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A Question About Homeless Voting

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.

The True Cost of Free Voter I.D. in Texas

Per Section 521A.001 of the Texas Transportation Code, the Department of Public Safety will provide voter I.D. cards without charge upon application. However, these voter I.D. cards (which cannot be used to satisfy other statutory demands for identification) may only be issued at select DPS offices, and only to individuals who present sufficient legal documentation of their citizenship and identity.

Herein lies the rub. As “free” I.D. is presumably intended to accommodate the indigent, we may assume that the greater demand for these I.D. cards would be from those potential voters who don’t have much in the way of resources.

So how much would it cost to get a free Texas voter I.D.?

For the sake of argument, assume that the potential voter is an indigent patient of the Rusk State Hospital in Rusk, Texas. Such a voter is not representative of the Texas population, but shares some qualities with a group of Texas citizens who are particularly unlikely to participate in elections (namely, the institutionalized, the disabled, the indigent, and the elderly).

First, one must apply for a voter I.D. in person at a designated DPS office. As critics of the Texas voter I.D. law have pointed out, the number of available offices has declined, making the task of getting an I.D. more formidable (especially for people in rural areas). There is no drivers’ license office in Rusk, Texas – the closest office is on 506 East Pine Street in Jacksonville, Texas. But this isn’t too bad – the DPS office is only about 15 miles away from the hospital. Although there’s no public transportation to speak of, an ambulatory person without a car could walk from Rusk to Jacksonville in about four hours, by keeping to the shoulder of U.S. 69 going northwest from downtown Rusk (and keeping in mind that customers will be served in the order they arrive, and that the DPS office is open from 8:30 to 5:00 Monday through Friday).

Although Rusk State Hospital is a psychiatric hospital that is stereotyped as a prison hospital, it is also the primary mental health care provider in East Texas, and serves both captive inmates, involuntarily committed civilians, and the general population. Of course, confined patients could simply vote by mail from the hospital and avoid the bother of I.D. voting altogether, but it isn’t inconceivable that a transient patient might need to acquire a voter I.D. for in-person voting, despite being treated at the hospital.

In any case, our example will serve to identify the issues faced by any residents of Rusk who need a picture I.D. to vote, but who lack a driver’s license.

After getting to the DPS office and filling out an application for a voter I.D. certificate, one must provide documentation of U.S. citizenship using one of the following documents:

  • U.S. passport book or card
  • Birth certificate issued by a U.S. state, U.S. territory or District of Columbia
  • For U.S. citizens born abroad—Certificate of Report of Birth (DS-1350 or FS-545) or Consular Report of Birth (FS-240) issued by the U.S. Department of State
  • U.S. Certificate of Citizenship or Certificate of Naturalization (N-560, N-561, N-645, N-550, N-55G, N-570 or N-578)
  • U.S. Department of Justice Immigration and Naturalization Service U.S. Citizen ID Card (Form I-197 or I-179)

Third, one must provide documentation of identity. Those with U.S. passports are well-set, given that the passport is a primary document proving both citizenship and identity. However, the other items in the above list are insufficient proof of identity, and must be paired with at least two of the following items:

  • Social security card
  • Form W-2 or 1099
  • Driver license or ID card issued by another U.S. state, U.S. territory, the District of Columbia or Canadian province (unexpired or expired less than two years)*
  • Texas driver license or ID card that has not been expired more than two years
  • Temporary receipt for a Texas driver license or ID card
  • School records* (e.g., report cards, photo ID cards)
  • Military records (e.g., Form DD-214)
  • Unexpired U.S. military dependent identification card
  • Original or certified copy of marriage license or divorce decree (if the document is not in English, a certified translation must accompany it)
  • Voter registration card*
  • Pilot license*
  • Concealed handgun license*
  • Professional license issued by a Texas state agency
  • ID card issued by a government agency*
  • Consular document issued by a state or national government
  • Texas Inmate ID card or similar form of ID issued by Texas Department of Criminal Justice
  • Texas Department of Criminal Justice parole or mandatory release certificate
  • Federal inmate identification card
  • Federal parole or release certificate
  • Medicare or Medicaid card
  • Selective Service card
  • Immunization records*
  • Tribal membership card from federally-recognized tribe
  • Certificate of Degree of Indian Blood
  • Unexpired foreign passport
  • Unexpired insurance policy valid for the past two years (e.g., auto, home or life insurance)
  • Current Texas vehicle registration or title
  • Current Texas boat registration or title
  • Veteran’s Identification Card from the U.S. Department of Veterans Affairs
  • Hospital-issued birth record*
  • NUMIDENT record from the Social Security Administration
  • “NUMI-lite” letter from the Social Security Administration

The asterisked items must have been issued by some government-owned authority.

Some of the secondary documents that would prove identity are less likely to be possessed by an indigent person, given that these documents are dependent on ownership of personalty or realty. Therefore, I’ve drawn a line through those documents. Other items would more likely be in the possession of a non-U.S. citizen, and can be excluded as well. I won’t presume whether or not the voter has some criminal record or military service, and forms of identification available to former inmates or veterans could exist.

