THEY REALLY WANT TO VOTE, TRANSIENTS SHOULD BE WILLING TO PUT UP WITH A LITTLE PAIN AND FRUSTRATION
Um … okay. This is the sort of absentminded cruelty that leads to civil rights violations, because it belies a popular and common attitude – that the homeless are morally inferior and undeserving of any particular care or consideration when it comes to voting.
If that’s how one feels, why not apply that philosophy to other groups as well. Why do we coddle people who are disabled on Election Day? Why have we had a law on the books for the last 110 years allowing people in the extremis of terrible illness the right to vote from their sick beds on Election Day? And why do we coddle people who have just had a death in the family and been called away by the need to bury a loved one?
For that matter, why bother accommodating the absentee voting of people who are actually under fire in a foreign war zone? Shouldn’t we expect soldiers to just tough it out? I mean, if voting is so important and all, why should we make it easier for anyone to vote? Why not just have the entire electorate crawl through broken glass to get to the polling place? I mean, if democracy is so precious and all, shouldn’t we all be willing to suffer indignities, costs, and hardships that are thrown up as roadblocks to our vote?
Well, no. obviously. First of all, most of us aren’t heartless psychopaths who take pleasure from the pain of other human beings. And secondly, most of us understand how the whole “fairness” thing works, because we occasionally benefit from the kindness of others, and can empathize with people who find themselves in need of kindness.
I mean, it would be one thing if we all faced exactly the same burdens on our ability to cast a ballot – then one could at least argue that the pain and cost of voting was distributed evenly among all voters. But that isn’t the case – some people have a significantly harder time casting a ballot than others. And to the extent that some people face greater hurdles to participation means that those people are disproportionately less likely to be able to participate as voters in an election.
We would only exclude those people from participation (and preserve the exclusionary barriers limiting participation in the organs of self-government) if we really didn’t want those people to participate. And that way lies the path to insurrection, rebellion, and death.
The homeless are entitled to participate in elections with the same ease and transparency of process as any of the rest of us, whether we are renters, homeowners, fabulously wealthy, desperately poor, or living under a bridge. And until the homeless are able to participate in elections with the same ease and lack of constant scrutiny and suspicion. we cannot say that we are free citizens of a democracy.
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.
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?
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 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.”
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)
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.
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.
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.”
As a number of news organizations have noted, Justice Ginsburg’s dissent in Veasey v. Perry contained a minor factual error – originally, the dissent contained a sentence stating that Texas did not accept veteran’s I.D.s as acceptable forms of photo I.D. in the polling place.
In fact, this statement was true when S.B. 14 was signed into law in 2011 – veteran’s i.d.s were not acceptable forms of identification, specifically because they were not subject to regular renewal, and were not regarded as the equivalent of active military i.d.s.
Really, the statement that the law doesn’t permit the use of veteran’s I.D.s is still true, or at least would be true, but for a clever bit of sophistic maneuvering by the State.
Nothing in the language of the law has changed between 2011 and now, and so Justice Ginsburg’s mistake is entirely understandable. In fact, to have not spoken in error, she would have had to know about the unwritten internal politics surrounding the implementation of the voter I.D. law.
When Section 63.0101 of the Texas Election Code was amended to impose the requirement for photo I.D., subsection (2) of that section defined one form of acceptable I.D. as being “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.”
Media sources and veterans groups castigated the law for what what veterans groups saw as a betrayal of their constituency. The outrage caught Governor Perry and the bill drafters by surprise, and came at an awkward time for Governor Perry (who was at that time campaigning for the Republican nomination in the 2012 Presidential election, and who was touting his support for a strong military).
The proponents and drafters of the Texas picture I.D. law had been so eager to disenfranchise minorities, the poor, the disabled, the elderly, and students, etc., that they had rushed headlong into accidentally disenfranchising a large, politically active, and vocal voting bloc with symbolic importance for conservatives.
The political reaction was swift. After delicate consultations (the rumblings of which are lightly hinted at within an October 17, 2013 memo issued by Keith Ingram, which among other things, urges county election officials to “discard” earlier materials regarding voter I.D.), the Secretary of State determined that the proper interpretation of the law was that veteran’s I.D.s were acceptable because they didn’t expire (glossing over the fact that technically, veteran’s I.D.s are not military I.D.s, and veterans are not members of the military). But things were briefly touch and go between groups touting veteran’s rights and the State of Texas.
Of course, what the episode illustrated in a more general way was the fundamental hypocrisy of the 2011 law – that the law was subject to ad hoc changes in its application and textual interpretation to benefit one group of voters over another, if those voters happened to be “the right kind of voters.”
This is shameful. The U.S. Supreme Court (usually such a pro-law and order institution) has ruled that the risk of “voter confusion”justifies breaking the law.