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One particular piece of work within this ramshackle edifice of voter suppression and general discouragement of the democratic process is Section 61.033 of the Election Code, which states that in order to serve as an interpreter for a voter who requires language assistance, “a person must be a registered voter of the county in which the voter needing the interpreter resides.”
The law, such as it is, has a long pedigree stretching back to 1918, (Act of March 23, 1918, 35th Leg., 4th C.S. Ch. 30 (H.B. 104), although a requirement that election officials could only communicate via English in the polling place was added by the Act of March 13, 1919, 36th Leg. Ch. 55 (S.B. 244), 1919 Tex. Gen. Laws p. 94), The 1919 law reflected a longstanding nativist fear (pumped up by anti-German sentiment after World War One) that some language other than English might intrude into the polling place; that fear is still reflected in Section 61.031(a) of the Election Code, which more or less tracks the xenophobia of the old 1919 law.
After the passage of the Voting Rights Act, the state law was softened to permit language assistance at the same time that multilingual ballots were provided.
But … while Section 208 of the Voting Rights Act provides that voters should be able to make use of language assistance of their own choosing, the state law still exhibits a weird reluctance to help voters out by imposing that pesky have-to-be-registered-to-vote-in-the-same-county-as-the-voter requirement on interpreters.
That restriction found in the state law was never defensible (given that it directly contradicts federal law), but it’s interesting that it took so long for a group of plaintiffs to find a test case to knock it down.
But … better late than never. On August 12, a federal district court in the Austin division of the Western District of Texas granted a motion for summary judgment on behalf of a group of plaintiffs against the State of Texas, and enjoined the State against enforcement of Section 61.033 of the Texas Election Code. NBC News covers the story here: “Federal Judge Strikes Down Texas Law That Violates Voting Rights Act.” And the text of the August 12, 2016 opinion (OCA Houston v. State of Texas, 1:15 CV-00679, Western District of Texas, Austin Division) is here, linked to scribd.com within the NBC online story.
The facts of the case highlight why it was a bad idea for the State of Texas to specify that interpreters had to be registered voters in the same county as the person that they were helping. A voter with limited English proficiency went into a polling place in Williamson County with her son, intending that her son would help her read the ballot. If the voter’s had been deemed to merely be offering “assistance” (i.e., help in marking the ballot), he wouldn’t have been challenged. But he was “interpreting” (i.e., translating the ballot), and the election workers at the polls determined that he could not do so, because he was registered to vote in Travis County, not Williamson County.
That’s a weird, restricting, artificial reason to thwart voter intent.
The smart move on the State’s part would have been to settle and accept an agreed judgment the instant that the lawsuit hit the transom — there is absolutely no upside to fighting this. We’ll see if common sense prevails.
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.
In my experience, the by-far single biggest and most pressing question posed by voters on Election Day is this: “Where do I vote?” The question, “What is on the ballot?” runs a distant second.
The best place to find the answers to those questions is not centralized at the state level. Voters are going to have to call someone locally to get a definitive answer, which is why the Texas Secretary of State provides a generally good list of phone numbers and contact information for the people administering county elections throughout the state. It is true that organizations and agencies have made heroic efforts to automate and provide polling place data for all voters throughout the state, but these efforts tend to be thwarted by last-minute emergencies and contingencies, errors, omissions, and misunderstandings.
Here is the last set of aggregated voter resource websites my wife asked about. These sites tend to focus on issue advocacy to the exclusion of answering voter questions. Many, many special interest groups, (as well as many lobbyists posing as grassroots special interest groups) post websites promising “tools and resources for voters” or something similar. Often the tools and resources amount to not much more than a “DONATE” button.
Significantly, political advocacy sites (in general) tend not to provide much in the way of actual voter assistance of a practical sort. I suspect that this is because voter assistance is localized, difficult to automate, and time-consuming.
As elections approach, these sites proliferate for good and ill. Some do make a stab at providing sample ballots or polling place information, but none would be my choice if I actually wanted to find out where and when to vote.
Some examples include:
(League of Conservation Voters – a national conservation advocacy group)
(Netroots Foundation – political campaign strategies for progressive interests)
(Voter Participation Center – formerly Women’s Voices, Women’s Votes – organized voter registration of traditionally underrepresented populations. The whole focus seems to be on building VPC’s mailing list and database for targeted voter outreach).
(Video Game Voters – this website is a good example of “astroturfing,” in this case from a video game industry trade association).
“Astroturf” in this context is a slightly derogatory political insider slang term for an industry lobbyist posing as a humble grassroots organization – so called because an astroturfed organization, like the eponymous artificial turf, has fake grassroots. Astroturfing is a way of repackaging political advocacy to make it look more popular.
At least Video Game Voters is quite open and honest about itself as a lobbyist arm of the video game industry. More insidious forms of astroturf also exist – wherein earnest-seeming organizations troll for political support by appearing to tap into nonexistent voter bases, or function mostly as money-laundering fronts for repurposed political donations.
My wife sent me a collection of websites for voters, and asked me to make editorial recommendations. Here is the first of the three aggregating sites she asked about (I’ll write about the other two in subsequent posts):
(1) CraigConnects voter protection
Yes, it’s the Craig of Craigslist. Mr. Newmark is concerned about voter suppression (mostly as the result of changes in election laws and policies). The links provided are an interesting mix, and include the Brennan Center (national surveys of voting requirements, policy analysis and surveys), the League of Women Voters, Rock the Vote (which almost seems quaint these days), a “get out the vote” initiative for Latino and Latina voters (votolatino), the Federal Voting Assistance Program (the Department of Defense-managed program for overseas and military voters), and the somewhat more exuberant and partisan Generation Progress.