The two supporting documents must come from two different agencies; thus, one could not use both a NUMIDENT record and a NUMI-lite letter from the Social Security Administration.

Anyway, how much might it cost to get at least enough documents to get a free voter I.D. card?

U.S. Passport and Card – The passport is worth more than gold, as evidenced by the $165 ($140 application fee plus $25 execution fee) price tag. Expedited service is another $60, and these charges do not include the cost of the photo. Some savings can be realized by just applying for a passport card (instead of a passport book) which is just $55. Keep in mind that the passport application process will also require certain documents to prove citizenship and identity, and these may require an additional charge. If the applicant has previously had an expired passport, a $150 search fee can be paid to confirm that prior evidence of citizenship.

Certified birth certificate – If from a U.S. jurisdiction, it appears that the cost ranges from around $12 to $20, although there is no uniform rate; the fees are set by the jurisdiction issuing the certificate. Consular reports of live birth issued by U.S. embassies currently cost $50, which is the uniform fee for any vital record from the U.S. Consular Service.

A replacement certificate of naturalization costs $345, per information provided by the U.S. Customs and Immigration Service (see form N-565).

U.S. Citizen I.D. card – The so-called Form I-197 I.D. card is no longer issued, so while it is still useable as proof of citizenship, there is no mechanism for gaining or replacing such a document.

Assume for the sake of the example that a potential voter does not have access to a form “proving” citizenship. If that is the case, the applicant will be out an additional amount of money, regardless of the availability of other secondary documents proving identity. If the applicant is lucky, he or she was born in circumstances that led to the creation of a birth certificate in some U.S. jurisdiction, in which case the free voter I.D. will cost around $10 to $20, plus the opportunity cost associated with the time and effort required to request and receive that document.

If the voter is unlucky (as is the case for anyone whose vital records were destroyed in a fire, as in the case of my grandmother, or in many circumstances of midwife-assisted birth in Texas or California, where filing of vital records tended to be lax), then the cost will soar to somewhere between $55 and $165 or more for a passport. If the person was naturalized but lacks documentary proof, the cost is going to be around $345. For more intractable documentation problems, the costs will be much higher, and may require court proceedings to settle questions of identity and citizenship.

How many Texans are disenfranchised by picture I.D. requirements? The best guess (see the 2006 study by the Brennan Center for Justice, “Citizens Without Proof”, and related discussions of that study.) is around 11% of the voting-age population. The percentage of poor adults without sufficient documentation is likely to be higher, as is likely also the case with lower income voters and voting age members of racial and language minorities.

Given that picture I.D. requirements impose a financial burden on voters, those requirements deserve the same opprobrium as is aimed at poll taxes and literacy tests; such burdens effectively place a price tag on citizenship. But there are choices that a legislature can make to transform a bad voter I.D. law into a somewhat less bad law. One solution is to include a “no-fault” affidavit of inability to pay costs that completely substitutes for any photo i.d. requirement.

Such a measure is still objectionable on the grounds that it stigmatizes the indigent. But at least it would allow those individuals a chance to vote. We can already see what happens to the rights of the most needy when they lack any representation at all.

 

Texas Voter I.D. Law – A Closer Look

Notwithstanding the avalanche of lawsuits likely to enjoin enforcement of the State of Texas’ current voter picture I.D. law (Act of 2011, 82nd Leg., R.S., (S.B. 14), codified as Section 63.0101, Texas Election Code), the politically ambitious Attorney General has insisted that the law became effective immediately upon the finding that Section 5 of the Voting Rights Act was unconstitutional. This is quite a stretch, given that the D.C. district court had found intentional racial animus as the motivating factor in passing the I.D. law, strongly implying that Voting Rights Act Section 2 claim would succeed.

But setting aside the politics of voter I.D., I find it interesting that in general, popular media descriptions of the Texas voter I.D. law tend to accept as a given that the law is the same as or very similar to voter I.D. laws passed in other states, with Indiana and Georgia voter I.D. laws often serving as the comparative standard by which the Texas law is judged. That the Texas law was “no different” than these other state laws was certainly a talking point promoted by the supporters of the Texas law while the legislation was being debated in 2011, but the presumption of similarity doesn’t bear up under close examination.

Here’s how Indiana currently defines “Proof of Identity” for purposes of voting (from Title 3, Article 5, Chapter 2, Section 40.5 of the Indiana Code, available online at: http://www.in.gov/legislative/ic/code/title3/ar5/ch2.pdf).

IC 3-5-2-40.5

“Proof of identification”

Sec. 40.5.

(a) Except as provided in subsection (b), “proof of identification” refers to a document that satisfies all the following:

(1) The document shows the name of the individual to whom the document was issued, and the name conforms to the name in the individual’s voter registration record.

(2) The document shows a photograph of the individual to whom the document was issued.

(3) The document includes an expiration date, and the document:

(A) is not expired; or

(B) expired after the date of the most recent general election.

(4) The document was issued by the United States or the state of Indiana.

