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Democracy in Crisis: Rick Hasen’s Editorial Is A Must-Read
“Don’t Let Our Democracy Collapse”
I’m reposting Professor Hasen’s editorial in today’s New York Times (linked through his election law blog) here for three reasons.
First, it’s a clear-eyed and thorough analysis of the present danger.
Second, it nicely coincides with a question my wife asked me this week (which I’ll paraphrase here as “So … what legal mechanisms may be employed to remove bad actors from elective public office?”)¹
And third, it’s a prompt for me to ask all of you for your thoughts.
There is cause for pessimism about voting rights in general (e.g., as the Texas House redistricting trial winds down, and in the face of institutionalized hostility towards the preservation of voting rights). But there is also cause for optimism (as civil rights advocacy groups renew their focus and energy in response to the urgency of this crisis, embedded in what I might dryly refer to as a target-rich environment for litigation).
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¹With respect to my wife’s question (which was specifically about removing executive and legislative officers from the federal government), here’s the short answer – per Article II, Section 4 of the Constitution, the President may be removed from office following a trial of impeachment in the Senate, based on articles of impeachment passed by the House, or he may be suspended from the duties of office based on the procedures outlined in Section 4 of the Twenty-Fifth Amendment. Members of Congress may be expelled from office upon a two-thirds vote by their peers, per the second clause of Article I, Section 5.
Three Little Words: I Was Right
My wife and I joke that the three most beautiful words in the English language are either “you were right,” or maybe, “I was wrong.”
Either way, here’s a link to the New York Times story on the latest court ruling relating to the current photo I.D. law in Texas. Here’s the gist: After a remand from the Fifth Circuit, the district court handling Veasey v. Perry has again struck down Texas’ 2011 photo i.d. law as intentionally racially discriminatory. Rick Hasen has more.
Heel Turn—DOJ Files For Continuance In Texas Voter ID Case
As reported on CNN and as analyzed by Rick Hasen’s Election Blog, the U.S. Department of Justice has asked for an extension in trial court briefing deadlines in the Texas voter ID lawsuit due to a change in the federal administration.
The common-sense interpretation of this procedural move (as expressed by Professor Hasen)?:
DOJ will switch sides and join the State of Texas in arguing in favor of more restrictive voting requirements. More to come.
Ari Berman & Others on Texas Voter Registration and Jim Crow: tl;dr: Racism, Recalcitrance, Restrictions
The Nation’s Ari Berman has posted a number of must–read stories over the last few weeks regarding the 2016 election cycle.
Although Mr. Berman’s recent election stories have been been national in scope (he’s examining violations of voting rights in North Carolina, Wisconsin, and Ohio, among other places) his cover story for this week’s issue specifically focuses on the State of Texas’s discriminatory voter I.D. law and our restrictive voter registration laws.
Berman’s coverage in The Nation‘s cover story, “Texas’s Voter-Registration Laws Are Straight Out of the Jim Crow Playbook” spotlights the restrictions on volunteer deputy voter registrars (or “VDRs”).
The story also looks at threats by some Texas officials to investigate voters who lack the narrow range of acceptable forms of photo I.D. required under the State’s 2011 voter I.D. law that was struck down in July of this year as racially discriminatory.
From the cover story in the October 31, 2016, issue of The Nation:
“VDRs [Volunteer Deputy Registrars] were established in 1985, but the restrictions on voter registration were significantly toughened by the Texas legislature in 2011 to require county trainings, ban non-Texans, and prohibit VDRs from being compensated based on the number of people they register. As a result, ‘Texas is the most restrictive state in the union when it comes to voter registration,’ according to the Texas Civil Rights Project.”
I’ve written about these matters here, here, here, here, and, most recently, here, so its good to see these problems getting wider national attention.
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A bit more on selected links included in this post:
Ari Berman’s Twitter feed is a good source of links not only to Mr. Berman’s own journalism, but also to other materials relating to civil rights and voting rights issues generally: https://twitter.com/AriBerman
The Nation—launched July 1865, so it’s covered a few elections in its time—has had excellent reporting and opinion pieces on the national elections: https://www.thenation.com.
