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The State of Texas Is Legally Prohibited From Supplying Confidential Voter Information to Kris Kobach
As you may know, Kansas Secretary of State Kris Kobach has sent a letter to the state voter registrars in all 50 states, asking for a broad range of both public and private personal information about registered voters. The Brennan Center for Justice has the details here: https://www.brennancenter.org/press-release/brennan-center-states-examine-legal-obligations-providing-voters-personal-information
As the Brennan Center reports:
Kobach’s letter, reportedly sent to every Secretary of State in the country, asked for extensive details including: “the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.” His letter also stated that “any documents submitted to the full Commission will also be made available to the general public.”
(For more information about President Trump’s commission on “voter fraud” see this recent Slate story by Rick Hasen).
Secretary Kobach’s request is so broad, in fact, that in his position as the Secretary of State of Kansas, he can’t respond to the portion of the request asking for voters’ social security numbers (as noted here).
Similarly, under Texas law, certain information collected from voters as part of the voter registration process is confidential and cannot be disclosed. In failing to submit an affidavit relating to the purpose of the request, and in requesting social security numbers, Secretary Kobach’s request does not comply with Texas law.
I should also note that (per both the Texas Election Code and laws relating generally to public information requests) the State of Texas imposes a prerequisite reasonable fee for producing a copy of the statewide voter registration list. If Secretary Kobach amends and conforms his request to comply with Texas law, he will also need to pay for the list.
The following statutes are relevant:
Section 13.004(c), Texas Election Code:
The following information furnished on a registration application is confidential and does not constitute public information for purposes of Chapter 552, Government Code:
(1) a social security number;
(2) a Texas driver’s license number;
(3) a number of a personal identification card issued by the Department of Public Safety;
(4) an indication that an applicant is interested in working as an election judge; or
(5) the residence address of the applicant, if the applicant is a federal judge or state judge, as defined by Section 13.0021, the spouse of a federal judge or state judge, or an individual to whom Section 552.1175, Government Code, applies and the applicant:
Section 18.066, Texas Election Code:
(a) The secretary of state shall furnish information in the statewide computerized voter registration list to any person on request not later than the 15th day after the date the request is received.
(b) Information furnished under this section may not include:
(1) a voter’s social security number; or
(2) the residence address of a voter who is a federal judge or state judge, as defined by Section 13.0021, or the spouse of a federal judge or state judge, if the voter included an affidavit with the voter’s registration application under Section 13.0021 or the applicable registrar has received an affidavit submitted under Section 15.0215.
(c) The secretary shall furnish the information in the form and order in which it is stored or if practicable in any other form or order requested.
(d) To receive information under this section, a person must submit an affidavit to the secretary stating that the person will not use the information obtained in connection with advertising or promoting commercial products or services.
(e) The secretary may prescribe a schedule of fees for furnishing information under this section. A fee may not exceed the actual expense incurred in reproducing the information requested.
(f) The secretary shall use fees collected under this section to defray expenses incurred in the furnishing of the information.
(Emphasis added).
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?”
***
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):
The Fifth Circuit Decision in Veasey v. Perry Bends Over Backwards to Help the State
As other commenters have pointed out, today’s decision upholding the determination that Texas violated the Voting Rights Act is a painfully contorted partial affirmance and remand to the trial court for a remedy. (The link is to the copy of the opinion provided on Rick Hasen’s blog).
The appellate court in effect has said, “Well, Texas doesn’t always charge for birth certificates now (thanks to a mildly remedial law passed in the 2015 legislative session), so we think the picture ID requirement isn’t a poll tax. And … we think the trial court relied too much on an historical record of racial discrimination in Texas. That’s just mean. So … we’re remanding the decision to see if the trial court can find any more evidence of current racial discrimination. We grudgingly admit that the Texas picture ID law is illegal, but we’ll leave it to the trial court to figure out a way to carefully invalidate only those portions of the law that are bad. Which might not be the whole law.”
It’s really a terrible decision in a lot of ways; a sort-of wishy-washy agonized small-voiced acknowledgment that Texas broke the law, mixed in with page after page of carefully-worded dismissal of the mountains of factual evidence of intentional racial discrimination that prompted the law’s development in the first place.
