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One particular piece of work within this ramshackle edifice of voter suppression and general discouragement of the democratic process is Section 61.033 of the Election Code, which states that in order to serve as an interpreter for a voter who requires language assistance, “a person must be a registered voter of the county in which the voter needing the interpreter resides.”
The law, such as it is, has a long pedigree stretching back to 1918, (Act of March 23, 1918, 35th Leg., 4th C.S. Ch. 30 (H.B. 104), although a requirement that election officials could only communicate via English in the polling place was added by the Act of March 13, 1919, 36th Leg. Ch. 55 (S.B. 244), 1919 Tex. Gen. Laws p. 94), The 1919 law reflected a longstanding nativist fear (pumped up by anti-German sentiment after World War One) that some language other than English might intrude into the polling place; that fear is still reflected in Section 61.031(a) of the Election Code, which more or less tracks the xenophobia of the old 1919 law.
After the passage of the Voting Rights Act, the state law was softened to permit language assistance at the same time that multilingual ballots were provided.
But … while Section 208 of the Voting Rights Act provides that voters should be able to make use of language assistance of their own choosing, the state law still exhibits a weird reluctance to help voters out by imposing that pesky have-to-be-registered-to-vote-in-the-same-county-as-the-voter requirement on interpreters.
That restriction found in the state law was never defensible (given that it directly contradicts federal law), but it’s interesting that it took so long for a group of plaintiffs to find a test case to knock it down.
But … better late than never. On August 12, a federal district court in the Austin division of the Western District of Texas granted a motion for summary judgment on behalf of a group of plaintiffs against the State of Texas, and enjoined the State against enforcement of Section 61.033 of the Texas Election Code. NBC News covers the story here: “Federal Judge Strikes Down Texas Law That Violates Voting Rights Act.” And the text of the August 12, 2016 opinion (OCA Houston v. State of Texas, 1:15 CV-00679, Western District of Texas, Austin Division) is here, linked to scribd.com within the NBC online story.
The facts of the case highlight why it was a bad idea for the State of Texas to specify that interpreters had to be registered voters in the same county as the person that they were helping. A voter with limited English proficiency went into a polling place in Williamson County with her son, intending that her son would help her read the ballot. If the voter’s had been deemed to merely be offering “assistance” (i.e., help in marking the ballot), he wouldn’t have been challenged. But he was “interpreting” (i.e., translating the ballot), and the election workers at the polls determined that he could not do so, because he was registered to vote in Travis County, not Williamson County.
That’s a weird, restricting, artificial reason to thwart voter intent.
The smart move on the State’s part would have been to settle and accept an agreed judgment the instant that the lawsuit hit the transom — there is absolutely no upside to fighting this. We’ll see if common sense prevails.
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.
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)
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.”
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’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?”
I saw on Rick Hasen’s blog that he had already posted this link to a Guardian story about Texas voters – the story is as good an illustration of the profound wrongness of Texas voter I.D. law as any I’ve seen.
A reader (Frank Provasek) has provided extremely valuable and eye-opening information in his comment on my post about Veasey v. Perry and the State’s selective, politically motivated treatment of veterans’ I.D.s. Without any public announcement or acknowledgment, the Secretary of State now accepts veteran’s health I.D. cards as voter I.D.s in the polling place, encouraging further cherry-picking, ad hoc after-the-fact administrative legislating, and pandering to specific conservative voters.
Although you may have seen Mr. Provasek’s comment already, I wanted to highlight it for those of you who may not regularly check subsequent developments on my posts. I’m reproducing Mr. Provasek’s comment in full:
Texas DPS defines military ID as a primary form of ID, and defines Veterans cards not as a primary or even secondary form of ID, but merely “a supporting document” like an electric bill with your name on it. . The Veterans cards are pictured in a PDF file here http://www.sos.state.tx.us/elections/forms/id/acceptable-forms-of-ID.pdf
The VA created a NEW card called Veterans HEALTH Identification Card (VHIC) to go alongside the Veterans Identificatiion Card (VIC) The new card rolled out in Summer of 2014, so even AFTER the regular Veterans ID cards were somehow added in 2013, an additional card was added in 2014, while the Veasey v Perry lawsuit was underway.
You wouldn’t know these veterans cards are accepted by a text search on the SOS website (or any state website). They are only shown as images in powerpoint or pdf files — and do not show up in a Google search. They are not mentioned in the law, the election code, nor on the state voter portal here http://votetexas.gov/register-to-vote/need-id/ or on the posters displayed at the polling places http://votetexas.gov/wp-content/uploads/2013/09/poster-8.5×14-aw.pdf
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.”
As promised, here are what I refer to as the “anti-ACORN” laws (the story of the ACORN slander is fairly well-known, and has been better told by others. Briefly, conservatives targeted an innocuous and fairly successful national community service non-profit for perceived crimes involving voter registration, and managed to so thoroughly trash the non-profit’s reputation that all of its funding dried up and it ceased to exist.
That the organization was subsequently vindicated and found to be innocent was irrelevant, as those who attacked ACORN likely were indifferent to whether the non-profit had actually committed any crimes or not. ACORN’s crime, such as it was, was to be perceived as an unusually successful political organizer of Democratic Party voters). Convicted felon James O’Keefe (the notorious right-wing agent provocateur) was instrumental in crafting faked videos that contributed to ACORN’s downfall.
In the wake of the ACORN slander, a number of Republican-controlled states considered or enacted laws designed to handicap voter registration efforts using more formal statutory powers. Notable examples of these restrictions were enacted in New Mexico, Florida, Wisconsin, and (of course) Texas. (For a comprehensive survey of these restrictions, and an interactive map of the restrictions state-by-state, see http://www.brennancenter.org/analysis/voter-registration-drives).
The statutory suite enacted by the Texas legislature was one of the most restrictive in the country, and included the following elements:
- A new mandatory testing and certification requirement for people acting as volunteer deputy voter registrars (Tex. Elec. Code Sections 13.031(e) and 13.047);
- Additional grounds for cancelling volunteer deputy registrar’s commissions, and (in a cruel twist) the rejection of voter registrations collected by a “defrocked” volunteer deputy registrar after the cancellation of appointment (Tex Elec. Code Section 13.036);
- An in-person voter registration delivery requirement (which effectively shuts down statewide or non-county specific volunteer deputy voter registration) (Tex. Elec. Code Section 13.042); and
- New and existing provisions that place volunteers at risk of criminal prosecution (e.g., if the deputy voter registrar transcribes confidential information on the application form (Tex. Elec. Code Section 13.004); fails to meet the delivery deadline for returning the applications in person to the county voter registrar (Tex. Elec. Code Section 13.043); knowingly induces false statements on the voter registration form (Tex Elec. Code Section 13.007), or (and this was added in 2011), if the deputy voter registrar is compensated on a performance basis for delivering voter registration forms (Tex. Elec. Code Section 13.008)).
So voter registration drives became more heavily regulated in 2011. But what has the practical effect been of these new laws?
The Texas Attorney General’s investigation and raid of the Houston Votes organization (which had been prompted by a complaint from the notorious True The Vote organization) occurred in 2010, prior to the enactment of the most recent laws., but the raid reinforced the risks faced by the organizers of voter registration drives.
It appears that the most dangerous thing a non-profit can do these days is distribute voter registration applications to minorities and the poor. The destruction of ACORN didn’t salve conservative anger following the 2008 Presidential election, and it appears that nothing less than scorched earth will answer the efforts of non-profit organizations to get more Texans registered to vote.