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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.

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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.”

What Just Happened?: Starting With Why Hillary Clinton Isn’t Going To Ask for a Recount or File An Election Contest

DOES THE #AUDITTHEVOTE MOVEMENT HAVE LEGS?

Three nights ago, my wife told me to check my Facebook page because she had “tagged me” (whatever that means*) with a story from New York magazine about a group of lawyers and computer scientists who have urged the Clinton campaign to file recount requests in Wisconsin, Michigan and Pennsylvania. (She also said something about a petition that as of this writing has close to 200,000 signatures.)

So I started to write about that story, but then one of the quoted security experts (Professor Alex Halderman) published a follow-up on Medium to provide context and to correct nuances of the story that he felt the magazine’s coverage had omitted.

(At the University of California, Berkeley, a separate unrelated group of security experts are also calling for a “risk-limiting” audit of the election for similar reasons and on similar grounds.)

Professor Halderman’s blog post describes the facts that have driven this group of respectable and well-regarded experts to urge a review of the election — these facts include

(1) Reports that Russian agents wanted to or tried to interfere with and subvert the mechanisms of democracy in collusion with the Trump campaign in key battleground states;

(2) Troubling statistical anomalies in voter turnout compared across jurisdictions within those battleground states;

(3) The experience of Ukrainian election officials, who in 2014 were caught off-guard by a multi-pronged attack on vote-reporting and online tabulation of their national election in 2014. (Some of the details of that 2014 attack were covered in this Wall Street Journal story.)

In August of this year, Ben Shapiro wrote a nice summary article for Politico about the security threats that endanger electronic voting generally, stretching back to the dramatic headline-grabbing criticisms directed at electronic voting system manufacturers made by Andrew Appel and Alex Halderman in 2003. The story also briefly touches on the capacities of foreign hackers to disrupt elections with non-physical attacks.

On Facebook and elsewhere, the New York magazine story is being circulated along with admonitions to readers to call or write the Department of Justice and urge the DOJ to audit the election. As the New York story points out, the deadlines for candidate recount requests (which are functionally distinct from and more modest than full-blown election contests filed in court, but which help frame the factual context and discovery process in advance of possible litigation) are almost over—today, November 25, is the deadline for a recount in Wisconsin; Monday, November 28, is the deadline in Pennsylvania; and Wednesday, November 30 is the deadline for a recount in Michigan.

On the topic of recounts, Green Party candidate Jill Stein might or might not use some of the money she’s raised to request recounts, although her request would not particularly help any other candidate, and seems like a quixotic cry for attention.

In his blog posts addressing the New York magazine story, Rick Hasen has said pretty much everything that needs to be said about this matter.

As to my analysis, recounts are not forensic examinations of the veracity of an election—they are merely re-tallies of the election returns to correct arithmetic errors. Realistically, if there is credible evidence of some actual and material election fraud, that evidence will only be adduced through a criminal investigation or an election contest, or both; not a recount.

Is Hillary Clinton going to file an election contest?

Eh … I would put the odds of such litigation as slim to none.

The problem for the Clinton campaign is twofold.

First, there is a matter of a lack of concrete evidence of material irregularity in the conduct of the election — beyond arguing that the statistical patterns of turnout and voting results looks fishy, one would need to articulate with some credibility how the election outcome was hacked. Without knowing more, I just don’t see any evidence of tabulation errors that might be collected through an election audit as being sufficient to support a contest of the results.

Second, the losing candidate is under pressure from her own party to accept the results in the interest of promoting a peaceful transition to the new administration.

ELECTION HACKING IN CONTEXT

Whether rigging an election in 1916 or in 2016, and independent of the technology used to record votes, the person or group doing the rigging always faces the same general tactical challenge: You can’t rig an election except by getting your hands on the ballots.

Voting machines are not networked, and you cannot access them remotely — as Professor Appel demonstrated when he broke into his guinea pig voting systems, an election-stealer actually has to get his or her hands dirty.

That being said, if you have actual possession of the equipment to be used in an election, you can presumably maliciously destroy the election to your heart’s content, limited only by your technical skill and the scope of your evil intentions.

But that’s always been true — technology alters the details of how the machinery might be subverted, but it doesn’t alter the scope of the broad security problem at hand.

