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voter ID

The fruit of the poisoned tree

If the discriminatory intent of the Texas redistricting was no biggie, then surely the discriminatory intent of the voter ID law is no biggie too. Right?

Still the only voter ID anyone should need

In a motion filed Wednesday, the Texas attorney general’s office asked U.S. District Judge Nelva Gonzales Ramos of Corpus Christi to reconsider her findings that the state’s voter ID law was enacted to purposefully discriminate against voters of color. An appellate court has already upheld the law, but — in light of the Supreme Court’s ruling — the state is now trying to convince the judge to reverse her findings of discrimination in the voter ID case in order to eliminate the possibility of a return to federal oversight of its election laws.

In the filing, the state argued that the 2011 voter ID law that opponents first challenged as discriminatory has now “changed significantly” and pointed to the 5th Circuit Court of Appeal’s findings that the Legislature “succeeded in its goal” of addressing discriminatory flaws in the voter ID law in 2017.

It cited the Supreme Court’s verdict on the congressional and state House maps as findings that “cast irremovable doubt” on previous decisions that the voter ID law was also crafted with a discriminatory intent.

The state contends that, like in the redistricting case, lawmakers should be extended the “presumption of legislative good faith” for working to replace a law that Ramos ruled disproportionately — and intentionally — burdened voters of color who are less likely to have one of the seven forms of identification that the state required them to show at the polls.

See here for some background. Ken Paxton is a third-class legal mind, but given the turd that SCOTUS laid on us in the redistricting case, he’s got a compelling argument. Unless someone can find a recording of Troy Fraser rubbing his hands together and cackling “This bill is SUPER RACIST, y’all” while the floor debate was going on, I’m not sure there’s any defense. The only solution is going to be a political one. There’s no other choice.

Fifth Circuit upholds voter ID changes

Ugh.

Still the only voter ID anyone should need

Amid efforts to prove Texas’ embattled voter ID law is discriminatory, a federal appeals panel on Friday OK’d state lawmakers’ efforts to rewrite the law last year to address faults previously identified by the courts.

On a 2-1 vote, a three-judge panel of the U.S. 5th Circuit Court of Appeals reversed a lower court’s ruling that tossed out the state’s revisions through Senate Bill 5. The lower court had said the changes did not absolve Texas lawmakers from responsibility for discriminating against voters of color when they crafted one of the nation’s strictest voter ID laws in 2011.

But the Legislature “succeeded in its goal” of addressing flaws in the voter ID law in 2017, Judge Edith Jones wrote in the majority opinion for the divided panel, and the lower court acted prematurely when it “abused its discretion” in ruling to invalidate SB 5.

The 5th Circuit panel’s ruling is a major victory for the state after years of losses in an almost seven-year legal battle over its restrictions on what forms of identification are accepted at the polls.

[…]

Key to the state’s defense was a change in the 2017 law that allows Texans without photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining the proper ID. Those voters could present documents such as utility bills, bank statements or paychecks to confirm their identification, but lawmakers also wrote into law that those found to have lied about not possessing the proper photo ID could be charged with a state jail felony.

Arguing before the 5th Circuit in December, attorneys representing the voting and civil rights groups suing the state said the “reasonable impediment” provision was a faulty remedy because of the possibility that voting “under the express threat of going to jail” would have a “chilling effect” on voters without photo ID.

They also pointed out that the list of permissible IDs remains unchanged under the state’s new ID law: a state driver’s license or ID card, a concealed handgun license, a U.S. passport, a military ID card, a U.S. citizenship certificate or an election identification certificate.

On Friday, the 5th Circuit panel sided with the state’s argument that Ramos’ decision to reject its revisions to the voter ID law was improper because a new law would require a new legal challenge, but the court did note that opponents of the law could still separately challenge SB 5 in the future.

Judge James Graves Jr. employed striking imagery to lay out his dissent to the majority opinion. “A hog in a silk waistcoat is still a hog,” he wrote before explaining that the original voter ID law was an “unconstitutional disenfranchisement of duly qualified voters.”

“SB 5 is merely its adorned alter ego,” he added.

With a loss in hand, opponents could be derailed in their efforts to persuade the courts to place Texas back under federal oversight of its election laws — a process called preclearance.

See here, here, and here for the background, and here for a copy of the opinion. The plaintiffs can and almost certainly will ask for an en banc rehearing, though the partisan makeup of the Fifth Circuit does not inspire confidence. They can also start the whole process over by filing a new lawsuit against SB5. This litigation began in 2011 after the original bill SB14 was passed, and it’s not over yet, so you can get some idea of how much longer this might get dragged out if we go down that path.

As usual, Rick Hasen has a good analysis of the ruling and its effect. The bottom line is that despite two findings by the district court of intentional discrimination, the Fifth Circuit has now said that the technical fixes of SB5, which were enacted under court pressure by the Lege, washes that sin away completely. Ross Ramsey recently wrote that no matter what ultimately happens at SCOTUS with redistricting, the Republicans have already won, because they will get four cycles out of maps that are basically what they drew and may at worst have one cycle with court-mandated “fairer” maps. No matter what happens from here, we’ve been operating under the original voter ID law or something not that far from it. There’s no price to pay for passing a discriminatory law, or potentially for passing discriminatory Congressional and legislative maps. Why wouldn’t any other Republican-controlled legislature do the same, given Texas’ experience?

As such, the only reliable solution going forward is a political one. We need to elect enough people who oppose voter ID to repeal this discriminatory, anti-democratic law. This is of course a long-term solution, but then a new lawsuit against SB5 would have something like a seven or eight year timeline based on the SB14 experience, with no guarantee of success. In the interim, we need to put more effort and resources into ensuring that people have what they need in order to be able to vote. It’s a travesty, but it’s our reality. We have no other choice.

Today is the last day to cure a provisional ballot

If you voted provisionally during the primary because you did not have an accepted form of ID in your possession when you voted, you need to “cure” your provisional ballot in order for it to be counted. From the inbox:

If a voter possesses an acceptable form of photo ID but does not have it at the polling place, the voter will still be permitted to vote provisionally. The voter will have six (6) days to present an acceptable form of photo identification to the county voter registrar, or fill out the natural disaster affidavit referenced in the Exemption/Exceptions section below, or the voter’s ballot will be rejected.

Alternatively, a voter who possesses an acceptable form of photo ID but does not have it at the polling place may choose to leave the polling place and return before the close of the polls on election day with said acceptable form of photo ID to, if the voter would otherwise qualify, vote a regular ballot at that time.

If you need more information on the cure process

CLICK HERE

or contact the Harris County Tax Office Voter Registrar Division at 713-274-VOTE (8683) for assistance.

Simply put, if you cast a provisional ballot, you need to get yourself to one of the Harris County Tax Assessor offices and show an accepted form of ID there for your ballot to count. Today is the deadline for that. To find a location, go to the Tax Assessor webpage and scroll down to the map of branch office locations. If you’re in a county other than Harris, do the same thing at your county’s elections office –
find your county’s elections page for that information. Today is the deadline for this, so act now if you voted provisionally. This only applies if you did not have an accepted form of ID when you voted. If you have any questions, call the Harris County Tax Office Voter Registrar Division at 713-274-VOTE (8683) for assistance.

Voter ID back before the Fifth Circuit

And the worst judge on the Fifth Circuit does her thing.

Still the only voter ID anyone should need

In Texas’ bid to keep its voter identification law intact, it was its legal foes — lawyers representing voting and civil rights groups and individual voters of color — who faced a tougher line of questioning Tuesday before a federal appellate court.

In light of recent revisions to the state’s voter ID law, two judges on the three-judge panel of the U.S. 5th Circuit Court of Appeals raised questions about claims that lawmakers intentionally discriminated against voters of color when they passed rules on which photo IDs can be presented at the polls. That intentional discrimination claim, which a lower court affirmed this year, is key to the case over the state voter ID restrictions.

“If there is nothing that says we are trying to advantage white voters … isn’t that proof that there wasn’t discriminatory intent?” Judge Edith Jones, a Reagan appointee, said of the plaintiffs’ lack of a smoking gun to prove purposeful discrimination by lawmakers, despite thousands of pages of memos and transcripts of debates over the voter ID requirements.

[…]

Texas lawmakers passed Senate Bill 5, which mostly followed the lead of temporary voter ID rules Ramos put in place for the 2016 elections in an effort to ease the state’s requirements.

Key to the state’s defense: The new law allows Texans without photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining the proper ID. Those voters could present documents such as utility bills, bank statements or paychecks to confirm their identification. Those found to have lied about not possessing the proper photo ID could be charged with a state jail felony, which carries a penalty of 180 days to two years in jail.

