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Civil rights groups push back on bogus SOS letter

Good.

Still the only voter ID anyone should need

Lawyers with 13 organizations — including the Texas Civil Rights Project, the ACLU of Texas, the League of Women Voters of Texas and the NAACP Legal Defense Fund — are demanding that the state rescind an advisory sent to local election officials regarding the individuals whose citizenship status the state says the counties should consider checking. In a letter sent Monday, the groups requested a response by Jan. 30, claiming that the state’s data was flawed and demanding more information about the methodology it used.

Some of the groups are considering litigation against the state, said Beth Stevens, voting rights legal director for the Texas Civil Rights Project.

The letter comes three days after the Texas secretary of state’s office announced it would send local election officials a list of 95,000 registered voters who had provided the Texas Department of Safety some form of documentation, such as a green card or a work visa, that showed they were not citizens when they were obtaining driver’s licenses or an ID cards.

“Using such a data set to review the current citizenship status of anyone is inherently flawed because it fails to account for individuals who became naturalized citizens and registered to vote at any point after having obtained their driver license or personal identification card,” the lawyers wrote.

In their letter, the groups point to efforts in Florida that used similar methodology to create a list of approximately 180,000 registered voters that officials claimed were noncitizens based on records used when they obtained driver’s licenses. That fight ended up in federal court after more than 2,600 were mistakenly removed from the rolls after being classified as noncitizens. About 85 voters “ultimately proved actionable,” the lawyers wrote.

See here for the background. The letter to the SOS is here, and the letter they sent to all 254 county election administrators is here. The latter is both a public information request for “all records relating to the Advisory, including but not limited to the list of all individuals identified by the Secretary of State or Department of Public Safety as potential non-citizens, the Voter Unique Identifier for each of those individuals, and all communications and correspondence with the Secretary of State concerning the Advisory”, and a plea to not take any action “unless and until the Secretary of State has provided greater transparency on its procedures and ensured there are adequate safeguards for not identifying lawfully registered naturalized citizens.” The letter to the SOS lays out their demands for more information, and drops a little math on them:

Given that Texas Driver Licenses and ID Cards do not expire for a full six years after they are issued, the odds are quite high that this list of purported non-citizens includes tens of thousands of people who are now US citizens entitled to vote. Indeed, each year, between 52,000-63,000 Texans become naturalized citizens (roughly the same number of potential non-citizens you claim have voted in Texas elections over a 22-year period).1 Given that newly naturalized citizens have voter registration rates around 50%,2 it is reasonable to conclude that at least 25,000 newly naturalized Texans are lawfully registering to vote each year. Even if one assumes that not all naturalized citizens previously obtained driver licenses, and not all registered naturalized citizens registered immediately, it is easy to see how this would result in your office obtaining over 90,000 incorrectly identified matches.

Read them both. Given that Ken Paxton was sending out email earlier the same day screaming about thousands of illegal voters, I think the odds are very high this will wind up in court.

State has not appealed the voting rights case on language interpreters

Interesting.

Texas has spent years defending its voting laws in court, regularly appealing rulings that found state lawmakers violated the rights of their voters. So when a federal appellate court in August ruled against the state’s restrictions on language interpreters at the ballot box, it was easy to assume an appeal would follow.

But more than three months later, Texas appears to be conceding the case.

“We have not heard anything from Texas,” said Jerry Vattamala, director of the Asian American Legal Defense and Education Fund’s democracy program, who is representing the plaintiffs in the case. “It appears that they are not appealing.”

At issue in the case was an obscure provision of the Texas Election Code that required interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help.

In its August ruling, a three-judge panel of the U.S. 5th Circuit Court of Appeals affirmed a lower court’s finding that Texas ran afoul of the federal Voting Rights Act by restricting the interpretation assistance that English-limited voters may receive and that the law should be struck down.

The appellate court found that Texas’ “limitation” on a voter’s choice “impermissibly narrows” rights guaranteed by a lesser-known section of the Voting Rights Act under which a voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.