My source for the text of provisions from Chapters 63 and 13 of the Texas Election Code (relating to voter I.D. and volunteer deputy voter registrar laws respectively) is the Texas Legislature Online: http://www.capitol.state.tx.us funded by us, the people of the great state of Texas.
Texas Voter ID Troubles Continue; District Court Orders Judicial Oversight of Texas Voter Education – And the State Doubles Down By Disparaging the Motives Of Voters Who Claim Not To Have Photo I.D.
I. APPARENTLY, THE STATE CAN SCRUTINIZE VOTERS WHO SUBMIT DECLARATIONS OF REASONABLE IMPEDIMENT IN LIEU OF PHOTO ID
On September 22, 2016, the Texas House of Representatives Elections Committee conducted a routine interim hearing on various technical matters relating to election administration. For three and a half hours the committee members and witnesses discussed proposed legislative tweaks to the petition signature process, to municipal elections, to obligation bonds and taxes, and so on. You can watch the whole hearing if that’s your thing, but for my money the really interesting stuff doesn’t come up until the very end of the hearing.
As the hearing wrapped up, State Representative Celia Israel asked an official from the Texas Secretary of State’s office about a court order that had been issued two days prior to the committee hearing. In particular, Representative Israel was curious to find out what the State was doing to educate voters about I.D. requirements for the November 8, 2016, election.
In response to the questions, Director of Elections Keith Ingram explained that the State had incorporated the text of the court’s most recent directive into the website and upcoming print and media advertising; he specified that voters who “do not possess [the statutorily mandated forms of photo I.D.] and cannot reasonably obtain it,” could cast a regular ballot by completing a “Declaration of Reasonable Impediment,” if they also supplied alternate forms of documentary evidence of their identity.
Representative Mike Schofield then took the discussion in a new direction (starting at the 3 hour, 36 minute mark), after asking if the State could track information about whether the Declarations were submitted by people who actually have I.D.:
What I don’t want to see is a gross number, and everybody acts as if those people don’t have I.D…. If you pretend you don’t have it, and use one of these declarations, that’s illegal, isn’t it?
In response to the question, Mr. Ingram clarified that voters entitled to use the Declaration would be those who had either never been issued one of the six forms of photo I.D. listed under the law, or those whose previously issued I.D.s had been lost or destroyed, and who had a reasonable impediment to replacing the missing I.D.
Representative Israel raised a hypothetical situation (described starting at 3 hours 45 minutes) in which a voter’s “reasonable impediment” is that the voter is voting at a polling place on one end of town, but left her photo I.D. at home, at the other end of town.
In that circumstance, Mr. Ingram explained that assuming that the voter filled out the “Declaration” and wrote down that the reasonable impediment was “left my I.D. at home,” the election worker would have to take the declaration at face value and allow the voter to cast a ballot.
Representative Schofield seemed incredulous, asking, “Is that … is that correct? … You’re going to let them vote with a ‘Reasonable Impediment?'”
The Director of Elections responded:
The poll worker cannot challenge the ‘Reasonable Impediment’ asserted by the voter. …. But if that’s the reasonable impediment, I think the voter is at risk, because they’re not following the law. But that’s not for the poll worker to decide. [Emphasis added by me.]
Committee vice-chair Craig Goldman then asked, “But, how does that get challenged, and then how is their vote null and void?”
The Director of Elections explained:
The vote will never be null and void. It’ll get challenged in an election contest, if it’s a close election. And obviously these things [the Declarations of Reasonable Impediment] will be available for folks to give to their district attorneys to follow up on. [Emphasis added by me.]
Representative Schofield pressed the issue as the hearing entered its final minutes (at the 3 hour 46 minute mark):
I realize we’re going to have a lot of illegal votes and a lot of fraudulent votes. That’s why we have voter I.D. My concern is that there are going to be a lot of people trying to thwart the [voter I.D.] law who have valid drivers’ licenses; who have passports; and are going to assert these declarations. Their votes may count in this election, but I want to make sure that when we go back to court, we’re not saying ‘oh, there’s this huge number of people that filed these declarations.’ I want to drill down and find out which one of ’em [declarations] were bogus. [Emphasis added by me.]
The Director of Elections responded, “And I’ll think you’ll be able to tell easily.” He then went on describe how one of the Declarations of Reasonable Impediment that had already been used in an off-season tax ratification election indicated that one voter had written that the “reasonable impediment” was “fascist law.”
