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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):
State Law That Limited Interpreters at Polls Struck Down
As I’ve noted before, the Texas Election Code is a mess.
Our state election laws are a cruel jumble, much of it born of mean-spirited political expediency, sloth, torpor, and ignorance.
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.
Redistricting Panel Shoots Down Plaintiffs’ Request For Injunctive Relief
This isn’t breaking news — the redistricting panel’s order came out November 6, and the Texas Tribune and various editorialists have already weighed in on the implications. (See also this coverage from Texas Lawyer).
In particular, Jody Seaborn’s editorial in the Austin-American Statesman expresses everything I feel about the decision, only better. Jody also points out how the delays in the 2012 primary schedule ultimately produced Ted Cruz’s primary runoff victory over the more moderate David Dewhurst. (Disclosure: Jody and I are old friends.)
The federal judicial redistricting panel charged with reviewing the State’s 2011 redistricting plan (yes, that’s not a typo. 2011), has responded somewhat petulantly regarding an effort by a subgroup of the plaintiffs in the Perez v. Perry redistricting litigation who joined together in a motion to enjoin the State from using gerrymandered district boundary lines for the 2016 U.S. House of Representatives elections.
For a good overview and analysis of the origin, development and philosophy of this gerrymandering (cleverly described as a “Perrymander” by various wags), see this excellent article by Rosemarie Unite, The Perrymander, Polarization, and Peyote v. Section 2 of the Voting Rights Act, 46 Loy. L.A. L. Rev. 1075 (2013) (pdf). Also available in on the web at http://digitalcommons.lmu.edu/llr/vol46/iss3/7).
The subgroup of the plaintiffs that petitioned—including the League of United Latin American Citizens (LULAC ), the NAACP, the City of Austin, Travis County, Eddie Rodriguez Jr., Shannon Perez, the Quesada plaintiffs, et al., but excluding the Latino Redistricting Task Force, the United States Department of Justice, and the various congressional officeholder plaintiffs—had hoped to light a fire under the panel by asking for an injunction against the use of the redistricting plan that had been used in the November 2014 election (presumably hoping that the panel would either completely redraw the district maps, or at the very least prohibit the use of the bad maps).
Instead, the redistricting panel announced that the bad maps would most assuredly be used for the 2016 elections, stating that new maps at this late date would be unduly disruptive and confusing to voters and office seekers.
So sorry, petitioners.
See this statement from page five of the redistricting panel’s denial of a request for injunctive relief:
The Court has been working diligently and has made substantial progress toward resolution of the claims on the 2011 plans; however, it has not yet reached a final decision. Trial on the merits of the claims against the 2013 plans has not been scheduled, and legal challenges to the 2013 plans will not be resolved before the 2016 election cycle.
This unanimous denial could have been subtitled, “Redistricting Panels Have Feelings Too, You Know.”
The panel explicitly countered criticism that the judges have been dragging their feet on a resolution.
One can’t help but feel that there’s a little bit of passive-aggressive retribution in the decision. As in, “Oh! You think we haven’t been working fast enough to resolve your redistricting problems? Well how about this? How about we just declare that we won’t bother fixing any of this until the 2018 elections? Yeah! That’ll teach you to pressure us about coming up with some sort of consensus regarding your maps.”
This denial is frustrating on many levels. The State of Texas made no real effort to argue that its 2011 and 2013 maps weren’t discriminatory toward minority voters.The State’s argument, grounded and based solidly on a line of U.S. Supreme Court cases relating to so-called “partisan gerrymandering,” beginning with Davis v. Bandamer, 478 U.S. 109 (1986), Vieth v. Jubelirer, 541 U.S. 267 (2004), and League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) is, more or less, we don’t discriminate against Hispanics and African Americans because of race, but because we, the line-drawing Republican Party majority, want to crush the Democratic Party, and therefore any seemingly discriminatory line-drawing was not intentional.
You can see this argument reflected throughout the State’s proposed finding of fact and conclusions of law, as well as the State’s pre- and post-trial briefs. For example, on page 56 of the State’s proposed findings of fact and conclusions of law, finding of fact number 518 states that the chairman of the Texas House Redistricting Committee felt he could not pass a redistricting plan unless he guaranteed that three of the four new U.S. House of Representatives seats for Texas would go to Republicans. Later, on pages 100-101 of the same proposed finding of fact and conclusions of law (starting around proposed conclusion 45) the State argues for findings of fact that the Texas redistricting plan was motivated by political, rather than racial, discrimination, and was therefore not part of an invidious intentionally racially discriminatory scheme.