“The problem remains that the Texas provisions expressly limit the right to the act of casting a ballot,” the judges wrote in August. “It should go without saying that a state cannot restrict this federally guaranteed right by enacting a statute tracking its language, then defining terms more restrictively than as federally defined.”

The Texas attorney general’s office, which is representing the state in court, for weeks has been unable to confirm whether its lawyers are appealing the ruling or letting stand the lower court ruling.

“At this time, we cannot confirm or deny any filings sent to the Supreme Court,” Kayleigh Lovvorn, a spokeswoman for the AG’s office, said last week. Instead, she pointed the Tribune to a link to the 5th Circuit’s August ruling on a free, online courts database.

But two weeks past a deadline to appeal to the U.S. Supreme Court, the clerk’s office for the high court has not received a filing for the case. A clerk for the 5th Circuit confirmed the case is closed at the appellate court, and no recent filings appear on the case’s docket at the lower district court where the case originated.

See here for the last update. I don’t know if this means that no further appeals are possible or if it just means that it’s too late for the current SCOTUS term. I also have no idea why the AG’s office has not pursued this. Whatever the merits of an appeal by them may be, it’s not in Ken Paxton or Greg Abbott’s nature to let something go. Whatever the reason, I’m happy with the outcome.

Fifth Circuit rules against Texas’ voter interpreter law

Good.

Texas ran afoul of the Voting Rights Act by restricting the interpretation assistance English-limited voters may receive at the ballot box, a federal appeals court found.

In an opinion issued Wednesday, a three-judge panel of the U.S. 5th Circuit Court of Appeals ruled that an obscure provision of the Texas Election Code that requires interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help clashes with federal voting protections.

That Texas law, the court found, violates a less-known section of the Voting Rights Act under which any voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.

Texas had argued that its interpreter requirement was meant to be “supplemental” to the VRA, but the appellate court ruled that the state’s “limitation on voter choice” instead “impermissibly narrows” the voting rights guaranteed by federal law.

“The problem remains that the Texas provisions expressly limit the right to the act of casting a ballot,” the judges wrote. “It should go without saying that a state cannot restrict this federally guaranteed right by enacting a statute tracking its language, then defining terms more restrictively than as federally defined.”

[…]

The interpreter voting law has been on hold since last year when U.S. District Judge Robert Pitman scolded the state for “arbitrarily” restricting voters with limited English proficiency. On Thursday, the 5th Circuit judges agreed with that judge’s ruling, but they sided with the state in determining that Pitman’s injunction on the law was too broad. Pitman must now take the case back up and reconsider the language he used in blocking the interpreter law.

See here, here, and here for the background, and here for a copy of the opinion. Basically, the district court judge’s opinion was upheld, with the injunction being vacated with a remand “for the entry of a new injunction, if appropriate, consistent with this opinion”. There were bills introduced in the Lege to address the issues in the lawsuit, but as far as I know they went nowhere. Maybe next time. Until then, we’ll see what the district court does, and if the state appeals. That’s quite the losing streak in voting rights-related cases we’re on here, isn’t it?

Bill to fix voting interpreters considered

This needs to happen, and it really shouldn’t be a big deal.

Sen. Sylvia Garcia

Almost three years after Mallika Das, a naturalized citizen who spoke Bengali, was unable to vote properly because she was not proficient in English, Texas lawmakers are considering a change to an obscure provision of Texas election law regarding language interpreters.

Members of the Senate State Affairs Committee on Monday took up Senate Bill 148 by Democratic state Sen. Sylvia Garcia of Houston, which would repeal a section of the state’s election code that requires interpreters to be registered voters in the same county they are providing help.

The measure will ensure that voters are able “to meaningfully and effectively exercise their vote,” Garcia told the committee. “This ensures that voters have the capacity to navigate polling stations, communicate with election officers and understand how to fill out required forms and answer questions directed at them by any election officer.”