The committee chair said: “Fascist law? They wrote that?”
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What’s troubling about the exchange (aside from Representative Schofield’s counterfactual and inflammatory assertion that there’s going to be a lot of “fraudulent votes” in this election), and what should be especially troubling to the plaintiffs in the voter I.D. lawsuit, is the implication—encouraged both by Representative Schofield’s assertion that “we’re going to have a lot of illegal votes,” and by the response from the Director of Elections that voters who use the Declaration can be tracked, and possibly referred to local district attorneys for prosecution for illegal voting—that voting without an approved photo I.D. is automatically suspect.
So … why is this suggestion of potential criminal prosecution troubling?
Because it is not a stretch to imagine that statements like this could have a chilling effect — dissuading eligible, qualified voters without approved photo I.D. from voting. In other words, threatening to investigate voters who file a Reasonable Impediment Declaration could end up hurting the very group of voters that the August 10, 2016, court order was intended to help.
Think I’m exaggerating about “threatening to investigate”?
On September 9, 2016, Rick Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine, posted a story on his Election Law Blog about the motion for enforcement of the August 10 court order filed by the private (non-Department of Justice) plaintiffs in Veasey v. Perry. These plaintiffs were reacting to this August 26, 2016, news story (as quoted in the private plaintiff’s motion):
[Harris County Clerk Stan] Stanart says he will investigate everyone who signs that form to assure they are not lying. Whether anything happens, that’s up to the [Harris County District Attorney’s Office]. But after the votes are counted and the election ends, Stanart said his office will be checking to see whether a person who signed the sworn statement has a Texas Department of Public Safety-issued ID through the DPS database.” Meagan Flynn, Harris County Clerk Will Vet Voters Who Claim to Lack Photo ID, HOUSTON PRESS, Aug. 26, 2016.
So to recap: As of late August in a presidential election year, the chief election official in Harris County, the most heavily populated county in Texas, was quoted as intending to investigate voters who claim they lack photo I.D.s.
That threat of punitive or retributive investigation prompted the federal district court in Corpus Christi to issue on September 20 a legal order, in which the court told the State to clarify and make explicit that voters who reasonably lacked photo I.D. were legally entitled to an alternate method of qualifying for a regular ballot.
But then in the hearing on September 22, just two days after the court order, the State was still discussing the option of criminal investigations and prosecutions of voters without photo I.D.s, in order to satisfy a Republican state legislator’s concerns about the effective enforcement of the State’s photo I.D. law.
And the statements of the Director of Elections reassuring Representative Schofield that voters who vote without photo I.D. can be tracked and investigated echoed the statements made in August by Harris County Clerk Stan Stanart.
II. BACKGROUND — WHAT’S ALL THIS ABOUT “REASONABLE IMPEDIMENT”?
After the conservative Fifth Circuit appellate bench ruled that the State of Texas had enacted a discriminatory voter I.D. law, the federal district court in Corpus Christi that has been handling the photo I.D. suit (Veasey v. Perry) issued a judicial order on August 10, 2016, to remedy the immediate effects of the discriminatory law.
The plaintiffs in the ongoing lawsuit relating to voter I.D. then filed a motion informing the district court judge that the state’s officials were misrepresenting the court’s directive. (see, e.g., the Texas Tribune‘s September 7, 2016, story).
The August 10 judicial order had provided that voters who could not “reasonably” obtain an acceptable form of photo I.D. could substitute the use of some other forms of identification if they completed a “declaration of reasonable impediment.” The Elections Division at the Texas Secretary of State’s Office did not include the word “reasonably” in training materials, the agency’s website, and voter information posters, leaving the impression that the only voters who could access alternative forms of identification were those who were absolutely unable to get the photo I.D.
Omitting the word “reasonably,” which had been specifically included in the district court’s August 10 judicial directive, may seem like a minor editorial alteration. But in making that omission, the State gave the plaintiffs the impression that State officials were dragging their feet in response to the August 10 court order.