And the redistricting panel (which for those of you who are new to the story, consists of the three-judge panel convened in May of 2011 out of the membership of the San Antonio division of the Federal District Court for the Western District of Texas, as explained in this handy blog post from the wonderful (and greatly missed) Texas Redistricting and Election Law blog) has made as explicit as it possibly can that the most glaring of demographic problems with the State’s Congressional and State legislative district maps are not going to be fixed in time for the 2016 elections. That fact leaves just two federal election cycles (2018 and 2020) before the next redistricting maps get drawn.
Particularly for Hispanic voters in Texas, 2011–2021 is shaping up to be the lost decade for both U.S. House of Representatives representation, as well as for representation in the Texas Legislature, notwithstanding the fact that the population gains experienced by the State were overwhelmingly the result of increases in the population of protected classes of linguistic and racial minorities.
Lighting A Fire Under the Redistricting Panel – Plaintiffs Seek Injunctive Relief From San Antonio Federal Court
As Rick Hasen has reported, yesterday the plaintiffs in the 2011 redistricting lawsuit asked the three-judge panel for the Western District of Texas, San Antonio Division to enjoin the State of Texas from using the patently illegal district boundary lines that were used in the 2014 election.
Evidence-wise, the plaintiffs have a slam-dunk on this one – the State has lost at every turn with respect to the question as to whether the 2011 redistricting violated Section 2 of the Voting Rights Act; and there isn’t any serious disagreement on the facts – the State enacted a redistricting plan that was motivated by racial animus in order to limit the voting rights of racial minority groups.
For some reason that has never been explicitly articulated, the court appears to be paralyzed and unable to move on this issue. Possibly the members of the redistricting panel fear that any dramatic change in boundary lines will draw a disastrous results-oriented Supreme Court rebuke that might leave the plaintiffs in an even-worse position. but that doesn’t really justify the timidity with which the court has approached this matter. Whatever the motivation, the risk is now quite high that just as with the Texas elections in 2012 and 2014, the 2016 primaries and general election might be conducted using bad maps.
As I said before in reference to the November 2014 elections, the use of maps that have been explicitly found to violate Section 2 of the Voting Rights Act is not in keeping with judicial economy. That is true in part because bad maps are an early Christmas present to any losing candidate in any election in any of the affected urban areas in the State (particularly around the major population centers).
Heads up, election litigators – if your candidate has strong support among minority voters in 2016, but loses on these maps, you have been handed a ready-made, pre-briefed reason to contest the outcome of that unsuccessful election. And every contested election has at least one losing candidate, so somebody’s going to get creative if the court doesn’t get its act together.
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.
How Would I Have Argued For Texas on the Emergency Stay Issue?
Attorneys representing the State of Texas on the picture I.D. law have a tough job, a fact that I should probably emphasize from time to time – an attorney isn’t the client, but just the conduit for the client’s assertions. Heck, back in the day, I did legal work defending the denial of insurance, retirement and disability benefits in circumstances that would corrode your soul, so I do have empathy for those toiling in the Office of the Devil’s Advocate.
So maybe I was a little mean about the Texas Solicitor-General’s 74-page bolus of overripe stew in defense of keeping the voter I.D. law in place for the November 2014 election. A fair riposte to my skewering of that brief would be to ask, “So, smart guy. How would YOU defend the patently indefensible voter I.D. law?”
Here’s how:
- First, no matter what argument I made, I wouldn’t take 74 pages to lay it out. That’s just embarrassing and sloppy. C’mon guys, it’s called a “brief” for a reason.
- Second, in general, I wouldn’t bother to defend the voter I.D. law. at all, because that’s not the issue before the court. I wouldn’t attack the factual findings of the trial court; I wouldn’t bring up any of the patently offensive (and sometimes factually false) arguments in favor of the voter I.D. law. The issue before the Supreme Court isn’t “Was somebody mean to the widdle-bitty State of Texas? Did that meany-weeny district court go and issue a mean, nasty decision against Texas?”