Garcia’s proposal comes amid an ongoing legal battle over the state’s interpreter provision in a lawsuit brought by the Asian American Legal Defense and Education Fund on behalf of Das, who has since died, and the Greater Houston chapter of the Organization of Chinese Americans.

Because she had found it difficult to vote in the past, Das in 2014 brought her son, Saurabh, to help her cast her vote at a Williamson County polling place. But when her son told poll workers he was there to interpret the English ballot for his mother, they ran into the state’s interpreter requirements. Saurabh could not serve as an interpreter for his mother because he was registered to vote in neighboring Travis County.

[…]

One provision of the state election code allows for “assistors.” It says voters can receive help reading or marking a ballot and states that assistance “occurs while the person is in the presence of the voter’s ballot.”

Yet a separate provision allows voters to select an “interpreter” to help them communicate with an election officer and “accompany the voter to the voting station for the purpose of translating the ballot to the voter.” The interpreter, unlike an assistor, must be registered to vote in the same county.

In Das’ case, had her son simply told poll workers he was “assisting” his mother — and not that the assistance involved interpreting the ballot for her — he would have been able to go into the voting booth with her.

Garcia’s proposal would essentially consolidate all forms of assistance and remove any requirements related to voter registration.

While the measure has picked up support by the Texas Association of Election Administrators, representatives with the Harris County Clerk’s Office, including Ed Johnson, testified against Garcia’s proposal.

“In Harris County, we think the role of an interpreter is different to the role of an assistant,” Johnson said, adding that the issue was a currently a “moot point” because the law has been put on hold and court is “still working through that process.”

See here, here, and here for the background. The lawsuit in question is being appealed to the Fifth Circuit, but if Sen. Garcia’s bill were to pass, it would (I assume) moot the issue. I honestly don’t get the argument against this, but that doesn’t mean Stan Stanart isn’t going to do Stan Stanart things. Sen. Garcia’s bill was left pending in committee, and an identical bill by Rep. Ramon Romero was not withdrawn from the House Elections Committee schedule, so there has been no action taken yet. Contact your Senator on the State Affairs Committee if you want to see this bill get passed.

More on the latest voting rights lawsuit ruling

Coverage from the Chron:

In contrast to the discourse over the voter ID law, it’s not clear there are many political stakes over the law [Judge Robert] Pitman tossed out Friday.

There are enough Hispanic and Latino voters in every county in Texas to mandate Spanish-language assistance at polls across the state, so Friday’s ruling does not apply to that segment of the population.

Instead, the interpreter case largely hones in on Asian Americans and other minorities in Texas, who in the vast majority of counties do not comprise enough of the population to require language-assistance at the polls, and thus often rely on interpreters. Many times, these voters are elderly and grew up speaking another language, [Jerry Vattamala, director of the Democracy Program at the Asian American Legal Defense and Education Fund and one of the attorneys on the case] said, and rely on children, sometimes even minors, to be their interpreters and helpers at the polls.

Vattamala said that in Texas, Asian Americans vote equally for both Republicans and Democrats.

[…]

Pitman’s ruling Friday may be particularly significant in the Houston area, which has a large Asian population. While he did not have specific numbers, testimony in the case indicated that several voters in the Houston area have not been allowed to bring interpreters into the polls.

In a statement Tuesday afternoon responding to questions about the case and its impact on Harris County, a spokesman for county clerk Stan Stanart’s office said Stanart is “in favor of following the law. He has asked that we follow the law as mandated by the court and required by the Secretary of State.”

The statement indicates that voters will now be able to use “interpreters of their choosing” barring limitations prescribed by other laws that prohibit a voter’s employer or labor union representative to be their interpreter.

The spokesman, Hector DeLeon, said in the statement that the county makes ballots and elections materials available in English, Spanish, Vietnamese and Chinese.