Gosh. All that historical stuff just leaves the Court woozy and afraid that maybe the trial court was too hard on poor old Texas.
Gentle Criticism of the Day: Has Everybody Come Down With a Case of the Stupids?
Hmm. That may have come across as a little harsh. There are three topics in particular that seem to have distracted a number of otherwise-intelligent political correspondents. To say that they have all gotten a case of the stupids is not particularly fair, but what can I say? I’m feeling a little crabby lately.
1. The Ivory Tower Comes To Perry’s Defense! Or With Enemies Like These, Who Needs Friends?
Okay, I would have loved to be a fly on the wall as Governor Perry’s criminal defense attorneys negotiated with various parties to put together their bipartisan dream team of constitutional law scholars who jointly wrote to decry Perry’s criminal indictment for misuse of his office.
The secret ingredient for assembling this coalition was convincing a bunch of law professors that the Travis County District Attorney’s Office was indicting Perry because he had exercised his authority to veto legislation; that effort was likely aided by the flurry of national news stories all reporting that Perry was being indicted because he had vetoed a budget item.
“Mon dieu!” the professors all said, absolutely aghast that anyone would be so, … so, … barbaric as to actually criminalize a gubernatorial veto. “That’s terrible! What an abuse of the criminal process, to dare to criminalize the very instruments of government! To inform a sitting Governor that the mere act of vetoing legislation is illegal! Outrage! Despair! Ennui!”
Sigh. If these towering geniuses of constitutional law had actually bothered to do the class readings, they would have discovered that the criminal charges against Perry are not based on the fact that he vetoed state funds for the Public Integrity Unit at the Travis County District Attorney’s Office.
The criminal charges against Perry are based on the fact that Perry used threats in an effort to intimidate the Travis County D.A. and suborn a number of criminal investigations, including pending investigations of Perry’s own government. That the threats were actually followed up by a veto is more or less irrelevant to the criminal act itself. In fact, if Perry had just quietly vetoed the funding without having engaged in snaky bits of quid-pro-quo threats, no charges would have been filed.
See the difference?
It’s subtle, I know, but I’m confident that with the help of careful tutoring and some time hitting the books, even the slowest constitutional law expert can be guided to the correct answer.
But really, people. Don’t raise your hand in class if you haven’t bothered to brief the case.
2. Dark Money Isn’t That Bad, Right? Right?
Sometimes, statistical analysis can be used to justify genuinely odd theories. In particular, Alan Abramowitz, a clever, clever analyst for “Sabato’s Crystal Ball” blog at the Center for Politics website did a regression analysis of the correlation between the disparity in dark money for U.S. Senate races with the outcome of those races in support of the argument that campaign spending didn’t “buy” the election for the Republicans. Except …, the study’s author forget that when you add two apples and three oranges, the answer is not five apples.
The gist of the argument is that differential spending levels, in and of themselves, could only be seen to predict or track election outcomes with a correlation of .23 (i.e., if one were predicting outcomes solely based on campaign spending differentials, one would get the right answer only one time out of five), while incumbency of a Democratic Party candidate was an accurate predictor with a correlation of .76 (i.e., if one were predicting outcomes solely based on whether an election involved a Democratic incumbent running against a non-incumbent challenger, one would get the right answer nearly three times out of four).
Can you spot the error?
The error is one of false equivalency, and of a failure to control for hidden correlations between dark money spending and the encouragement of conservative challengers to Democratic incumbents. In other words, the clever, clever study has proceeded on the assumption that the victories against Democratic Party incumbent candidates were not in any way the result of dark money donations that roused otherwise restive conservative challengers to those Democratic Party candidates.
What was the mistake? The error lay in failing to identify a control sample wherein Democratic Party candidates lost their elections when no dark money whatsoever had influenced competition for the office. Instead, we could just as validly conclude from this superficial analysis that a tidal wave of conservative dark money swept all liberals before it.
The study ultimately only confirms a tautology, that all other things being equal, Democratic Party incumbents got absolutely shellacked in the November 2014 election. Well, duh.
The only interesting result of the study is that it suggests that conservative dark money might have been spent more efficiently than liberal dark money (i.e., that in terms of absolute spending levels, conservative candidates with smaller war chests than their liberal opponents did comparatively better than one would predict, based solely on the proportionate difference in funding between any two candidates, and that the size of the war chests wasn’t what determined victory).