That revision “completely changes the nature of the law,” Texas Solicitor General Scott Keller told the judges on Tuesday, arguing the appellate court should dismiss Ramos’ August decision to toss that bill out, too. Ramos said SB 5 didn’t clear Texas lawmakers of discriminating against Hispanic and black voters when they passed the original law.

Attorneys representing the voting and civil rights groups suing the state asserted that the “reasonable impediment” provision was a faulty remedy to issues with the original law.

Voting “under the express threat of going to jail” would have a “chilling effect” on voters without photo ID who are more likely to be people of color, said Janai Nelson, an attorney with the NAACP Legal Defense and Educational Fund.

“What one hand gives, the other taketh away,” Nelson said of “reasonable impediment” addition.

See here for the long story. This is all about whether the law was intentionally discriminatory, in which case it would be thrown out in its entirity, or if the fix passed by the Lege remediates all that. This is going to go to SCOTUS, likely with an en banc stop along the way, so whatever happens here is not the last word. Some day this will all be over.

Paxton wants voter ID lawsuit to be over

I can think of one way he can make that happen. That’s not what he’s asking for, alas.

Still the only voter ID anyone should need

The fight over the state’s embattled voter ID laws should be over, Texas Attorney General Ken Paxton argued in a new court document filed late Tuesday.

Paxton, as expected, filed a brief with the U.S. Court of Appeals calling for the judges to end a challenge to the state’s new voter ID law for good. In his 101-page document, the Republican argued that because the state has already added new exceptions to the law to allow people who have a reasonable-impediment to getting an ID to still vote, the case should be officially concluded.

“This case should be over,” Paxton’s brief states.

[…]

[Judge Nelva] Gonzales Ramos ruled that forcing people to sign an affidavit under penalties of perjury could have a chilling effect on a voter. The supposed fix to the voter ID law, she ruled, merely traded one obstacle for another.

While the court battle continues, the courts have already ruled that in November the state’s voter ID requirements can be in effect, but still allow people to vote who can show the reasonable impediment – essentially the same as the revamped voter ID law, which does not go into effect until 2018.

See here, here, and here for the background. Paxton’s press release, with a link to the brief, is here. This is basically the crux of the case here: sure (the state argues), the original law may have had a few teensy problems, but we totally cleaned that up this session, so there’s no need for further action. There’s especially no need to ponder if the Lege had any discriminatory intent when it passed that first bill. All I can say at this point is it won’t be quick before we get a final answer.

No expedited appeal of voter ID

There’s no speeding this up.

Still the only voter ID anyone should need

A federal appeals court Tuesday declined to have all 14 judges participate in the appeal over the Texas voter ID law — a decision that will keep the issue unresolved heading into the 2018 elections, one judge said.

Civil rights groups, Democrats and minority voters who challenged the voter ID law as discriminatory had asked for the entire court to hear the appeal as a way to speed the case toward resolution.

The 10-4 ruling by the 5th U.S. Circuit Court of Appeals, however, means the appeal will be heard by the customary three-judge panel.

Writing in dissent, Justice Jerry Smith noted that the losing side will probably ask the entire court to review the panel’s decision in what is known as “en banc” consideration — a path the 5th Circuit Court took at an earlier stage of the case that, if taken again, would make it “impossible for a decision to be issued before some, if not all, of the 2018 elections are history,” he said.

“The lopsided vote to deny en banc hearing shows that the court has little appetite for disposing of this important case in advance of the beginning of the 2018 election cycle,” Smith wrote.

“The elephant in the room is Texas’s 2018 election schedule, which includes statewide primaries on March 6 (with early voting beginning February 20), municipal elections May 5 (early voting April 22), primary runoffs May 22 (early voting May 14), and the general election November 6 (early voting October 22),” Smith wrote.

See here for the background. The idea is that if the appeal is heard by the usual three-judge panel, whoever loses is going to ask for an en banc review anyway, so why not skip ahead to that? That’s not what we’re going to get, so the best we can hope for is a sense of urgency from everyone along the way. Oral arguments are set for the first week of December, and after that we’ll have to do a lot of waiting. Rick Hasen has more.

Fifth Circuit stays voter ID ruling

Ugh.

Still the only voter ID anyone should need

The state of Texas can use its revised voter ID measure for the upcoming November elections, a divided federal appeals court ruled on Tuesday.

The 2-1 decision, first reported by Politico Tuesday night, came from a panel of three federal judges on the Fifth Circuit Court of Appeals in New Orleans — and it marks the latest in a series of winding legal battles on whether the state has intentionally discriminated against black and Latino voters through its original voter ID law passed in 2011

[…]

In a joint order Tuesday, Judges Jerry Smith and Jennifer Elrod wrote that Texas “has made a strong showing that it is likely to succeed on the merits,” and added that the state has also “made a strong showing that this reasonable-impediment procedure remedies plaintiffs’ alleged harm and thus forecloses plaintiffs’ injunctive relief.”

The dissenting judge on the panel, Judge James Graves Jr., said it was still uncertain whether Texas would succeed — and pointed to the court’s ruling last year that a North Carolina voter ID law had been propelled by race and was never properly fixed.

See here, here, and here for the background, and here for a copy of the order. Rick Hasen explains where we stand now:

Given how each judge voted in the en banc ruling on the last round of the voter id case, nothing here is a surprise.

This is a ruling just by a motions panel; a separate merits panel will review the case in short order (the motions panel expedited consideration of the case).

There is still a long road ahead. The last time this went through it went en banc to the full 5th Circuit and took a while—so the status quo in the interim matters perhaps for how the 2018 elections will be conducted.

Plaintiffs could try to appeal this stay order to the Supreme Court, where they would probably face a tough audience, with perhaps Justice Kennedy in play.

That’s really what it comes down to, the 2018 election and what voter ID rules are in place. Look how long it took us to get to this point. All we can do is keep moving, there’s still more to be done. ThinkProgress and the Chron have more.

UPDATE: Oral arguments are set for the first week in December.

Trump’s Justice Department goes all in on voter ID

Despicable, but what did you expect?

Still the only voter ID anyone should need

Continuing a dramatic reversal on voting rights under President Donald Trump, the U.S. Department of Justice is asking a federal appeals court to allow Texas to enforce a photo voter identification law that a lower court found discriminatory.

In a filing Thursday, the Justice Department asked the U.S. 5th Circuit Court of Appeals to block a lower court ruling that the state’s new voter identification law — Senate Bill 5, enacted in this year — failed to fix intentional discrimination against minority voters found in a previous strict ID law, enacted in 2011.

[…]

Siding with Texas, the Justice Department says in its filing that the state has a “strong likelihood” of successfully arguing that SB 5 fixes discrimination in the old law. Allowing SB 5 to take effect will “avoid confusion among voters and election officials,” Thursday’s brief states.

The brief does not mention a key piece of Ramos’ rulings throughout the case: that lawmakers intentionally discriminated against Latino and black voters in passing its 2011 ID law. Findings of intentional discrimination typically allow for more sweeping remedies in court.

See here and here for the background. As we know, the Obama Justice Department was strongly opposed to this law, but Justice did a heel turn back in July under the new management. I note that like the AG’s office they decline to address the big honking klaxon in the room, that the 2011 law was enacted with discriminatory intent, which isn’t something that can be easily fixed with minor legislative tweaks. Seems like you have to really lean into the denial to make that case. Which doesn’t mean that it won’t work, just that it shouldn’t. It’s back to the Fifth Circuit for now.

UPDATE: And now we know that a three-judge panel at the Fifth Circuit has bought the argument and stayed Judge Ramos’ ruling pending the appeal. I was already heading to bed when that news broke. I’ll have a post about this tomorrow.

Texas appeals voter ID ruling

On to the next phase.

Still the only voter ID anyone should need

As promised, Attorney General Ken Paxton appealed what he called an “outrageous” federal court decision tossing out the state’s new voter ID law.

In a 25-page filing to the U.S. Court of Appeals for the Fifth Circuit Friday, the Republican attorney general argued the state complied with the court’s call to fix to the state’s voter ID law, which the court found to be discriminatory. But the a U.S. district court judge out of Corpus Christi on Wednesday struck down the law anyway, issuing an injunction permanently barring implementation of the law.

Texas lawmakers passed Senate Bill 5 this year as a remedy after the state’s last voter ID law got tied up in the courts and caused last-minute procedures for people to vote in the 2018 election and a directive lawmakers fix the law this year.

“Texas complied with all the changes to the voter ID law requested by the 5th Circuit, which should reverse the district court’s misguided ruling,” Paxton said in a statement. “Voter ID guarantees to Texas voters the opportunity to cast an in-person ballot and protects the integrity of our elections.”