“We also have advisory groups for Spanish, Vietnamese and Chinese that engage the leadership in those communities to help educate the registered voters about the election process,” DeLeon said. “These groups meet to maintain close contact to engage the community, to find bilingual poll workers and to educate the public during an election cycle.”

See here and here for the background. Vattamala’s statement about how Asian-Americans vote in Texas is one for which I’d be very curious to see some detailed polling data, which unfortunately I rather doubt exists. We know that nationally in 2012, Asian-Americans voted for President Obama at a higher rate than Latinos did, something like 78-21 in the President’s favor. That doesn’t mean it was the same here – “Asian-American” is a very wide designation, covering many diverse nationalities, and as Latinos in Texas vote Republican at a higher rate than their counterparts elsewhere, it’s certainly possible the same holds true for Asian-Americans. I don’t know, and with all due respect I’m not sure that Jerry Vattamala has access to anything more than a deeper well of anecdotal data. I’m just saying I’d love to see some real data, with sufficient samples of varying nationalities to be able to draw good conclusions.

Back to the decision itself, the Texas Election Law Blog gives us some historical context on this:

The Texas Election Code is a mess, as I’ve pointed out before. Our election laws are a cruel jumble born of mean-spirited political expediency, sloth, torpor, and ignorance. One particular piece of work within this ramshackle edifice of vote 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-immigration 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.

Here’s a copy of the ruling, from that post. The key here is that the original plaintiff who needed the assistance, Mallika Das, was voting in Williamson County, while her son/interpreter, Saurabh Das, was registered in Travis County. When he told the election officials that, he was not allowed to act as interpreter for his mother. Everything else followed from there.

Anyway, it is unclear at this time if the state will appeal Judge Pitman’s ruling, so barring any further action people who need some language help at the ballot box can bring an interpreter of their choosing with them. Which is how it should have been all along.

The UT admissions lawsuit

I haven’t paid much attention to the latest lawsuit over the University of Texas’ admissions standards and practices – as with school finance lawsuits, I’ve lost count of how many there have been in my lifetime – but there are some interesting issues in this one to be decided.

On its surface, the case of Abigail Noel Fisher v. University of Texas revolves around whether the school’s consideration of race in admissions led to the rejection of a white student.

But as the case nears the Supreme Court’s fall docket, it is also stirring a debate about the impact of affirmative action policies on Asian-American students and casting a spotlight on the stereotype of Asian-Americans as “the model minority.”

On one side, Fisher and her supporters, including the 80-20 National Asian American Educational Foundation, argue that the race-conscious admissions policies discriminate against qualified Asian-American students in favor of less-qualified African-American and Latino students.

On the other side, a coalition of more than 100 Asian-American groups has filed briefs backing the UT-Austin policy, saying it benefits Asian-American students who come from disadvantaged backgrounds.

“UT’s process of individualized review advances its compelling interest in achieving the educational benefits of student diversity, increases the likelihood of admission for those who do not have the same social mobility and capital as others, and has the potential to benefit all Asian-American and Pacific Islander applicants,” a brief filed by the Asian American Legal Defense and Education Fund (AALDEF) states.

[…]

Asian-American supporters of the UT policy point out that the bulk of students admitted under the holistic criteria are Asian-Americans and whites.

In 2011, 60 percent of incoming freshmen admitted based on the holistic criteria rather than the top 10 percent rule were white and 16 percent were Asian-American.

By comparison, 10 percent were Hispanic and 3 percent were African American, according to UT enrollment statistics.

“It seems to me that the system works,” said Madeline Y. Hsu, director of the Center for Asian American Studies at UT-Austin.

The lawsuit stems from the fact that Fisher was not admitted to UT in 2008 and was instead forced to attend LSU. I can’t honestly say that I see such a fate as being genuinely injurious to her, but we’ll have to leave that up to the Supremes. The “holistic” policy mentioned came about as a result of the last lawsuit, and it seems like a reasonable approach to me, one that I daresay is employed by numerous private universities. We’ll see what SCOTUS thinks.