- The issue before the Court is, “Did the 5th Circuit Err in Suspending the Effect of the Corpus Christi Trial Court’s Injunction Against the Use of Texas Picture I.D. Laws in the November 2014 Election? It was provocative, dangerous, and hot-headed for the State to rave on and on about how bad the trial court’s decision was. Instead, I would have recommended just saying something like this:
- “After the trial court made its findings of fact and conclusions of law, it issued a clarifying order at the request of the State. In that order, the judge added an immediate injunction against the use of the existing I.D. law. In so ruling, the judge failed to describe any considered analysis of the balanced costs and benefits to the parties resulting from the issuance of such an injunction.”
- “If briefing had been invited by the trial court relating to the costs of imposing the injunction, the State of Texas would have presented evidence that the suspension of the voter I.D. law at this remove from the start of the election would cost the State an estimated $5 million in opportunity costs, wages and other labor costs, and materials. Additionally, local costs to each of the county election offices in Texas would amount to an aggregate amount of between $4 and $12 million, resulting in an increase of roughly $7 in the per-vote expense of conducting the election (assuming a turn out of roughly 20% of the total number of registered voters (2.4 million ballots), and an increased administrative expense of up to $17 million aggregated across all government jurisdictions conducting elections in November).”
- “In failing to account for the administrative costs, the trial court’s order failed to engage in the sort of factual analysis required when making judicial alterations in the manner in which an election is conducted. Purcell v. Gonzalez, … [cite omitted].”
- “Therefore, the State moves that the emergency stay be upheld, and that the substantive issues relating to the administrative burdens imposed by the injunction should be remanded to the trial court for further proceedings not earlier than a date on or after the conclusion of the November 6, 2014 general election.”
See? Easy … inoffensive … and brief. Rather than proudly defending the indefensible (and by embracing over-the-top rhetoric, echoing the nutty tone of the state’s worst racists and lunatics), I would focus on a narrow procedural issue.
Frankly, I think even this issue is a loser – the plaintiffs can simply say, “Okay, the administrative burden increased. But the harm caused by the enforcement of the picture i.d. requirements (i.e., the State’s ongoing violation of the Fourteenth Amendment) is so overwhelming, and of such grave consequence to the integrity of the election, that the additional expense associated with the injunction pales to insignificance against that harm.”
If the voter I.D. law is enforced due to the emergency stay, every losing candidate in the November 2014 election in Texas will have potential grounds for filing election contests immediately afterwards, simply by arguing that within the context of each of those elections, it will be factually impossible to determine whether the outcome of those elections reflects the will of the voters who would have voted but for the continued enforcement of the illegal voter i.d. requirement.
You want to talk about administrative expense – there’s an administrative expense. Consider the disruption, as every single race (and especially every close race) becomes subject to an election contest in state district court, with quite good chances of success for those suits that are competently argued.
That’s every school district board race, every water district bond race, every county, district, state, and federal race.
Consider a hypothetical candidate running for the office of Mayor in a small town in the November 2014 election.
When the dust settled after the election, Candidate Loser had 110 votes, and Candidate Winner had 127 votes.
Now assume that the town’s demographics are (for the sake of making the math easier) roughly similar to the state demographics (i.e., about 12% African-American, about 40% Hispanic, and about 48% white). Assume that the town has 1,000 residents of voting age, and of those residents, 120 are African-American, and 400 are Latino or Hispanic, for a total of 520 members of a protected class of minority voters, or at least potential voters.
Assume that the total number of registered voters in the town is 800. Of those voters who are registered to vote, Loser determine that 34 (9% of 384 of the voters) are white residents who lack adequate I.D., 24 (25% of 96 of the voters) are African-American residents without sufficient I.D., and 51 (16% of 320 of the voters) are Hispanic residents without sufficient I.D. (The percentages reflect the statistical tendencies not to have sufficient I.D. Notice that there are statistically significant differences among particular groups when tested for adequate I.D., and these differences are based on race).
Let’s assume that if those residents had I.D., they would have voted in the same proportion as the qualified voters with sufficient I.D.s. Turnout was 237 out of 800 registered voters, or 29.625%. So that’s ten missing white votes (roughly 30 percent of 34), 8 missing black votes (roughly 30 percent of 24), and 15 missing Hispanic votes (roughly 30 percent of 51).
Now, the margin by which Loser lost was 17 votes, and there are 33 people who would have voted, but for their lack of adequate I.D. Maybe not all of these voters would have voted for Candidate Loser. But suppose Candidate Loser was disproportionately favored by minority voters – through interviews and exit polling, Loser has determined that black and Hispanic voters were significantly more likely to favor that side of the ticket. Of the 33 “gave-up, no reason to try to vote” voters, 23 were minority voters. But Loser only needs to find 18 more votes.