See here for the background, and here for the press release and filings from the AG’s office. Paxton is also asking the district court for a stay on the ruling pending appeal. I’m sure that won’t be granted, but it’s possible the Fifth Circuit could do that. In the meantime, there’s the question about putting Texas back under preclearance, which could be a game changer.

Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, one of several groups challenging the law, wrote in an email that Wednesday’s ruling was especially powerful because Ramos did not even attempt to craft a remedial solution, such as a softened ID requirement. Recognizing the overwhelming taint of racial animus, Ramos simply struck the whole thing down. “Judge Ramos’ decision,” Clarke explained, “recognizes that a state cannot escape the consequences of its pernicious conduct without completely eliminating all vestiges of discrimination.” Put differently, Texas is effectively barred from imposing new voter ID rules for the foreseeable future.

[…]

Of course, the Supreme Court’s conservative majority could always intervene and prevent Texas from falling under preclearance by reversing Ramos. But such a decision would contradict the court’s own reasoning in Shelby County. Writing for the court, Chief Justice John Roberts explained that Congress’ preclearance formula was unconstitutional because it was obsolete, chiefly because it relied on old historical patterns rather than contemporary evidence. Ramos, in contrast, has now spent more than three years collecting and analyzing evidence that the Texas legislature purposely suppressed minorities’ right to vote. Her first 147-page opinion overflows with facts, statements, and data establishing that the Texas legislature intentionally discriminated against black and Latino voters—not only in the past, but also this decade, starting in 2011. Her follow-up opinions added further proof that the state is systematically suppressing minority votes.

If Roberts rejects Ramos’ judgment, he will have essentially acknowledged that Shelby County’s rationale was pure pretext. In his majority opinion he demanded evidence that racism is still alive in Southern statehouses; now he has it.

I wouldn’t put it past Justice Roberts to overrule Judge Ramos, but he will have to work for it. Remember, this is not the only possible cause for a return to preclearance. And also remember, preclearance doesn’t necessarily mean the Justice Department gets to be the arbiter of legality. The court could give that responsibility to the DC Circuit Court, which you may recall denied preclearance to both the voter ID law and the redistricting plans back in 2011. There’s a real chance the state has put itself in a box, one of its own making. Any restrictions that do get imposed will have been richly earned. The Observer has more.

Voter ID law thrown out

Fantastic.

Still the only voter ID anyone should need

A federal judge has tossed out a new law softening Texas’ strict voter identification requirements.

U.S. District Judge Nelva Gonzales Ramos on Wednesday ruled that Senate Bill 5, signed by Gov. Greg Abbott in June, doesn’t absolve Texas lawmakers from responsibility for discriminating against Latino and black voters when they crafted one of the nation’s strictest voter ID laws in 2011. The judge also ruled that the state failed to prove that the new law would accommodate such voters going forward.

[…]

Minority groups suing the state had asked Ramos to scrap SB 5, saying it still dripped with discrimination — largely because lawmakers did not expand the list of acceptable IDs.

Ramos agreed in her ruling Wednesday.

“SB 5 does not meaningfully expand the types of photo IDs that can qualify, even though the Court was clearly critical of Texas having the most restrictive list in the country,” she wrote. “Not one of the discriminatory features of [the old law] is fully ameliorated by the terms of SB 5.”

SB 5’s process for voters without proper ID, Ramos wrote, “trades one obstacle to voting with another—replacing the lack of qualified photo ID with an overreaching affidavit threatening severe penalties for perjury.”

The ruling also said Texas couldn’t be trusted to educate voters about changes to its ID law, following its widely criticized efforts ahead of elections in 2016 that were marked by confusion at the polls. She noted that Texas has claimed to spend $4 million on voter education before the 2018 elections, “but this stipulation is not part of SB 5 or any other statute.”

See here for the most recent update, and here for a copy of Judge Ramos’ order. Rick Hasen explains what this means.

To simplify things just a bit, when the district court first looked at this case, it determined that Texas’s voter ID law had a racially discriminatory effect, violating Section 2 of the Voting Rights Act, as well as a racially discriminatory purpose, violating the VRA and the 14th and 15th Amendment of the Constitution. When the case reached the Fifth Circuit on appeal, a sharply divided court sitting en banc (all of the 5th Circuit judges) agreed that the law violated Section 2 given its racially discriminatory effect. But the judges also held that the trial court had to reconsider the question of racially discriminatory purpose, because the court considered some evidence it should not have in evaluating purpose. The Supreme Court did not take a further appeal, with Chief Justice Roberts issuing a separate statement saying that the case was not really final enough to merit Supreme Court review.

For two reasons, it matters whether the courts find discriminatory purpose in addition to discriminatory effect. When there is just a discriminatory effect, the remedy is much narrower. In this case, the interim remedy was to tinker with the voter id law, such as allowing voters to file an affidavit explaining why they lack the necessary ID signed under penalty of perjury. With a finding of purpose, however, the entire law could (and today was) thrown out. Second, a finding of intentional discrimination can be the basis, under section 3c of the Voting Rights Act, to put Texas back under the preclearance provisions of the Voting Rights Act for up to 10 years, at the court’s discretion. The court has scheduled further briefing on the section 3c issue for the end of the month.

Today the court reaffirmed the discriminatory purpose finding, and held that the tweaks Texas made to its voter id law in a recent session did not solve the problem of discriminatory purpose. In some ways Texas made things worse. The affidavit requirement, for example, could intimidate voters given that many sections open up voters to prosecutions for felony perjury. The Court also noted that the new law did not include any money for voter education, which the court found crucial to a fairly applied voter id law.

As Hasen notes, the state will surely appeal, and unlike the redistricting case that will go to the Fifth Circuit, probably to an en banc panel. The key question there will be whether they put Judge Ramos’ ruling on hold and allow the SB5 version of voter ID to remain in effect during the appeals process or not. Ultimately, this ruling as well as any determination that Texas needs to be put back under preclearance, will go to SCOTUS. We’re still a ways off from that, but do remember that discriminatory intent was also found in the redistricting case, so there are two possible causes for a return to preclearance. I’ll say again, the state is on quite the losing streak with voting rights litigation. Being put back under preclearance would be richly deserved. Oh, and both parties will be back in court on the 31st to set a schedule for briefings and hearings on the preclearance question. I can hardly wait. A statement from MALC is here, and the Statesman, the Associated Press, Mother Jones, the DMN, Daily Kos, the Current, ThinkProgress, Vice News, and the Lone Star Project have more.

Plaintiffs again ask for voter ID law to be tossed

Again I agree with them.

Still the only voter ID anyone should need

Minority groups have asked a federal judge to scrap Texas’ voter identification law and place the state under the jurist’s supervision for at least a decade, according to court filings this week.

Not only are the groups taking on the state over the law they say discriminates against blacks and Latinos, but they also want U.S. District Judge Nelva Gonzales Ramos of Corpus Christi to kick their former ally, the U.S. Justice Department, out of the case.

“The United States’ shameful and disgraceful dismissal of their intent claim for political purposes should disqualify them from participating further in this proceeding; the ideals of equality inculcated in the United States Constitution are not subject to such shabby treatment as demonstrated by this administration,” Rolando Rios, a lawyer representing the Texas Association of Hispanic County Judges and Commissioners, wrote in a court brief.

[…]

There’s no indication of when Gonzales Ramos, who has twice ruled that the original voter ID law was intentionally meant to suppress minority voters and intentionally discriminated, might rule on the plaintiffs’ requests in the voter ID case.

See here for the previous time that Judge Ramos was asked to void the law. It’s not clear to me if this is the same group as that, but in any event this ask comes with the ten-year re-imposition of preclearance. The motion to dismiss the now-antagonistic Justice Department is new, too. I can’t find a copy of this brief, but Rick Hasen has the state’s brief asking the judge to drop out and declare all is now well, and the Trump DOJ brief echoing that position and claiming the state is super trustworthy now. Yeah, sure. The Observer has more.

Trump DOJ says all is swell with voter ID now

Of course they do.

Still the only voter ID anyone should need

Texas’ new voter identification law fully absolves the state from discriminating against minority voters in 2011, and courts should not take further action in a battle over the state’s old voter ID law, President Donald Trump’s Department of Justice argued in a legal filing Wednesday.

“Texas’s voter ID law both guarantees to Texas voters the opportunity to cast an in-person ballot and protects the integrity of Texas’s elections,” the filing stated.

Federal lawyers were referring to Senate Bill 5, which Texas Gov. Greg Abbott signed into law last month. It would soften a 2011 voter ID law — known as the nation’s most stringent — that courts have ruled purposefully burdened Latino and black voters. If allowed to take effect, the law would allow people without photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining what was otherwise required.