Stunts like reprogramming voting machines to play Pac-Man, or theatrical subversions of the District of Columbia’s abandoned notions of Internet voting don’t frighten me to any greater degree than any other hypothetical or actual examples of election subversion, because even the most extravagant forms of election fraud are dependent on physical access to the machinery of voting.

Or rather, I suppose all examples of election rigging do frighten me, but always to the same extent, and independent of the specific details of any particular method of election theft that might be described, whether it involves paper ballots or electronically recorded votes.

In other words, I find election rigging involving ballot box-stuffing and paper forgery to be just as worrying as election rigging involving sleeper software, self-replicating trojan horse viruses, and reverse-engineered access keycards.

So rigging an election that uses direct-recording electronic voting systems is described in technical terms that are cooler and more sinister-sounding, but that are simply the electronic analogue of getting a guy to cut the bottom out of an old-fashioned galvanized metal ballot box.

So if someone came to me and said, “I think the November 2016 presidential election was rigged in key counties within at least three of the battleground states,” my first questions would include:

  • What kind of security measures preserved the voting equipment against unauthorized access in each of those counties?
  • What evidence have you found of a breach of those security measures?

The forensic challenge might well be complex, and the answer to my question might be a mix of direct and circumstantial evidence of ballot insecurity.

“Well, in X County, county maintenance workers reported that a padlock on the county’s equipment shed was cut sometime between October 30th and November 1st, but an inventory showed no theft occurred.”

Or

“In Y County at Precinct 301, election workers had decided to get a head start on things, so they dropped off their equipment at the Smith Elementary School on the evening of the 7th, and had the janitor lock the equipment in the basement boiler room, but they don’t know who else has a key to the boiler room.”

Or

“In Z County after the polls closed, the election workers couldn’t find any of the wire-hasp seals that were supposed to be in the election kit, so they just went ahead and closed up the equipment and loaded it on the county pick-up truck to take it back to the county courthouse. Since they hadn’t bothered to write anything down on their seal register or their ‘transfer of physical custody’ form, the county clerk yelled at them and made them feel bad, but what’s done is done. The clerk went out to Office Max the next day and bought a few serial-number embossed wire hasps, and put those on the equipment.”

Such bits of evidence are the kernels of a potential police investigation — each irregularity (whether trivial or serious) prompts follow-up questions.

  • Does the county have a surveillance system for its voting equipment shed?
  • What were the reported tallies?
  • Who voted in each precinct?
  • Should the district attorney file a motion to impound the equipment to preserve evidence?
  • How many of the voters, when called and interrogated, are willing to say who they voted for?
  • Does a judge need to issue subpoenas to solicit grand jury testimony from the voters listed on the poll list?

So is it theoretically possible that elements in the Russian government could try to steal an American election by hacking voting machines? Well, sure. I mean, if and to the extent that neither the Russian government nor any of its intelligence allies minds the retaliatory risk to their own voting apparatus. Tit for tat, and all that.

To me, the fraud inherent in this election is more likely to be explained not as the product of a specific foreignfunded computer security breach of individual electronic voting units, but rather as a kind of collective self-inflicted wound on the body politic. I’m not oblivious to the threat or the potential that I have underestimated the ease of the technical limitations to be overcome, and if it does turn out that the physical mechanisms of our election’s ballot collection was subverted by a network of Russian hackers, I will be just as surprised and outraged as anyone, but I’m not going to tie myself in knots of paranoid doubt and fear in the absence of evidence.

There are to my mind more pressing systemic problems in our democracy, such as intentional voter suppression, which Ari Berman has written about extensively.

And the disturbing spread and political uses of so-calledfake news” and outright propaganda in the months and weeks leading up to the election, combined with what Americans have apparently just realized is a dire need for education about how — in addition to “Snopes it” — to discern fake from fact.

Vote suppression and racial gerrymandering also constitutes a kind of political fraud, to be sure, but the preconditions for this kind of fraud are a heady and profound failure of civic education in the face of the resurgent tides of open racial discrimination that now threaten to sweep away the gains of the civil rights movement. Maybe one might throw in a little soupçon of politically naive and dangerously nihilistic political experimentation, and voila!