Assuming Loser mounts a competent election contest, Loser can simply ask to be declared the winner. Or, if there’s no money and time to subpoena I.D.-less registered voters, Loser can at least raise enough doubt about the integrity of the election to force a new election. Voila!
Meanwhile, the disenfranchised voters in Smalltown all have a civil cause of action against the State of Texas for violating their voting rights.
Now, pull upward and away from Smalltown, to take in a larger view. Observe the glimmering street lights and lighted houses across the state – the clumps of population strung like beads along the roads. All those towns … (around 1,100, although admittedly not all may be having elections). All those school districts (also roughly 1,100, most of them forced by recent changes in the law to conduct their elections in November of even-numbered years). All those water districts (1,600). All those hospital districts, and library districts, and road districts, and airport authorities, and special law districts (who knows the numbers for sure? Let’s say 350 to be conservative). All those counties (254), with their multitudes of offices up for election (two commissioner seats, county judge, various district court judgeships, etc). All those state legislative districts (181, of which roughly 168 are up for election). All those U.S. House of Representatives seats (36). All of those statewide offices (Governor, Lieutenant Governor, Attorney General, various seats on the Texas Supreme Court and Court of Criminal Appeals, Land Commissioner, et cetera, ad nauseum).
All those elections. All those thousands of elections.
Now, put yourself in the position of the Texas Secretary of State. Can you say with confidence that none of those elections are going to be squeakers? Are you sure that the margin of victory for all the winning candidates in those many, many elections are going to be so large that no loser could possibly argue that they would have won, but for the loss of the disenfranchised vote.
Because what the 5th Circuit has stupidly done is open the door to a tidal wave of election-related litigation.
In a typical election year, there will always be a few local election contests – maybe a school bond election here, a city council election there. Maybe one or two high-profile contests involving multi-county races. The number of suits is limited by the difficulty of accessing the courts, and the difficulty (usually) of being able to show causation – that a particular screw-up in the conduct of the election led to the wrong outcome.
But all bets are off for 2014, baby. Because if there are voters out there about whom it can be fairly said that they would have voted but for the imposition of the voter I.D. requirements, then let the flood gates of election litigation open wide, and swallow incalculable sums and staggering amounts of time and energy, affecting the state courts, local and state government, and every voter. Imagine waking up on November 5th to newspaper headlines announcing that all of Texas lies under a thick pall of uncertainty, disjunctive lack of continuity in office, and overwhelming distrust of the accuracy of the election outcome.
It will be like Christmas, Thanksgiving, and the Fourth of July for any lawyer with an interest in election-law litigation.
No Duh … Federal Judge Strikes Down Draconian Voter I.D. Law
As expected, the Federal District Court in Corpus Christi has found that the Texas voter I.D. law is an unconstitutional burden on the voting rights of minority voters and constitutes a poll tax.
As further expected, the court’s decision also finds that the State intentionally discriminated against minority voters. As a result, the court indicates that it will issue additional orders following a status conference.
I expect that the State will need to do preclearance submissions pursuant to the terms of a court order under Section 3(c) of the Voting Rights Act for at least the foreseeable future.
Gosh, I hope the Elections Division at the Texas Secretary of State kept all of its Section 5 paperwork, file cabinets, file shelves, and materials for preclearance submissions. It’d be a shame if they had to start up again from scratch.
And, as expected, Greg Abbott has invoked “voter confusion” as the impetus for seeking a quick suspension of the decision from the 5th Circuit Court of Appeals (also known as The Worst Circuit).
By the way, doesn’t it strike you as a bit … conflict of interest-ish … for an actively campaigning candidate for governor to ask a federal court for political favors on the eve of an election?
Notably, the U.S. Supreme Court (in reversing the 7th Circuit order that reinstated Wisconsin’s voter i.d. law) signals that at least a majority of the justices still adhere to the traditional common-law doctrine that courts should not impose last minute judicial orders affecting voting.
Rick Hasen and others refer to this as the “Purcell” doctrine, a shorthand reference to a 2006 Arizona voting case, Purcell v. Gonzalez, wherein the U.S. Supreme Court blocked a last-minute injunction against enforcement of an Arizona voter i.d. law.