“S.B. 5 addresses the impact that the Court found in [the previous law] by dramatically reducing the number of voters who lack acceptable photographic identification,” the justice department argued, adding that U.S. District Judge Nelva Gonzales Ramos should “decline any further remedies.”

The filing came as Ramos is weighing whether SB 5 fixes legislative discrimination she and other courts have identified, and it highlighted Trump’s dramatic departure from his predecessor on voting rights issues.

Former President Obama’s Justice Department originally teamed up with civil rights groups against Texas throughout the long-winding legal battle over the ID law, known as Senate Bill 14. The civil rights groups argue SB 5 neither absolves lawmakers from intentionally discriminating against minority voters by passing the 2011 law, nor would it properly accommodate those voters going forward.

Chad Dunn, a lawyer representing some of the challengers, said the reversal shows the Justice Department “simply has no more credibility in this litigation.”

See here and here for some background. Both sides will get to respond to the others’ briefs by July 17, and we ought to have a decision by August 10. I continue to be puzzled as to how anything the Legislature does now can undo its discriminatory intent from 2011. Undo the effects sure, though I don’t think they’ve truly done that either, but not the intent. There needs to be some redress for that, and the best way to accomplish that is to throw the law out entirely. If there are no consequences for bad acts, there is no incentive to not commit them. The Lone Star Project, the Current, and Rick Hasen have more.

Next round of voter ID briefs ordered

Moving right along:

Still the only voter ID anyone should need

With the next election season looming, a federal judge has set a fast-paced schedule for determining whether Texas should be penalized for a voter ID law found to have been written by Republicans to intentionally discriminate against minority voters.

Saying no additional hearings will be needed, U.S. District Judge Nelva Gonzales Ramos gave lawyers two weeks to file legal briefs on the matter, with a final round of response briefs due July 17.

Ramos also said she wants to hear arguments about whether Texas should be placed under preclearance — meaning the U.S. Justice Department would have to approve any changes to voting laws or practices in the state.

The order, dated Tuesday, said Ramos will take into consideration Senate Bill 5, which was passed by the Legislature in May to expand the forms of identification that registered voters can use to cast ballots in Texas. The judge gave no other details beyond saying she will weigh SB 5 “to the extent that it, on its face, may be relevant to issues regarding remedies.”

Lawyers for Texas have told Ramos that state election officials need a decision by Aug. 10, when voter certificates are finalized and sent to each county for printing.

See here for the previous update. Note that the August 10 date is a deadline for this November’s election; there is still time to fight over this before 2018, though not that much if we take the primaries into account. Basically, this order says we’re done with presenting evidence, now it’s time to decide what if any remedies are needed to bring the state into compliance. The plaintiffs, citing the previous ruling that the law was enacted with discriminatory intent, want the whole thing thrown out and the status restored to what it was before 2011. The state argues that SB5 fixed all the problems and so no further action is needed. Let’s just say that someone is not going to be happy with the ruling.

Yet another report about how much our voter ID law sucked

Keep ’em coming.

Still the only voter ID anyone should need

Hundreds were delayed from voting and others nearly turned away entirely during the presidential election because of confusion over the status Texas voter ID laws, a new report from a voting rights advocacy group shows.

It’s just one of numerous problems Texas voters — particularly minority groups — faced during the 2016 election cycle, the report from the Texas Civil Rights Project detailed on Thursday.

“Unfortunately, throughout the state, voters faced numerous obstacles that complicated the process,” said Beth Stevens, voting rights director at the Texas Civil Rights Project which put out the report on Thursday. “Through our Election Protection Coalition, we heard directly from thousands of voters about the barriers they faced in our electoral system.”

The first of its kind Texas-based report on voter issues was limited in scope to just over 4,000 incidents that we logged. But Stevens said it’s safe to assume there are many more Texans who experienced similar obstacles in voting that simply did not know who to turn to.

“Common sense says that there is whole subset of voters that didn’t know who to call and just walked away,” she said.

Of the 4,000 incidents that were tracked by a coalition of voting advocacy groups during the presidential election most were issues related to polling place problems, voter registration status or voter ID requirements.

The Texas Civil Rights Project press release is here, and the full report is here. Confusion and discouragement were the point of the voter ID law. The only just and sensible way to address that is to throw the whole thing out.

The DPS two-step

First, there was this.

Despite a two-year budget of $2.4 billion, the Texas Department of Public Safety, with little notice, has reduced office hours at 11 of the state’s busiest driver’s license offices and plans to lay off more than 100 full-time employees to deal with a $21 million funding crunch.

The statewide police agency’s primary function is to patrol state highways and issue driver’s licenses, but in recent years has spent hundreds of millions on security operations along the 1,200-mile border with Mexico.

The effects of the reduced driver’s license office hours were apparent on Monday morning, where nearly 200 customers formed a long, snaking line outside the large DPS facility at 12220 South Gessner. On June 5, the DPS abruptly scaled back operating hours from 7:30 a.m. to 6 p.m. to 8 a.m. to 5 p.m. at the large centers. The offices are still open after 5 p.m. on Tuesdays.

[…]

DPS spokesman Tom Vinger said Monday the department is not allowed to use funds set aside for border security to offset shortfalls in other areas of operation, like the driver’s license division. The cuts were necessary after DPS was instructed by state legislators to reduce 2018-2019 funding for the division by 4 percent.

DPS management of the driver license operation has not only angered customers, it is being criticized by elected officials.

State Sen. John Whitmire, D-Houston, said DPS did not notify lawmakers of the reductions in driver’s license operations until after the Legislature adjourned late last month.

“We’re stuck now with a severe reduction in service hours and employees at multiple centers around the state, including two here in Houston in my district, that we know are already overcrowded,” Whitmire said.

“It’s pretty alarming – we leave after sine die (adjournment), and leave (DPS) a budget of $800 million for border security, which involves essentially two border counties, and we leave $11 billion in the rainy day fund, and we have to tell people they’re going to have to stand in longer lines to get a driver license.”

But Sen. Whitmire, just think of all those speeding tickets being handed out in South Texas as a result of our sacrifice. Would that not make it all worthwhile? Perhaps someone realized how bad this all looked, and also considered the voter ID implications, as people who lacked drivers licenses had to get approved state election IDs from DPS offices. If the state of Texas was hoping that its slightly modified voter ID law would be enough to counter a motion to pitch the whole discriminatory thing, then maybe DPS needed to reconsider. And indeed, they did.

The Texas Department of Public Safety has reversed a controversial cutback in staffing hours at 11 of the state’s largest driver’s license offices including those in Houston, Dallas, and El Paso, according to a veteran Houston lawmaker who protested the reductions.

St. Sen. John Whitmire, D-Houston, said he spoke early Tuesday with the chief of staff for Texas Gov. Greg Abbott, and at the end of the conversation he was told the schedule reductions were reversed.

Whitmire added that he received an e-mail from Col. Steven McCraw, the DPS director, who confirmed the office hour reductions which were instituted June 5 would be restored.

[…]

“I talked to the Governor’s chief of staff, who totally agreed it was unacceptable. At the end of the conversation, it was reversed,” Whitmire said. “And then I heard from McCraw that it had been reversed, and he looked forward to visiting me with any further changes.”

Funny how these thing work. It all worked out in the end, but only because someone noticed. Had that not been the case, this could have gone on indefinitely. Always pay attention to the details.

Voter ID plaintiffs ask court to void the law

As well they should.

Still the only voter ID anyone should need

Lawyers for minority voters and politicians asked a federal judge Wednesday to void the Texas voter ID law, saying it is the next logical step for a statute found to be discriminatory.

The lawyers also said they will ask U.S. District Judge Nelva Gonzales Ramos to require Texas officials to get U.S. Justice Department approval for any future changes to election law or voting procedures to guard against additional attempts to discriminate against minority voters.

[…]

Much of Wednesday’s courtroom conference focused on recent action by the Legislature to soften the requirements of the state’s voter ID law.

Senate Bill 5, signed into law last week by Gov. Greg Abbott, was meant to fix problems Ramos had identified with the 2011 law, Texas Deputy Solicitor General Matthew Frederick said.

“We are trying to have a reasonable, fair photo voter ID law that allows everyone to vote,” Frederick said.

Texas Attorney General Ken Paxton went further in an advisory, filed last week in Ramos’ court, arguing that SB 5 will provide a safety valve that allows registered voters to cast a ballot if they couldn’t reasonably obtain a government-issued photo ID.