What I want to know is the answer to a simpler question. In particular races, did the existence of a dark money source (of any amount) sway the outcome of the election? But that’s a harder question to answer, because the person creating such a study actually has to go out and discover not only how much money a campaign raised, but also the specific tactical uses to which that money was put.
Therefore, I don’t think my assertion that the election was bought and paid for by conservative dark money has been refuted, at least not by this study.
3. Aw, Picture I.D. Laws Ain’t That Bad, Right?
I’m a little troubled that Professor Hasen seems to have been involuntarily enlisted by the right in support of this argument. Among certain writers who are striving to appear thoughtful and even-handed about the 2014 election, there is a trend to argue that (1) restrictive new voting laws energized turnout among minorities, and that (2) ultimately, one cannot show that the historically poor turnout in the 2014 election had anything to do with voter I.D. laws, so therefore it must be the case that the new laws aren’t as bad as everyone has made them out to be.
Note that Professor Hasen wasn’t saying that voters weren’t suppressed, but merely that Wendy Weiser’s off-the-cuff remarks about the North Carolina races in 2014 didn’t offer clear evidence of voter suppression. His call for greater rigor in statistical analysis isn’t the same thing as an endorsement of the view that voter I.D. laws are hunky-dory.
Such displays of intellectual gymnastics are truly thrilling. To leap and bend and twist in such a way as to refute all meaning, and then wait for the thunderous applause of a grateful nation. “Oh thank you! We thought these new laws were not only bad, but damaging. You’ve shown us that they are merely bad, but that they haven’t caused any harm. What were we worried about?”
Sigh. Again. Sigh.
Okay, here’s some intellectual subtlety to wrap your noggin around, geniuses. A bad voter I.D. law (such as the bad voter I.D. law passed by the Texas Legislature in 2011) can simultaneously do two things in an election. It can (1) terrify politically aware and savvy minority voters and drive those voters to the polls, (2) actually function to effectively bar eligible voters from casting a valid vote, and (3) suppress turnout by discouraging voters from participating in the election.
Um. How can someone simultaneously acknowledge that turnout in the 2014 election was the lowest in any national election in living memory, while also asserting that the effects of voter suppression (including new voter I.D. laws) had no measurable effect on voter participation? C’mon, people.
I’ll grant you that the “science” of “political science” is a bit grandiose, given the inability to test certain causal hypotheses about historical events. But isn’t it just a tiny bit possible that improvements in relative minority turnout (i.e., that among a shrunken number of November 2014 voters, a relatively larger percentage of those voters were minority voters than in prior elections) could go hand in hand with successful large-scale vote suppressions that curbed turnout?
Until someone comes up with an argument based on actual scholarship, rather than just a “gut feeling” that the Brennan Center’s own studies of the suppressive effects of voting restrictions on the poor, the elderly, the young, and minority voters are somehow flawed, I’ll trust in the argument that laws designed to make it harder to vote can actually accomplish their intended goal, and make it harder to vote. I’ll further assume that because it was harder to vote in the November 2014 election, fewer people cast votes in the November 2014 election than would otherwise have done so in the absence of laws making it harder to vote.
I mean, people, please. Use your god-given brains for a second.
Anti-Voter Registration Laws And Criminal Investigations Prompted By the 2008 Presidential Election
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.
Pennsylvania Court Strikes Down Photo I.D. Requirements for Voting
As a possible precursor to additional legal fights over picture I.D. requirements for voting, a Pennsylvania state court has struck down that state’s photo I.D. requirements for voting. Central to the court’s decision was the factual finding that the so-called “free” I.D. available to the indigent had limited distribution.
Comparing the Texas and Pennsylvania laws, Texas is particularly vulnerable to this sort of factual determination. The extreme low number of free voter I.D.s issued by the Texas Department of Public Safety for the off-year November 2013 statewide constitutional amendment election highlights the weakness of the state’s position on this topic – given that a large number of voters lack sufficient i.d. (per the evidence in the statewide voter registration database of so-called “first-time I.D. voters”), a much larger number of voters should be requesting and receiving those I.D.s.
Texas Election Law Blog 