Whether this cuts for or against Texas remains to be seen, although I tend to agree with Justin Levitt that the 147-page decision in Veasey v. Perry is “Purcell-proofed.” It isn’t a spur-of-the-moment injunction of the sort that was disapproved of in Purcell – (1) it’s a thoroughly vetted and fact-heavy decision on the merits following a lengthy trial, and (2) it does not impose any resource-intensive or difficult change to an existing process, but merely relieves the State of an existing administrative burden. At this point, a court order reimposing the Texas voter i.d. requirement would look more suspect from a Purcell-based analysis.
Here are the links, for those of you using web readers:
http://www.brennancenter.org/sites/default/files/legal-work/TX_voter_ID_decision_100914.pdf
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A352-Wisconsin-voting-order-10-9-14.pdf
http://electionlawblog.org/?p=66643
http://electionlawblog.org/?p=66613 (I cited Justin Levitt’s blog entry twice, because I liked it so much).
http://moritzlaw.osu.edu/electionlaw/litigation/documents/ArizonaVoterIDCaseSCtGrantCert.pdf
What Does Holder’s Resignation Portend for Voting Rights Advocates?
As you know, it’s been widely reported in the national press that after six years as President Obama’s Attorney General, Eric Holder is stepping down. There are all sorts of messages that one can read in the tea leaves here – to the extent that Holder has been an effective A.G., he’s also been a favorite target of criticism from the far right, and it’s possible that as the midterm elections loom, President Obama is trying to neutralize some of that criticism.
The Department of Justice is a huge agency, and I’m sure that anyone working there would agree that it’s not a perfect place – certainly the criminal investigation and criminal prosecution arms of the Department have had their ups and downs over the past half-decade.
Similarly, I’m sure that the rank-and-file employees of the Voting Rights Section could, in moments of candor, express dissatisfaction with one or another aspect of the Department’s management. But no matter what opinion one may have of Attorney General Holder, and regardless of one’s political affiliations, one must agree that the Department of Justice has responded aggressively and consistently with respect to voting rights litigation after Shelby County v. Holder.
I think that on balance, Attorney General Holder’s resignation presages both a bruising confirmation fight for his successor (as predicted by every major media source), and a hit to the Voting Section’s employees’ morale.
Currently, the trial attorneys working for the Department in high-profile cases like the Texas 2011 redistricting case, the Texas voter I.D. case, the Ohio voter registration case, the Wisconsin voter I.D. case, the North Carolina voter I.D. case, and many other less visible voting rights cases, are doing absolutely stellar courtroom work, in both their filed motions and pleadings, and in the oral advocacy that they are doing.
Even if they aren’t interested in the issues being contested in these suits, law school students would do well to study and emulate the lucidity and organization of the Department of Justice-authored briefs that have been filed in these cases. This is top-notch, major league lawyering by many of the nation’s best civil rights litigators.
Such excellent work is possible in part because of the political and institutional support supplied to the Voting Section by Attorney General Holder. My fear is that the Republicans will now shift their resources away from attempting to defend their frankly indefensible restrictions on voting, and instead will use the Senate confirmation hearings to cripple voting rights advocacy.
For instance, here are a couple of illuminating pull quotes from the USA Today story about the A.G.’s resignation:
Majority Leader Mitch McConnell, R-Ky., a Holder critic, said Republicans would scrutinize the next nominee to make sure he or she “finally returns to prioritizing law enforcement over partisan concerns.”
Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee, urged Obama to take his time. “Rather than rush a nominee through the Senate in a lame-duck session, I hope the president will now take his time to nominate a qualified individual who can start fresh relationships with Congress,” he said.
“Prioritizing law enforcement over partisan concerns” should be read between the lines to mean “abandoning voting rights litigation,” because for decades, Republicans have characterized enforcement of the Voting Rights Act as a purely liberal Democratic Party concern.
And “I hope the president will now take his time to nominate a qualified individual” should be read as meaning, “After the November election, and with an (expected) Republican-led House and Senate, President Obama can kiss goodbye any hope of ever getting Senate confirmation of any nominee he chooses from now until the end of his term.”
My hope is that as Attorney General Holder leaves office, his status as a lame-duck head of the Department of Justice will free him to some extent to end his tenure with bold, fearless policy actions. Like maybe … I don’t know … boldly pushing for the enactment of a proposed Civil Rights Act-based set of administrative rules designed to curb the worst excesses of post-Shelby County restrictions on voting. That’s what I’d suggest.