“Senate Bill 5 cures any alleged discriminatory effect caused by the state’s photo voter ID requirement,” Paxton wrote.

Plaintiffs lawyer Ezra Rosenberg disagreed.

“SB 5 still bears the discriminatory intent of (the original law) because it still visits burdens on those groups your honor has found were discriminated against,” Rosenberg told Ramos.

Plaintiffs lawyer Chad Dunn said SB 5 was enacted with the same legislative problems Ramos had identified in the original voter ID law, including no study to determine the bill’s impact on minority voters and the rejection of amendments proposed by black and Latino lawmakers to soften the bill’s effect.

See here, here, and here for more on SB5. The DMN also reported on this status call.

In April, U.S. District Court Judge Nelva Gonzales Ramos found the 2011 voter ID law discriminatory for the second time. But she delayed any remedy her court could provide, including placing the state under federal supervision, until the end of the session to give state lawmakers a chance to act.

On Wednesday, attorneys for the state argued that lawmakers had addressed the court’s concerns. The plaintiffs were trying to “paint a caricature” of the state and the law that was not true, said Matthew Frederick, Texas deputy solicitor general.

“It’s just a bill that’s trying to do what the court told us to do and fix SB 14 [the voter ID law],” Frederick said. “We’re trying to have a reasonable, fair photo ID law that allows everybody to vote.”

Frederick asked Ramos to dissolve a ruling she made last fall that softened the voter ID law for the presidential election after an appeals court found the voter ID law discriminatory. That would allow the law, with the new changes, to go into effect in January of next year.

Frederick wants to the court to rule by Aug. 10. If a decision is delayed any further, it could disrupt elections in 2018, he said.

Attorneys for the plaintiffs said they don’t see a need for a resolution by August. Rather than ruling on whether the newly passed legislation fixed issues with the original voter ID law, they argued, the court should focus on providing remedies for its findings that the law discriminated against minorities and did so on purpose.

“The court should continue its course and strike it down,” said Chad Dunn, an attorney for the League of United Latin American Citizens, one of the plaintiffs.

Doing so would bring Texas back to the voter requirements that were in effect before the 2011 voter ID law. Dunn said the newly passed law, also known as Senate Bill 5, did not fully address issues with the original voter ID law and was a “duct tape” solution.

“It is litigation strategy masquerading as a legislative function,” he said.

Dunn said the bill ignored some of the provisions Ramos had suggested in her interim order, such as listing an “other” box on the declaration of reasonable impediments. Not including the box limits the documents people can use to vote, and making it a felony to lie on the declaration could discourage voters, he said.

You know where I stand on this. I don’t see how SB5 can possibly address the discriminatory intent issue, but even if one can accept that it does, it’s still the case that the state did as little as it thought it could get away with to mitigate the effect of voter ID. There’s still no transparency in how the 2016 outreach effort was conducted, huge numbers of people were confused about what they needed to vote, the list of accepted documents that don’t require an affidavit is the same, and the penalty for lying on the form is excessive and possibly discouraging to voters. Given all this, and given the massive scope of the failure in 2016, voiding the law is the only sensible remedy that even approaches a proper level of redress. Judge Ramos has asked both sides for a brief on what they think the remedy should be for Monday, though I doubt there will be any surprises in them. The Trib has more.

Voter ID 2.0 gets final passage

Hopefully, this will turn out to have been a waste of time.

Still the only voter ID anyone should need

The Texas House and Senate have approved a deal to relax the state’s voter identification requirements, meaning the closely watched legislation now only awaits Gov. Greg Abbott’s approval.

The Republican is expected to sign Senate Bill 5, capping a flurry of late activity that pushed the legislation to the finish line after some state leaders feared its demise — and legal consequences from inaction.

The House approved the compromise bill Sunday in a 92-56 vote — one day after the Senate backed the deal along party lines.

Sen. Joan Huffman’s bill, which would soften voter ID requirements once considered strictest in the nation, responds to court findings that the current law discriminated against black and Latino voters.

[…]

Under the final bill, Texans who own qualifying photo ID must still present it at the polls. Those include: a state driver’s license or ID card, a concealed handgun license, a U.S. passport, a military ID card, a U.S citizenship certificate or an election identification certificate. Such IDs may be expired up to four years, thanks to a provision in the House bill that survived the compromise. Voters 70 years and older may use such IDs expired for any length of time.

The final bill stripped some provisions from the House legislation, including requirements that the secretary of state to study ways to boost the state’s perennially low voter turnout and that the agency reveal details — currently withheld — about its spending on voter education efforts.

House Democrats on Sunday voiced disappointment with those changes.

“The attempt was to try and bring some type of transparency, said Rep. Justin Rodriguez, D-San Antonio, who had pushed the spending disclosure provision. “My concern is basically handing a blank check over to the Secretary of State’s office.”

See here and here for the background. I’m sure the state and the Republicans didnt want to go into the June 7 status call with Judge Ramos empty-handed, but I really don’t see how this bill changes anything. It (barely) mitigates the effect of the 2011 voter ID law, but does not – cannot – address the discriminatory intent of the law. Add in the completely half-assed way the state implemented the court-ordered mitigations in 2016, as well as its refusal to be transparent about those efforts should make it clear that they are trying to do the tiniest minimum to get out from under the court order. The only answer here, the only way to get their attention, is to throw the law out entirely, and invoke Section 3 to make it harder for a new voter ID bill to get passed. Here’s hoping.

House passes Voter ID 2.0

Some minor changes, but the same basic idea.

Still the only voter ID anyone should need

The Texas House on Tuesday tentatively approved legislation to overhaul the state’s embattled voter identification law, moving it one step closer to Gov. Greg Abbott’s desk.

Senate Bill 5 would in several ways relax what some had called the nation’s most stringent ID requirements for voters — a response to court findings that the current law discriminated against black and Latino voters.

The 95-54 vote followed a six-hour debate that saw fierce pushback from Democrats, who argued the legislation wouldn’t go far enough to expand ballot access and contains provisions that might discourage some Texans from going to the polls. Democrats proposed a host of changes through amendments, a few of which surprisingly wriggled through.

Tuesday’s vote was part of flurry of last-minute efforts to salvage a bill that languished in the House for nearly two months, worrying Republican leaders who believed inaction would torpedo the state’s position — and bring down federal election oversight — in ongoing litigation over the current ID law.

[…]

Before it reaches Abbott, the bill must return to the Senate, which must weigh seven House amendments or request a conference committee to squabble over each chamber’s legislation. One amendment would allow voters to present IDs that had been expired for four years, rather than two years, as the Senate bill would. Another would require the secretary of state to study ways to boost the state’s perennially low voter turnout, and a third amendment would require the secretary of state’s office to reveal details — currently withheld — about its spending on voter education efforts.

Democrats said the amended SB 5 would not pass legal muster, arguing lawmakers should instead scrap all vestiges of the 2011 law.

“We’re in for a long, hot summer of having to defend this in court,” said Rep. Alfonso Nevárez, D-Eagle Pass. “And guess what? We’re going to lose again.”

See here for the background. I agree with Rep. Nevarez. Changing how voter ID is enforced now has no bearing on the intent of the law when it was passed. That can’t be fixed by amending the law. I grant, the state will have a better defense with SB5 on the books, but I’m skeptical and Judge Ramos ought to be as well. The Chron has more.

The state’s voter ID failure is much bigger than you think

You really have to read this.

Still the only voter ID anyone should need

The confusion started in the first hour of the first day of early voting in San Antonio last October.

Signs in polling places about the state’s controversial voter ID law contained outdated rules. Poll workers gave voters incorrect information. Lines were long — full of people who were full of uncertainty.

The presidential election of 2016 was off to a sputtering start in Texas, where years of angry claims about illegal voting had led to a toughening of identification requirements for those going to the polls.

On that day last October, Nina Perales, vice president of litigation for the Mexican American Legal Defense and Education Fund, was met with a line out the door when she arrived at her San Antonio polling place.

“A poll worker stood in front of me where I was and said, ‘You are at the one-and-a-half-hour mark,'” Perales said. “And she insisted your ID needed to be out when you got to the front of the line.”

But that, in fact, wasn’t the law. A compromise a federal court had settled on months before allowed those without photo IDs to fill out an affidavit and show alternate ID.

“So, we filed suit against the county,” Perales said.

Days later, Bexar County, home to San Antonio, agreed to try and remedy its mistakes — poll workers would be retrained, signs would be corrected and voicemail instructions for voters would be updated.

But a ProPublica review of the 2016 vote in Texas shows that Bexar County’s problems were hardly isolated — and, in many cases, were beyond fixing.