The only critique I might offer is that in general these links are sort of high level. What I mean is that the websites are useful sources of advocacy for better access and treatment of voters, but (with the exception of the League of Women Voters local chapter links) for the most part they aren’t really designed to answer the most common questions that voters have on Election Day – namely, “Where do I vote?” and “Who is on the ballot?”
From a little digging around, a voter can get those questions answered, but the best sources for base-level questions about where and when to vote (especially in heavily-decentralized Texas) tend to be local. More on that later.
Here are my wife’s notes regarding what voting-related materials she found on the craigconnects.org site.
* “Brennan Center for Justice: The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice.
* “Generation Progress [formerly Campus Progress] is a national organization that works with and for young people to promote progressive solutions to key political and social challenges.
* “Cost of Freedom Project: The Cost of Freedom Project is a citizen-led initiative that has developed location-based apps to provide voters with information on how to obtain a voter ID.” [Appears to have been founded in 2012. No main site I could find. Facebook and Twitter feeds are active.]
* “Federal Voting Assistance Program: The FVAP provides U.S. citizens worldwide a broad range of non-partisan information and assistance to facilitate their participation in the democratic process – regardless of where they work or live.
* “Lawyers’ Committee for Civil Rights Under Law: The principal mission of the Lawyers’ Committee for Civil Rights Under Law, a nonpartisan, nonprofit organization, is to secure equal justice for all through the rule of law, targeting in particular the inequities confronting African Americans and other racial and ethnic minorities.
* “League of Women Voters: The League of Women Voters is a nonpartisan citizens’ organization that has fought since 1920 to improve our government and engage all citizens in the decisions that impact their lives. LWV was formed from the movement that secured the right to vote for women; the centerpiece of the League’s efforts remain to expand participation and give a voice to all Americans.
* “Voto Latino: Voto Latino is a nonpartisan organization united by the belief that Latino issues are American issues and American issues are Latino issues; Voto Latino is dedicated to bringing new and diverse voices into the political process by engaging youth, media, technology, and celebrities to promote positive change.”
As a fundamentally (and perpetually) naive person, I am repeatedly surprised and dismayed by electoral fraud and corruption. But my naivety aside, such corruption unquestionably exists, and from time to time Texas-flavored election crime surfaces in national awareness, as in the case of three Donna, Texas politiqueras who were charged with vote-buying in a contentious school board election. (described in this January 12, 2014 New York Times article).
In the Rio Grande Valley, and particularly in local elections, politiqueras (“runners” or vote-farmers) are central players in the voting process. These are influential or aggressive campaigners who are paid to deliver elections, and who as a group have a tarnished reputation for buying or stealing votes. It would be easy to paint all politiqueras as villains, but unfortunately the reality is more ambiguous. Politiqueras exist out of need; in the best light, they actually do assist voters with rides to the polls, help in filling out absentee ballot applications, and election information, even as they steer the voters toward a predetermined goal. Many are successful not because they are bullies (although some do make effective use of threats or violence) but because they are well-known, generous, and trusted, or at least respected and feared. These positive qualities allow even the most venal politiqueras to craft convincing self-justifications for what they do.
I could not do justice to the subject of vote-farming in one or a hundred blog posts, and the sociopolitical narrative of politics, social class, race, and culture is one that deserves a library and lifetime of study. Instead, I want to focus on one interesting aspect of corruption, and that is how vote-farmers adapt their tactics to changes in state law and state enforcement.
In 2006, the Texas Attorney General announced an initiative to pursue election fraud, and set aside funds and personnel from the Special Investigations Unit to target longstanding illegal election practices. In addition to prosecutions and investigations, the Attorney General also sent attorneys and law enforcement officers across the state to educate local officials about election-related crimes.
As a consequence, some county election administrators employed heightened vigilance in discouraging candidates and campaign workers from assisting elderly voters in the voting booth, either questioning whether the voters actually qualified for assistance, or challenging the extent of the assistance being offered. (see Sections 64.031-64.036, Texas Election Code, relating to voter assistance at the polls).
In response, some politiqueras began using “curbside” voting procedures (per Section 64.009 of the Election Code) more aggressively. Candidates and campaign workers had a long and checkered history of offering rides to the polling place as a means of gathering votes. Many voters genuinely need and benefit from getting a ride to the polling place, but the risk of voter intimidation, or the possibility that a candidate can imply that a voter should “pay” for the ride by voting in favor of the campaign that provided the car causes no end of trouble, and for many years it was illegal for candidates to personally drive people to the polls.
With campaign workers being subjected to greater scrutiny in the polling place, politiqueras were reported to increasingly rely on having the election workers come out to administer voting for a busload of people at the curb. The curbside voting law doesn’t require that a voter pass some test or exhibit some condition proving inability to enter the polling place, and the curbside voting law isn’t enforced through criminal penalties like those applicable to assistance of a voter in the voting booth. With a busload of voters safely under the watchful eye of a campaign driver, a candidate can still achieve the goal of directing the votes, without all the bother of completing affidavits of assistance for each voter in sequence, and without enduring the stink-eye from suspicious poll watchers and election clerks.
As the law evolves, so too evolve the habits of politiqueras. I predict that the next hot area for election fraud will be military voting, especially given the broad relaxation of standards for electronic transmission of ballots to military voters (per the Military and Overseas Voter Empowerment Act, and the state law implementation of that law).