For those of you using web readers, here are the cited links:
http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/
Brennan Center for Justice Offers the Best Gavel-to-Gavel Coverage of the Texas Voter I.D. Trial
A number of online media outlets have sent reporters to Corpus Christi to cover the opening of Veasey v. Perry (the consolidated federal lawsuit contesting implementation of the 2011 Texas voter I.D. law), but for my money, the most detailed and accurate day-to-day coverage of the trial is coming from the Brennan Center for Justice at NYU (available at http://www.brennancenter.org/texas-voter-id-trial.
I’m guessing that mainstream news coverage is likely to flag and falter a bit as the trial continues for the next three weeks or so, simply because the trial schedule is a little too languid and stretched-out to generate sustained interest across multiple news cycles. That’s a shame, because while there may not be showy rhetorical fireworks every day of the trial, the meat of the evidence lies in a series of expert reports that make for surprisingly good reading (at least for fans of public policy analysis and massive demographic surveys – and hey, that’s all of us here, right?) (Highlights include Dr. Gerald Webster’s report, here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey5162.pdf, Dr Barry Burden’s rebuttal of the State’s experts, here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey5152.pdf, and Drs. Barreto and Sanchez’s rebuttal of the State’s experts, here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey520.pdf).
It’s no secret why the Brennan Center is providing a constant twitter feed, daily recaps of testimony, detailed trial background stories, and profiles of the key witnesses and evidence as they are presented. The attorneys for the Brennan Center are insiders who have a dog in the hunt – they represent one of the plaintiffs in NAACP et al. v. Steen et al., which was consolidated with Veasey v. Perry for the sake of judicial economy, and so the Brennan Center staff are intimately aware of the ebb and flow of the trial, coordinating their legal arguments with the arguments being made by the other plaintiffs.
The Brennan Center’s coverage is by necessity biased strongly in favor of the plaintiffs’ arguments, and so in this respect its website coverage differs from an objectively neutral reporting of the trial. Normally, inherent bias would make me hesitate to recommend this sort of “press release” news coverage offered by a party to a lawsuit, and I would favor more neutral sources, such as the Moritz College of Law repository (which scrupulously offers all documents from both sides of a dispute, and never editorializes or favors one side or another) (the Veasey v. Perry documents are available at http://moritzlaw.osu.edu/electionlaw/litigation/VeaseyV.Perry.php).
However, party bias in reporting is less of a problem in Veasey v. Perry than it would be in most other lawsuits, given that the defendant State of Texas has more-or-less capitulated with respect to the evidentiary elements of the lawsuit. In other words, (and obviously with a few quibbles), the State apparently concedes that the plaintiffs’ descriptions of the facts are more-or-less accurate.
Rather than offering anything more than a token rebuttal of the plaintiffs’ evidence, the State apparently takes the position that as a matter of law, a photo I.D. requirement (even if such a requirement imposes a disproportionate financial burden on minority voters, or disproportionately discourages minority voters from voting) isn’t illegal per se, but is justified as long as there is public support for more restrictive voting procedures. In other words, it is irrelevant (in the State’s view) whether there actually is any danger of illegal voting or not – what is critical is whether or not the bulk of voters (i.e., the non-poor, non-minority voters) are in favor of imposing an additional burden on voting.
In other words, the State of Texas is arguing that while the 2011 picture I.D. law may be a discriminatory, ineffectual and badly-conceived law, and while the law may or may not be intentionally badly-conceived, it is not an intentionally discriminatory law.
The State has claimed (as an affirmative defense) that Texas is unfairly picked on by the Department of Justice, and that this lawsuit is being mean, and stuff. (at http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey4481.pdf). For a stinging rebuttal of this argument, see: http://moritzlaw.osu.edu/electionlaw/litigation/documents/veasey4911.pdf. As any person who has presided over a child’s temper tantrum knows, the defensive rejoinder that someone is “being mean, and stuff” is rarely relevant or germane to the issue at hand, and that general observation holds true in this case.