The Department of Justice summarized the problem in its September 6, 2016, motion to enforce the August 10, 2016, remedial order as follows:
The District Court responded as follows (from the September 20, 2016, court order):
Fifth Circuit Orders En Banc Review of Texas Voter ID Suit
Ari Berman analyzes the effects of the Fifth Circuit’s March 9, 2016 order. This is bad news for the plaintiffs, and for Texas voters generally. The foot-dragging has been especially galling, given the airtight factual evidence in support of the plaintiffs’ arguments.
(Note to the non-attorneys out there: the linked article explains this, but not everyone knows what “en banc review” means. After five months of delay, the court has collectively decided that the previous decisions regarding the State’s unconstitutional voter I.D. law need to be reconsidered by the entire panel of all the Fifth Circuit appellate judges, the majority of whom happen to be conservative political appointees).
As an additional follow-up; the Fifth Circuit Court of Appeals has rebuffed arguments for stopping implementation of the unconstitutional law until after the whole body of judges hear additional oral argument later this year. The law will likely continue to be enforced through the November 2016 presidential election, despite the fact that it has been found to be unconstitutional.
Everyone Pretty Much Agrees – The 2016 Texas Primary Schedule Is Going To Be A Mess
Ah, Texas, sweet Texas. Badly-redistricted, voter-hostile Texas. Because the 2011 redistricting lawsuits still aren’t resolved, there is a general sense among election officials that one of two things will happen in the next two months:
- Either the Western District of Texas, San Antonio Division redistricting panel will be compelled to issue a new and more equitable redistricting plan for the State sometime prior to the candidate filing period, or
- Having failed to hold time in a bottle, the court will reluctantly apply the map used in the 2014 elections once again for 2016, notwithstanding the increasingly problematic and widening gap between that map and the actual state demographics.
The Republicans have a rather handy ace up their sleeve to shoot down the remedial application of any corrective court-ordered redistricting plan, and that ace is their faith in the misapplication of a little U.S. Supreme Court case called Purcell v. Gonzalez, 549 U.S. 1 (2006). The position of both the 5th Circuit and the conservative majority on the U.S. Supreme Court appears to be that because Purcell called for caution in the application of last-minute court orders that might affect election schedules, it therefore follows that court orders protecting voting rights must not be enforced if an election is right around the corner. And an election is always, always just around the corner.
Of course, that’s just stupid, as Justice Ginsberg more than adequately explained in her dissent in Veasey v. Perry on the eve of the November 2014 election. When actual harm is being done to voters through actual violations of the law, the violator should not be able to say, “Oh well. Sorry about breaking the law, but it’s so close to the election. We just don’t have time not to break the law.”
If the judicial redistricting panel is going to fix Texas districts, it needs to do so by no later than November of this year – owing to increasingly early candidate filing deadlines to accommodate the Texas primary elections, district boundaries need to be known by no later than … well … now, if you want to be precise about it. The first day to file for party precinct chair elections is Tuesday, September 15th. Yes, as in September 15th, 2015. As in two weeks. The first day for candidates to file is one month later, on November 14th. The deadline to file is December 14th. Yes, as in this year.
The Texas Tribune has a nice background piece on the looming problem. (Election Managers Partying Like It’s 2012). If I were king, I wouldn’t care whether the parties got to have primaries or not – primaries are private elections conducted by social clubs (i.e., political parties). Primaries are beauty pageants for candidate nominations, and there are all sorts of alternatives in place for picking party candidates – caucuses, nominating committees, etc. Could a court order disrupt the primaries? Well, such are the wages of sin; nobody asked the Legislature to do an illegal job of redistricting back in 2011.
On a related note, Rick Hasen nicely excoriates our fair state in this recent analysis for Slate Magazine. (Texas Two-Steps All Over Voting Rights).
On the 50th Anniversary of the Voting Rights Act – A New Study from Rice University Corroborates the Damage Caused By the Photo I.D. Law
Not that anyone should be surprised, but there’s this:
One nice thing about this study is the timing, given the work that now needs to be done to judicially reform Texas voting laws. With this study, the plaintiffs in Veasey v. Perry should be able to help the Federal district court judge get over the hurdle placed by the 5th Circuit Court of Appeals. This evidence helps reinforce the trial court’s previous ruling holding that the State intentionally discriminated against minority voters.
Texas Election Law Blog 