Indeed, the state’s efforts to enact and enforce the strictest voter ID law in the nation were so plagued by delays, revisions, court interventions and inadequate education that the casting of ballots was inevitably troubled. Among the problems that surfaced:

  • The promised statewide effort to inform Texans about voter identification requirements failed terribly. ProPublica contacted hundreds of community organizations and local county party officials to see if they’d received a voting instruction manual the state said it had sent but could not find one who had used it. The largest voter education groups — League of Women Voters Texas, the Southwest Voter Registration Education Project, MALDEF and several disability rights groups — said they didn’t get copies at all.
  • The fiscal note attached to the 2011 bill indicated voter education would cost the state $2 million. That’s one-fifth what a similar bill in Missouri — a state with 21 million fewer people than Texas — allocated. While the Texas secretary of state’s office spent the majority of its voter education budget in 2016 to educate voters about the law, the money appears to have been wasted on an ineffective campaign.
  • The Texas Department of Public Safety, a law enforcement agency tasked with issuing free IDs for voting purposes, initially required those who applied for the ID to be fingerprinted, a decision many say scared off potential voters. DPS also didn’t have Spanish translators in all of its offices and didn’t initially provide applications or information about the free IDs in any language other than English.
  • Remarkably, the very aim of the legislation — to thwart people from voting illegally — was not fully addressed by the law, which allowed three versions of identification obtainable by non-citizens.

Jacquelyn Callanen, the election administrator for Bexar County, said she is still furious about the state’s performance in handling last November’s vote.

“I’ve been doing this for 22 years,” she said. “This was the most complicated and emotionally charged election I have ever seen.”

There’s a ton more, and you need to read the whole thing. It will piss you off, and it should. We know that the state’s so-called voter ID education effort last year was a boondoggle and a failure, but you can’t fully appreciate how big a failure it was without this. Among other things, the story recounts the history of voter ID legislation in Texas, how the Elections department at the Secretary of State’s office became politicized and denuded of competence, and more. As noted by the Brennan Center, there will be a status call on June 7 to sort out the issues in determining a remedy in the wake of the ruling last month that the voter ID law was passed with discriminatory intent. I say any such remedy needs to begin with a complete scrapping of the existing law and an eight-figure campaign to do real voter (and elections administrator) education, done by multiple firms that don’t make BS claims about “proprietary” information. Then maybe, just maybe, we can claim to have set things right. Read the story and see what I mean.

Who’s your lawyer?

Ross Ramsey has a simple question.

Not this guy

Do you remember the name of the lawyer who advised the Texas House and Senate when they wrote the 2011 voter ID bill? That’s the law a federal judge in Corpus Christi found to be intentionally discriminatory on the basis of race. An appeals court told her to throw out a particular argument without retrying the case and come to a fresh conclusion. She did, and she came to the same conclusion: intentional racial discrimination.

Do you remember the name of the lawyer who advised the House and the Senate — and don’t forget the governor at the time, Rick Perry — on congressional and legislative redistricting after the 2010 census, counseling them as they drew lines to maximize their Republican advantage? The legal expert who would have said “too much” if he had thought his clients might’ve stepped in a legal cow patty? They stepped in it just the same: A federal panel ruled lawmakers intentionally discriminated against minority voters.

The state has stacked up a run of losses that could throw it back under federal supervision — forcing the great state of Texas to tuck tail and ask the federal government for permission for every change it makes to its voting and election laws. This state and many others used to discriminate habitually and creatively — so much so that federal law included Texas in the list of states that couldn’t be trusted to take care of their own citizens with fair laws and fair districts that would have allowed them to take part in the great democratic franchise, to choose the people who represent them.

Remember that lawyer’s name?

That would be Greg Abbott, in case you hadn’t figured it out. Now as noted in the article, it was ultimately the Republicans in the Lege who passed those bills, and for all we know they may eventually get bailed out by the Supreme Court. But still, you’d think a better lawyer might have given them better advice. No wonder Abbott hasn’t had much to say about any of this.

The status of Section 3

Lyle Denniston looks at a key aspect of the voting rights-related lawsuits in Texas.

About four years after the Supreme Court took away the government’s strongest authority to protect minority voters’ rights, a backup power under the federal Voting Rights Act – weaker and harder to use – is now being threatened, just as federal courts have begun applying it.

At issue now, as it was when the Supreme Court decided the case of Shelby County v. Holder in June 2013, is a form of government supervision of voting rights that goes by the technical term, “pre-clearance.” When operating against a state or local government, that means that officials cannot put any new voting law or procedure – however minor – into effect without first getting approval in Washington, D.C.

Three cases now developing in federal courts based in Texas are testing whether the variation of “pre-clearance” will take the place of what the Supreme Court scuttled. And there are already serious challenges facing that prospect, in each of those cases.

[…]

District Judge Lee H. Rosenthal, became the first since the demise of Section 5 pre-clearance to impose Section 3 pre-clearance as a remedy for a discriminatory voting practice. That case involves a shift of the way voters in Pasadena, Texas, elect the members of the city council. Judge Rosenthal, after finding that the change discriminated intentionally against the city’s Hispanic voters, adopted a six-year period of pre-clearance for any future change in voting laws in that locality.

That case has now moved on up to the U.S. Court of Appeals for the Fifth Circuit. And that is where one major threat to Section 3 remedies has arisen. It came in a legal brief filed by the state of Texas last month, supporting an appeal by the city of Pasadena as far as the city is challenging the remedy of Section 3 pre-clearance. That remedy, the state brief asserted, “must be sparingly and cautiously applied.”

The state’s filing argued that “misuse” of that mode of pre-clearance “threatens to re-impose the same unwarranted federal intrusion that Shelby County found could not be justified under the Constitution.” The brief contended that Judge Rosenthal had engaged in such a “misuse” of this provision by imposing it for only a single incident of discrimination – the one-time change in the method of electing the Pasadena city council.

The only circumstance in which a Section 3 pre-clearance remedy is valid, under either the specific language of Section 3, the reasoning of the Supreme Court in 2013, or the Constitution, the Texas brief contended, is when a judge can conclude that the discrimination was “pervasive, flagrant, widespread, and rampant.”

The Fifth Circuit Court has been centrally involved for years in Voting Rights Act cases, because the state of Texas (located in that Circuit) has so often been sued for discrimination in voting. If that court were to read the Section 3 pre-clearance provision in the limited way that the state seeks, that would be a major setback in this legal field.

The Pasadena ruling was in January, and it put Pasadena under preclearance through the 2021 elections. The practical effect of that is likely to be minimal in that Pasadena is unlikely to want or need to engage in redistricting any time soon (other things like voting locations and hours for elections conducted by the city of Pasadena are also in scope), but the precedent as the first use of Section 3 in the post-Shelby world is big. As Denniston notes, the voter ID case, in which a finding of intentional discrimination has already been made, and the legislative redistricting case where the matter of intent has not yet been resolved, could impose similar requirements on the state as well. If the intent finding in the voter ID case is upheld, that would affect redistricting even if no such ruling is made in that suit.

So, it’s not surprising that the state is arguing for a limited application of Section 3. There’s an awful lot at stake, and it all begins in Pasadena. I’ll be keeping an eye on this. Link via Rick Hasen.

Voter ID education was a massive failure

This is outrageous.

Still the only voter ID anyone should need

The University of Houston Hobby School of Public Affairs recently completed a report, “The Texas Voter ID Law and the 2016 Election,” based on surveys of registered voters who sat out the 2016 elections in the state’s two highest profile battleground jurisdictions: Harris County and Congressional District 23 (CD-23), which stretches from San Antonio to El Paso.

We found almost all registered voters who did not vote had a valid photo ID, and virtually no one was prevented from voting for lack of one of the seven state-approved forms of photo ID needed to vote in person.

However, these registered voters were poorly informed about the photo ID regulations, which are the foundation for revised ID legislation now being considered in the Legislature.

It’s no surprise that the Texas Secretary of State’s 2016 public education campaign left some voters uninformed about the voter ID law, given that only $2.5 million was allocated for the effort and the requirements changed just months before the election.

But legislators can correct that problem, even as they consider other changes to the law. We urge them to take that responsibility seriously in light of what we discovered.

Thirty-seven percent of registered voters in Harris County and 45 percent of those in CD-23 did not vote in November. But almost all of them could have. Altogether, 97 percent of registered non-voters in Harris County and 98 percent of those in CD-23 had an unexpired, state-approved photo ID. That rose to 99 percent in Harris County and remained at 98 percent in CD-23 when acceptable expired IDs were considered.

[…]

Only 20 percent of non-voters could accurately identify the photo ID rules. Three out of five incorrectly believed all voters were required to provide a state-approved photo ID to vote in person, unaware that people could also vote by signing an affidavit and providing one of several supporting documents.