Today’s Coverage of the Texas Voter I.D. Trial
Veasey v. Perry has gotten a fair bit of media attention (as it should, given the importance of this litigation), with some pull quotes from the opening statements, and a little bit of background on the purpose and effect of the 2011 voter I.D. law adopted by the Texas Legislature. (Rick Hasen at electionlawblog.org offers links to the the major news outlet coverage, here: http://electionlawblog.org/?p=64883, http://electionlawblog.org/?p=64861, http://electionlawblog.org/?p=64847, and here http://electionlawblog.org/?p=64859. I’m quoted here: http://www.bloomberg.com/news/2014-09-02/texas-voter-id-trial-seen-as-test-for-restoring-u-s-oversight.html
As with all stories involving voter I.D., the comments sections of online sources reflect the knee-jerk defenses of the adoption of picture i.d. requirements. Most of these defenses can be rejected out-of-hand as meaningless or irrelevant to the debate over restrictions on voting.
Internet Talking Points on Voter I.D.
1. Voter I.D. is no big deal – since everybody’s gotta have I.D. anyway.
This is the kind of argument made by someone who hasn’t actually read the 2011 Texas law, which excludes the use of many forms of I.D. that voters might actually be able to scrounge up. It’s also the kind of false generalization that one can easily fall into when one has sufficient means and resources to have a driver’s license, a commonplace-seeming sort of picture I.D. that is unavailable to a significant segment of the voting population.
2. Poor people must have I.D. because otherwise they couldn’t cash their welfare checks.
This fairly distasteful argument conflates a number of stereotypes (implying that the “poor” are a monolithic group of welfare recipients who are simply being obstructive, slyly hinting that Texas voter I.D. laws keep the riff-raff from voting, and ignoring the distinction between the broad range of acceptable I.D. for financial transactions and the narrow range of acceptable I.D. for participating in the democratic process in Texas).
3. We had to do something to make sure the illegals didn’t vote.
This quite inflammatory statement perpetuates the falsity that (1) illegal immigrants subvert elections, and (2) that voter impersonation and illegal voting would occur but for the protections offered by the Texas picture I.D. law. Of course, the statement also panders to bigots, and encourages the broad stereotyping of immigrants as threatening, seditious outsiders plotting our downfall.
The quality of online debate being what it is, one is justified in regarding supporters of the 2011 Texas voter I.D. law with weary resignation. A rejoinder with links to reputable sources isn’t likely to cause any committed bigots to go through a “road to Damascus” conversion experience, where the scales fall from their eyes and they renounce their prior ignorance.
But once in a great while, formerly ignorant persons will throw off their shackles and open their eyes, sometimes because of a personal experience that leads to an epiphany, and sometimes because a seed of doubt is nurtured by an inherent suspicion of appeals to authority.
In the hope that at least some supporters of the 2011 Texas law could imagine that they might be wrong, I offer the following links to reputable sources:
An Overview of Pending Voter I.D. Litigation
Goldfeder, Jerry, and Myna Perez, “Proving Who You Are: The Legal Battle Over Voter I.D. Laws” (N.Y. Law Journal, June 4, 2014) (available at http://www.stroock.com/SiteFiles/Pub1495.pdf).
The Incapacity of Voter I.D. Laws to Significantly Affect Actual Election Fraud
Gilbert, Michael, “The Problem of Voter Fraud” (SSRN draft, pending publication in Columbia Law Review, 2015) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2488645).
Pitts, Michael, “Empirically Measuring the Impact of Photo I.D. Over Time and It’s Impact on Women” (SSRN draft, pending publication in Indiana Law Review, 2015) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2479500).
The Lack of Evidence of Actual In-Person Illegal Voting
Levitt, Justin, “A comprehensive investigation of voter impersonation finds 31 credible cases out of one billion ballots cast” (Washington Post, August 8, 2014) (available at http://www.washingtonpost.com/blogs/wonkblog/wp/2014/08/06/a-comprehensive-investigation-of-voter-impersonation-finds-31-credible-incidents-out-of-one-billion-ballots-cast/).
The Discriminatory Impact of Voter I.D. Laws
Bentele, Keith, and Erin O’Brien “Jim Crow 2.0? Why States Consider and Adopt Restrictive Voter Access Policies” (Perspective on Politics, Dec. 2013, pps. 1088-1116) (available in draft form at http://cdn.umb.edu/images/cla_p_z/Jim_Crow_2_0_-_Bentele.pdf).
Barreto, Matt, Steven Nuno, and Gabriel Sanchez, “The Disproportionate Impact of Voter I.D. Requirements On the Electorate – New Evidence From Indiana” (available at: http://faculty.washington.edu/mbarreto/papers/PS_VoterID.pdf).
As my high school history teacher liked to say, “Use your god-given brains, people!”
Texas Election Law Blog 