In any case, if this election was overtly stolen through manipulating the tabulation of ballots, the state (through criminal investigation and prosecution) can punish the theft. But practically speaking, the only person with legal standing to file a civil suit (i.e. an election contest) to repair the civic damage caused by that theft is the losing candidate — not the voters, whether through an “audit” or otherwise.

So, unhappy voters, petition the DOJ as you see fit, but in petitioning for an “audit” you are not formally initiating any sort of recognized investigative or restorative process to change the outcome of this election.

You can also demand some sort of revolt by the Electoral College as well, if you’d like, but you should know that with a few negligible exceptions, the electors from each state are chosen by the candidate who wins that state’s popular vote. In other words, the electors are friends and supporters of the candidate and are chosen specifically for their loyalty to the candidate who has identified them for that role.

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*I know that when I say, “I don’t understand Facebook,” it looks like I’m crotchety and dim, shaking my liver-spotted fist at the kids tearing across my yard on their fancy social-network mountain bikes. And well …, I probably am crotchety and dim with respect to popular social networking sites and technologies (although as I understand it, Facebook itself is now kind of the fuddy old “grandpa” portal in comparison to Instagram and Twitter).

But honestly, can even those of you who regularly and confidently use Facebook (I’m looking at my wife right now) say that in your heart you truly love Facebook’s often extravagantly non-intuitive interface and design? Really? Even when it breaks expectations and functions in a manner inconsistent with other routine communication structures? Well, okay then. I guess it’s just me.

Speaking of Redistricting, When Can We Expect To See A Court Order?

Well, for all things election-litigation related, I like to turn to that excellent source, namely Election Law@Moritz (i.e., the magisterial website maintained by the Moritz College of Law at Ohio State University, which tracks election-related litigation, legislation, and so on). And so, let’s look at what’s happening in Perez v. Texas:

Huh … that’s funny. So … aside from some rather minor procedural wrangling in early June of this year, all the significant briefing deadlines have passed. The last substantive order from the court was a scheduling order back in mid March, asking the parties to submit briefs on a 5th Circuit ruling related to the “mootness” of the fight over the 2011 Texas House of Representatives and Congressional districts. Those briefs are all squarely tucked away and filed, and have been for some time.

In May (with a note of urgency) the Texas Latino Redistricting Task Force very politely asked the redistricting panel to issue a ruling finding discriminatory redistricting, damn it.

Let’s see …

May, June, July, August, September. So … five months and counting.

Maybe the panel figures they could just wait for the 2020 census and avoid a lot of needless paperwork.

Or, another way to look at the speedy resolution of this matter is to consider that it’s been … five years since the suit was filed. Which, hey, as an attorney, I know is the merest blink of an eye in the grand slow procession of the law, an edifice resting on the second-hand posthumous recollections of extemporaneous judgments regarding disputes over cattle and land made by long-dead illiterate Saxon barons in the dim recesses of Danelaw and Alfred the Great.

So, you know, it’s not a structure built for speed.

But still, … all the substantive briefing was completed a long time ago. What’s the hold-up?

Could the U.S. Supreme Court Scuttle Representative Democracy?

Well, sure, if the justices wanted to, they could get rid of population-based apportionment of state legislative districts. It would be a dumb thing to do, but this is a court inured to the practice of doing dumb things.

The case in question is Evenwel v. Abbott – the plaintiff argues that Texas should not base state redistricting on the distribution of its population, but rather on the distribution of its voters. The motivation for the case is to strip power from urban areas in favor of the rural conservatives.

Central to the conservative argument is that apportionment of representation by population size “dilutes” the power afforded to voters by distributing representation based on both the voting population and all the other people (kids, foreigners, prisoners, non-voters) who happen to live in a state House or Senate district.

In other words, the plaintiff believes that government representatives do not serve all the people in their district. The plaintiff believes that government representatives serve only the people who vote, and everyone else can suck eggs.

Not surprisingly, every court that has heard the plaintiff’s argument has rejected it out of hand. Surprisingly, the U.S. Supreme Court didn’t just reject the argument out of hand, which has everyone worried. Needless to say, a decision favorable to the plaintiff would be devastating to the efforts of underrepresented minority populations to redress the inequalities they face.