Latino non-voters were significantly less likely than Anglo and Harris County African American non-voters to accurately understand the rules. Latino non-voters in both locales were also significantly more likely to believe the photo ID rules were more restrictive than they actually were.

Three out of four non-voters incorrectly believed only a valid, unexpired Texas driver’s license qualified as a state-approved form of photo ID, and only 1 in 7 knew a license that had expired within four years qualified.

You can see the study here. You can’t tell me that this kind of confusion isn’t a part of the appeal for Republicans who advocate for voter ID, especially strict voter ID laws like Texas’. There’s a reason why that law was ruled to have been passed with discriminatory intent. That confusion will continue to be a factor going forward as well even as the law is invalidated (which may or may not continue to be the case as the appeals process gets underway). It’s going to take a large investment in voter education to counteract that effect, unlike the pathetically puny effort the state grudgingly put forward last year.

The Trib adds some reporting to the op-ed that the study’s authors published.

“If [Texas] just used rules similar to those enforced in 2016 but did a better job educating voters, we would see only very modest adverse effects on participation,” Jones said.

The survey results tracked similarly to findings in a 2015 joint Rice University and University of Houston study of CD-23 that found eligible voters stayed home because they erroneously thought they lacked proper IDs — possibly factoring into the outcome of Hurd’s close win over Democrat Pete Gallego.

Jones called it unrealistic to expect the secretary of state’s office, previously led by Carlos Cascos, to educate would-be voters across the vast state with just $2.5 million — a sum better suited to reach folks in just one of Texas’ 36 congressional districts.

A federal judge ordered Texas to launch the voter education effort just three months before Election Day last November, and the campaign hit an early speed bump when that same judge ordered the secretary of state’s office to correct and re-issue press materials following allegations that the office inaccurately described fixes to the ID rules.

The agency at the time called educating voters its top objective.

Researchers can’t analyze how effectively the agency has used its scarce resources for education because it has refused to release key details about where it purchased television and radio advertisements to publicize the relaxation to ID requirements in the run-up to the elections — secrecy supported by a ruling from Attorney General Ken Paxton.

The justification for that ruling and for the secrecy in the first place is that the work done by these overpriced consultants on behalf of the state was a “trade secret” on their part, which is bullshit on so many levels I can’t even begin to categorize them. Rep. Justin Rodriguez filed a bill to force transparency on this, which I suppose may now be moot in light of the ruling from Corpus Christi. What needs to happen, regardless of what becomes of that ruling, is that a crap-ton of money needs to be spent to undo the toxic effects of the voter ID law and make sure everyone who is eligible to vote knows it. Since the state isn’t going to spend that money, someone else needs to do it. If the Texas Democratic Party wants a cause to rally people to, that would be my recommendation.

Voter ID law declared discriminatory

Again.

Still the only voter ID anyone should need

A federal judge has ruled — for the second time — that Texas lawmakers intentionally discriminated against Latino and black voters in passing a strict voter identification law in 2011.

U.S. District Judge Nelva Gonzales Ramos ruled Monday that Texas “has not met its burden” in proving that lawmakers passed the nation’s strictest photo ID law, know as Senate Bill 14, without knowingly targeting minority voters.

The 10-page ruling, if it withstands almost certain appeals, could ultimately put Texas back on the list of states needing federal approval before changing election laws. A 2013 Supreme Court ruling sprung Texas and other states with a history of discrimination from that list.

U.S. 5th Circuit Court of Appeals last July ruled that the Texas law disproportionally targeted minority voters who were less likely to have one of the seven forms of state-approved photo ID — a violation of the U.S. Voting Rights Act. And Texas conducted the 2016 General Elections under a court-ordered relaxation of the rules.

But the appeals court asked Ramos, of Corpus Christi, to reconsider her previous ruling that lawmakers discriminated on purpose, calling parts of her conclusion “infirm.”

After reweighing the evidence, she came to the same conclusion, according to Monday’s ruling. Her decision did not identify what some have called a smoking gun showing intent to discriminate, but it cited the state’s long history of discrimination; “virtually unprecedented radical departures from normal practices” in fast-tracking the 2011 bill through the Legislature; the legislation’s “unduly strict” terms; and lawmakers’ “shifting rationales” for passing a law that some said was needed to crack down on voter fraud.

“The Court holds that the evidence found ‘infirm’ did not tip the scales,” Ramos wrote. Civil rights groups and others suing the state offered evidence that “established a discriminatory purpose was at least one of the substantial or motivating factors behind passage of SB 14,” she added.

See here and here for the background. This will of course be appealed, and who knows what will happen with that. In the meantime, as was the case with Pasadena, the court will decide what if any Voting Rights Act remedies will need to be applied to fix the problem. For starters, the voter ID law will be thrown out in its entirety, just as it had been enjoined while Section 5 was in effect and preclearance was required. The big question will be whether preclearance will be reinstated, and if so for how long. I’m pretty sure that it will be, but we’ll have to wait to see about that. In the meantime, let’s celebrate the win as we wait for the appeal. Statements from MALC and Sen. Sylvia Garcia are beneath the fold, and the Chron, Rick Hasen, the Texas Election Law Blog, the Current, and the Lone Star Project have more.

(more…)

Some Texas voting rights lawsuit updates

This has been a busy week for litigation related to voting rights issues in Texas. Here are updates to some cases, all of which happened this past week.

From Texas Redistricting:

The three-judge panel in the Texas redistricting case has set a status conference for April 27, at 9:30 a.m. in San Antonio to discuss a trial schedule for the remaining claims in the case as well as the redistricting plaintiffs’ request to block the state’s use of its current congressional plan (Plan C235) on the grounds that defects found by the court in the 2011 plan continue to exist in the current plan. The court directed lawyers for the state to be prepared to discuss at the status conference “whether the Legislature intends to take up redistricting during this legislative session to remedy any violations that persist in the 2013 plans.”

The court also asked the parties to be ready to discuss the timing for its consideration of requests that Texas be bailed back into preclearance coverage under section 3© of the Voting Rights Act.

A copy of the court’s order setting a status conference can be found here.

See here and here for the background. The plaintiffs want a new map in place by July 1.

A couple of days after that happened, the plaintiffs responded.

On Friday, plaintiffs in the Texas redistricting responded in a court filing to the State of Texas’ position that it was premature to consider the plaintiff’s request to block and require a redraw of the state’s congressional map (Plan C235).

In the filing, the plaintiffs told the court that while there was sufficient time to remedy constitutional defects in the map if the process began now, “delaying all relief until the Court schedules and holds another trial and issues another merits determination would raise a serious risk that Plaintiffs will be forced to vote in yet another election under unconstitutional districts.” The plaintiffs noting that filing for the 2018 Texas primary will open on November 11 and that a number of steps would have to occur to finalize any map changes, including redrawing precinct boundaries.

Circle April 27 on your calendar. We won’t have final answers to these questions then, but we should have some idea of what answers to expect.

From the Texas Civil Rights Project:

[On April 3], Chief Judge Orlando Garcia of the U.S. District Court for the Western District of Texas denied the state’s motion to dismiss Stringer v. Pablos, TCRP’s “motor voter” case.

This decision provides critical validation of the arguments advanced by the plaintiffs — disenfranchised Texas voters — who challenge voter registration processes at the Department of Public Safety under the National Voter Registration Act, or NVRA, and the U.S. Constitution.

One by one, Judge Garcia considered the state’s arguments for dismissal and rejected them. Judge Garcia found the state’s current procedures “inconsistent with the plain language of the NVRA,” refusing to adopt “circular and self-defeating” interpretations of the NVRA offered by the defendants. Instead, the Judge expressly found that the NVRA applies to the thousands of online transactions Texans initiated through DPS.gov every day. This ruling means that the Secretary of State should be registering and updating voter registrations for all of these individuals as a matter of course unless they opt out. Moreover, any alleged interest in avoiding the upfront expense in creating a modern system cannot justify “the burden imposed on voters” under the Equal Protection Clause.

From the beginning, TCRP has argued that “motor voter” failures have excluded countless eligible voters from the Texas electorate. The judge acknowledged the systemic nature of the state’s actions, noting that the plaintiffs had “produced evidence that thousands of Texans submitted complaints to the state that related in some way to DPS’s processing of voter registration information through its website.”

Judge Garcia’s decision comes on the heels of sanctions imposed against Texas on February 17th for causing undue delay and for repeatedly, and without justification, ignoring court orders to provide the necessary documents to move forward with the case. TCRP represents the plaintiffs with co-counsel at Waters Kraus LLP.