(b) Notwithstanding subsection (a)(3), a document issued by the United States Department of Defense, a branch of the uniformed services , the Merchant Marine, or the Indiana National Guard that:

(1) otherwise complies with the requirements of subsection (a); and

(2) has no expiration date or states that the document has an indefinite expiration date;

is sufficient proof of identification for purposes of this title.

As added by P.L.109-2005, SEC.1.

Amended by P.L.118-2011, SEC.1.

(Emphasis added).

So at first glance, this seems to be more or less like the Texas law. In circumstances where proof of identification is required of a person in the registration or voting process, an Indiana voter must have some current document issued by the state or the United States. Title 9, Article 22, Chapter 16 of the Indiana Code provides an elaborate system for the production of non-driver I.D. cards, at no charge to non-drivers over the age of 18; exceptions are made for victims of domestic violence or abuse who are enrolled in a confidential address program, and for veterans. The system of state-provided voter I.D.s also has provisions for I.D.s for resident aliens and temporary residents that distinguish those groups from voters.

But the Indiana law: (1) does not require picture I.D. voting by residents of a long-term care facility; (IC 3-11-8-25.1(e)); allows the use of state-school issued student I.D.s (IC 3-5-2-40.5(a)(4)); allows a voter without adequate I.D. to supply an affidavit in lieu of a picture I.D. in certain cases (i.e., based on indigent status or religious objection) (IC 3-11.7-5-2.5(c)(2)), and, as mentioned above, authorizes the use of all military and veteran’s I.D.s.

In contrast, the Texas law is much stricter. Section 63.0101 of the Texas Election Code provides the following list of required I.D.:

Sec. 63.0101.  DOCUMENTATION OF PROOF OF IDENTIFICATION.  The following documentation is an acceptable form of photo identification under this chapter:

(1)  a driver’s license, election identification certificate, or personal identification card issued to the person by the Department of Public Safety that has not expired or that expired no earlier than 60 days before the date of presentation;

(2)  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;

(3)  a United States citizenship certificate issued to the person that contains the person’s photograph;

(4)  a United States passport issued to the person that has not expired or that expired no earlier than 60 days before the date of presentation; or

(5)  a license to carry a concealed handgun issued to the person by the Department of Public Safety that has not expired or that expired no earlier than 60 days before the date of presentation.

Tex. Elec. Code Section 63.0101 (2013).

Among other things, note that the Texas law excludes more forms of I.D. than the Indiana law, limiting acceptable I.D.s solely to those that have not expired within 60 days. No accommodation is made for military I.D.s without expiration dates, and no provision is made for accepting any other state-issued I.D.s not issued by the Department of Public Safety. Admittedly, the list does include the quaintly peculiar accommodation of concealed handgun licenses, but this isn’t particularly helpful to those groups otherwise unlikely to have I.D. (i.e., the indigent, the disabled, and the elderly).

To be fair, Texas does offer the following: (1) Voters who have a determination from the Social Security Administration or Veterans Affairs that they are at least 50 percent disabled are exempt from the requirement to show picture I.D. (Tex. Elec. Code Section 13.002(i)); (2) Voters who lack picture I.D. due to natural disaster or because of a religious objection to being photographed may execute an affidavit to that effect when voting provisionally (Tex. Elect. Code Section 65.054(b)(2)); and people over the age of 70 are entitled to receive a non-expiring voter I.D. from the Department of Public Safety (Tex. Transp. Code Section 521A.001(h)).

These are all ad hoc (and frankly, almost impishly backhanded) sorts of accommodations.

Social Security and V.A. disability determinations are variable fact-based administrative determinations based on an individual’s occupational incapacity, not on some uniform standard of physical or mental impairment; of two people with identical physical impairments, one could be judged disabled while the other one is not, simply because one is a physical laborer while the other is an office worker.

A Texas voter can execute an affidavit that that voter’s I.D. was lost to a natural disaster, but the accommodation of the loss of documentation due to a natural calamity only occurs in those circumstances where the Governor or the President has declared a disaster within the last 45 days (for disaster relief); one can easily imagine a person affected by personal disaster that doesn’t rise to the level of a declared emergency.

And finally, while individuals over the age of 70 may receive non-expiring voter I.D.s, they will still have to provide the same documentation of their identity and submit to the same administrative hurdles as anyone else applying for state i.d.

The Indiana law is of a piece with most other “strict picture I.D.” state laws that have been adopted since 2005; it is subject to the same broad editorial criticisms that have been leveled at the insistence on picture I.D. at the polls; Indiana followed the model of laws adopted in Georgia, Wisconsin, Virginia, Florida, and half-a-dozen other states.

But what the national critics of voter I.D. have failed to notice is that Texas voter I.D. law is significantly more strict than the laws adopted by other states, in particular because it makes no explicit accommodation of indigents, provides no mechanism to accept “same in quality” alternative forms of I.D., makes no exception for persons living in nursing homes, and limits disability exceptions solely to those individuals who have successfully negotiated disability determinations from either the Social Security Administration or the VA.