Passing the Buck on the Motor Voter Law, Texas Style

This week, the law firm of Waters and Kraus LLP sent a demand letter to the Texas Secretary of State, informing him of his failure to meet the legal requirements of the National Voter Registration Act, and of his legal liabilities under that federal law.

The law in question is Section 20504(a) of Title 52, Chapter 205, United States Code (text taken from uscode.house.gov):

(1) Each State motor vehicle driver’s license application (including any renewal application) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration with respect to elections for Federal office unless the applicant fails to sign the voter registration application.

(2) An application for voter registration submitted under paragraph (1) shall be considered as updating any previous voter registration by the applicant.

52 U.S.C. Sec. 20504(a) (2015).

Easy enough to understand, right? If you get a driver’s license, or renew a driver’s license, you get registered to vote, or you get your registration updated, assuming that you are legally eligible to vote.

Unfortunately, Texas has done an abysmally poor job of implementing that simple mandate, and the Texas Secretary of State has seemingly abdicated all responsibility for correcting fundamental programmatic errors and mistakes in the way that the law is implemented. More damning, public records show that the Secretary of State has been aware for years that the state’s implementation of the federal law is badly flawed, but has failed to correct the flaws.

1. WHAT EXACTLY IS TEXAS DOING WRONG?

In Texas, drivers’ license registration and renewal is handled by the Department of Public Safety. As in other states, people who want to legally drive a car, (or to continue legally driving a car), go to a government office, fill out paperwork, pay a fee, maybe have to pass a driver’s test or a simple eye exam, and get a license.

Of those people who get licensed to drive a car, a large number will be legally eligible to register to vote, or they will already be registered to vote. Whether those legally eligible voters actually get registered is dependent on a number of factors.

  • Failure To Provide Forms

Sometimes, the mistake is a simple failure on the part of a customer service representative to actually provide the voter registration form – the person getting a driver’s license or renewal will be asked, “Would you like to register to vote?”, the customer will say “Yes,” but no data regarding the transaction will be entered. The customer leaves the office thinking, “I must be registered to vote now.”, but the whole transaction sinks without a trace into the black waters of the River Lethe.

Maybe the clerk didn’t hear “yes.” Maybe the clerk heard “yes” but thought it was “no.” Who knows? Certainly, the clerk’s processing of the license application or renewal is made incrementally less complicated if an additional form doesn’t have to change hands, and the line at the counter moves a little faster.

  • Failure to Process the Information Correctly

Sometimes the customer service representative makes a more subtle error by going through all the overt steps of entering the customer’s data, but incorrectly. At least a record of the transaction exists, notwithstanding the mistake, and maybe the voter’s registration status can be saved through subsequent investigation. But for every hoop that the voter jumps through later (voting provisionally, having the provisional ballot reviewed by the county voter registrar, having the voter registrar seek transaction records from DPS, getting a final disposition letter from the early voting ballot board), the chance of another compounding error may derail the voter’s exercise of the electoral franchise.

  • Willful Noncompliance

One might say, “Well, Texas is a big, lazy, badly managed State. What of it? Anyone who walks into a government office to get a driver’s license is aware that the clerks are sullen, poorly paid, badly trained, and resentful. We should be grateful that anyone at all ever manages to get registered to vote at DPS. In fact, we should be grateful that anyone at all ever manages to successfully get a driver’s license at DPS. Against ignorance and the insolence of office, the gods themselves struggle in vain.”

Such fatalism in the face of entropy and error is misplaced in this circumstance for two reasons. First, while any system of voter registration is likely to have some error rate, data trends suggest that the State of Texas experiences significantly greater errors in motor voter registrations than the national average (as per the demand letter’s citation of the 2012 EAC report on state registration trends).

Second, and more seriously, the State’s online driver’s license renewal system directly violates federal law, because it perversely cancels voter registrations for people who move from one county to another, without also automatically registering those voters in the new county.

2. The Unexpected Gotcha of Online Driver’s License Renewal and Address Corrections

Wait. What?

For as long as Texas has had a system of voter registration, it has been the case that when a person moves from one county to another, that person must re-register to vote in the new county. The act of changing one’s permanent residence from one county to another automatically cancels one’s voter registration in the former county of residence.

The specific mechanism of this cancellation is a bit convoluted. Section 15.021 of the Texas Election Code provides that a voter may correct or update his or her voter registration information. Meanwhile, Section 16.031 of the Election Code provides that if a voter’s correction or update indicates that the voter lives outside the county of registration, that the voter’s registration is immediately cancelled.

Okay. Granted, a voter may not know that a move across county lines automatically cancels one’s registration in the old county, but ignorance of the law is no excuse, and all that.

Now, take a look at subsections (d) and (e) of Section 15.021 of the Election Code. The subsections provide that a voter “who continues to reside in the county in which the voter is registered” may submit an address change electronically through the Department of Public Safety, in order to update the voter registration address, and that the Secretary of State will “approve technologies” and “prescribe additional procedures” for implementing the digital transmission of changes in voter registration.

Okay. What’s weird about that statute is the specification that the system is solely available to a voter “who continues to reside” in the county where that voter is registered to vote. What about the other voters? What happens to voters who don’t continue to reside in the county where they are registered to vote? Do they just suck eggs?

No. They get warned away from trying to use the online DPS license update in order to update their voter registration. Note – they aren’t prohibited from using the update system – they’re just given a warning. They still get a friendly little box to check, “Yes – I’d like to update my voter registration.”

But the National Voter Registration Act is clear – any existing voter who updates their driver’s license information should automatically be registered to vote in the jurisdiction that they now reside in. (52 U.S.C. Section 20504(a)(2)). Even if a voter has moved across county lines, and is therefore cancelled as a voter in the old county, that cancellation should be offset by the voter being registered automatically in the new county.

52 U.S.C. Section 20504(d) states that “Any change of address form submitted in accordance with State law for purposes of a State motor vehicle driver’s license shall serve as notification of change of address for voter registration with respect to elections for Federal office for the registrant involved unless the registrant states on the form that the change of address is not for voter registration purposes.”

No distinction exists regarding the legal effect of electronic or online address updates versus ones that are done at a DPS office; so the State is breaking the law by using voter’s online address updates to cancel voter registrations without balancing those cancellations with new voter registrations in the new counties.

It doesn’t matter that the State law has been interpreted for years to require a draconian “tough love” approach towards voter-initiated address updates – favoring cancellation without any compensatory registration in the new county. Such an interpretation cannot be reconciled with the express requirements of the federal law, which do not brook the creation of secret traps for cancelling registrations of voters who move from one jurisdiction to another.

Frankly, this lawsuit is long, long overdue.

Honestly, even outside the context of the “motor voter” law, the State’s “gotcha” interpretation of the combined effects of cancellation of voter registration (under Section 16.031 of the Election Code) and the treatment of innocent voter address updates (under Section 15.021) is probably a violation of the Equal Protection Clause of the 14th Amendment. But that’s a fight for another time.

So are they all, all honorable men.

Stories about the November 2014 midterm elections seem to be riffing on a somewhat depressing theme – namely, that of corruption rewarded and the apparent triumph of scoundrels.

In Texas, it now appears that the Attorney General (and more-or-less self-anointed future Governor) used the denial of an open record request as the mechanism to engineer a cover-up of evidence of graft involving the distribution of millions of dollars in taxpayer money from the Texas Enterprise Fund to campaign contributors. That’s the same Attorney General who presided over the rather brutal 2010 take-down of a Houston non-profit that was trying to register people to vote.

He’s a busy A.G., to be sure, given that he’s also defending the State’s efforts to tear down what’s left of the Voting Rights Act. What does Greg Abbott stand for, anyway?

In Wisconsin, Justice Easterbrook of the 7th Circuit Court of Appeals has issued a “horrendous” decision holding that a substantial fraction of the eligible voters in that state need to be denied the right to vote. But don’t worry, the ruling only affects poor people, people with physical disabilities, and the elderly. Friends and relatives of the appellate judge should be unaffected.

Not all the news is gloomy – that business with Houston Votes may come back to bite Abbott after all. And if we really do turn the clock back to 1964, it means that the civil protests, mass rallies, and boycotts of that era will be “back on” again, which should make for some exciting television as the Tories fade from history yet again.

And of course, most importantly, the election hasn’t happened yet. There’s still time to change the theme of the 2014 elections. I personally would like to see a narrative involving such standbys as “retribution,” “comeuppance,” and “the wages of hubris and overweening confidence.”