Mimi Marziani, Executive Director with the Texas Civil Rights Project, said:

“Today’s opinion is a resounding victory for the countless Texas voters who have been disenfranchised by the state’s failure to adhere with federal law. With this decision, we are hopeful that we can resolve the case before the 2018 election so that every eligible voter can cast a ballot that counts.”

See here, here, and here for some background. Link via Rick Hasen.

From the Express News:

A federal judge has denied the state of Texas’ attempt to quash a lawsuit that challenges the way the state elects judges to the Texas Supreme Court and Court of Criminal Appeals.

Seven Hispanic voters (six from Nueces County and one from El Paso) and a civic organization, La Unión Del Pueblo Entero Inc., allege in the suit that Latino candidates almost always lose statewide elections for judges to the two highest courts in Texas.

In an opinion issued Monday, U.S. District Judge Nelva Ramos ruled that all the plaintiffs have standing to bring the suit under the Voting Rights Act.

The judge rejected the state’s argument that the plaintiffs had failed to state a cause of action under Section 2 of the law, noting that the U.S. Supreme Court has already held that Section 2 applies to judicial elections.

The ruling clears the way for a trial, according to a news release from two law firms and an organization representing the plaintiffs.

See here and here for the background, and here for a copy of the judge’s order. It’s not clear to me what a remedy for this looks like if the plaintiffs ultimately prevail, but in the meantime it will be interesting to see how this plays out. Rick Hasen has one of the press releases mentioned in the story; I couldn’t find any others googling around.

And finally, also from the Express-News:

Proposed legislative changes to Texas’ voter ID law won’t affect a lawsuit’s claim that the law is discriminatory, a federal judge has ruled.

U.S. District Judge Nelva Gonzales Ramos, based in Corpus Christi, made the declaration in an opinion that also allowed the Justice Department to withdraw from the case.

The opinion follows a hearing in February in which — as directed by a federal appeals court, the U.S. Fifth Circuit — she heard more arguments about whether the law, SB 14, was passed with discriminatory intent.

The state argued that lawmakers planned fixes to be made in Austin with a measure called Senate Bill 5.

“The court holds that the Fifth Circuit did not direct this Court to withhold a decision on the discriminatory purpose claim and that the claim is not, and will not be, moot as a result of pending or future legislation,” Gonzales Ramos wrote.

The civil rights groups that brought the suit say the proposed changes, if passed in the newly introduced legislation, are irrelevant and that the GOP-controlled Legislature designed and passed the 2011 voter i.d. law with discriminatory purpose.

See here and here for some background. Judge Ramos did let the Justice Department officially withdraw from the case, so only the private plaintiffs will continue on. Her order can be seen here, in which she sets a status call on June 7 to discuss whether an evidentiary hearing on remedies is required, how long that might take, and what the deadlines for briefs and whatnot should be. This too came via Rick Hasen.

So the TL;dr summary of all this is:

1. The judges in the redistricting case will discuss wrapping up the other items and figuring out what to do with the Congressional map on April 27 with the litigants. This isn’t a hearing, just a discussion of what they all will be doing and when they will be doing it.

2. Similarly, the judge in the litigation to determine (again, under the standards set by the Fifth Circuit) whether the 2011 voter ID law was passed with discriminatory intent will discuss the schedule and logistics with the attorneys on June 7.

3. Two previously filed lawsuits, one that alleges the state of Texas does not comply with federal Motor Voter laws and one that argues that the statewide election of judges violates the Voting Rights Act, survived motions to dismiss.

Whew!

Voter ID 2.0 passes out of the Senate

Meh.

Still the only voter ID anyone should need

The Texas Senate tentatively approved legislation Monday that would revamp the state’s voter identification rules, a response to court rulings that the current law discriminates against minority voters.

Following more than an hour of debate, the chamber voted 21-10 to move the bill to a final vote, likely later this week.

Sen. Joan Huffman’s Senate Bill 5 would add options for Texas voters who say they cannot “reasonably” obtain one of seven forms of ID currently required at the polls. It would also create harsh criminal penalties for those who falsely claim they need to choose from the expanded list of options.

“I’m committed to constitutionally sound photo identification at polling places,” Huffman said.

Voting rights advocates have called the expanded list of options an improvement over the current embattled law, but they have pushed for ID options beyond those included in Huffman’s bill and raised concerns over the strict penalties for false claims.

[…]

“My intent with the bill is to take the roadmap that the 5th Circuit gave us,” Huffman said.

But those found to have lied about not possessing photo ID — by falsely signing the “reasonable impediment” form — could be charged with a third-degree felony under Huffman’s bill. Such crimes carry penalties of two to 10 years in prison.

Sen. José Rodríguez of El Paso was among Democrats seeking to soften the punishment, calling it too harsh for the crime — particularly in cases where a Texan is otherwise casting a legal vote.

“It has the effect of scaring people, intimidating people,” he said. “We should not be putting people in jail for up to 10 years for a lie that is frankly of no consequence.”

See here for the background. The bill was amended to require “intentionally” making a false claim about not having ID in order to be prosecuted, which I appreciate. The whole thing still suffers from “solution in search of a problem” syndrome, but depending on how the question of discriminatory intent gets resolved, in the end it may not matter. Even if that doesn’t happen, I suspect there will be another lawsuit down the line, perhaps after someone gets busted. Voter ID will suck a little bit less under SB5, but it’s still voter ID.

Bill to force transparency on voter ID outreach filed

I approve.

Still the only voter ID anyone should need

A state lawmaker wants to shine a light on how Texas spends millions of taxpayer dollars to educate the public about its controversial voter ID law.

Democratic Rep. Justin Rodriguez is proposing legislation that for the first time in Texas calls for transparency of spending for voter education campaigns by requiring the Texas Secretary of State’s office to produce data showing results after each general election.

The state’s chief elections office has contracted with public relations giant Burson-Marsteller to produce voter ID publicity efforts, but has refused to disclose where it placed television and radio spots as part of a $2.5 million campaign, nor reveal the names of roughly 1,800 community groups that partnered with the state for the 2016 elections.

Rodriguez, a Democrat from San Antonio and member of the House budget writing committee, says Texas officials shouldn’t be allowed to hide information about an important public education campaign_especially given widespread confusion over changes to the Texas law leading up to November’s election.

“These are public dollars,” said Rodriguez, who is planning to file his bill Wednesday. “I hate that this has kind of become an adversarial deal with the secretary of state’s office, but we want to make sure that money is being spent correctly.”

A spokesman for Secretary of State Rolando Pablos, appointed by Republican Gov. Greg Abbott, did not return a request for comment but the office has previously said the materials were not released because of an ongoing voter ID lawsuit.

That’s not exactly true. I quote from David Saleh Rauf’s November 4, 2016 story in the Houston Chronicle:

Texas’ main argument to withhold the information boils down to this: Burson-Marsteller drew up the plans and provided them to the state under contract as “proprietary” information.

A federal judge in August sealed records related to ad buy markets and community groups targeted to receive “digital tool kits” with updated voter ID information. The secretary of state’s office has since used the court seal as one of its reasons to deny media inquiries for the information.

Along with documents related to the current outreach program, the secretary of state’s office has refused to disclose information related to ad buys and market placement for a voter education campaign in 2014, the first statewide election cycle in which the voter ID law was used. The agency also will not release the name of a state lawmaker it wrote a letter addressing details of the 2014 education effort.

As I’ve said before, I think the “proprietary information” argument is a load of hooey. Rep. Rodriguez’s bill is HB3285. I don’t expect it to pass, but it was absolutely correct to file it.

Another voter ID update

From the Lone Star Project:

Still the only voter ID anyone should need

Last week, the Trump Department of Justice brought press attention to the ongoing Texas voter ID lawsuit that remains pending before Federal District Judge Nelva Gonzales Ramos in Corpus Christi. The Trump DOJ withdrew long-standing federal government claims that the Texas law was adopted with the intent to discriminate against Hispanic and African American Texans.

By withdrawing its claims of discriminatory intent in the Texas case, the Trump DOJ, led by embattled Attorney General Jeff Sessions, sent its first clear signal that the DOJ under Trump will not responsibly defend the U.S. Voting Rights Act or block discrimination against minority citizens.

Moreover, in their brief to Judge Ramos, the Trump DOJ argued that she should delay her ruling on discriminatory intent until the current Texas Legislature decides on the adoption of a new Texas voter ID law.  The argument is extraordinary in that it somehow reasons that the intentions of a Legislature convened in 2017 can repair or erase the discriminatory intentions of a different Legislature convened in 2011.

On Tuesday, allied plaintiffs challenging the Texas voter ID law, who include U.S. Congressman Marc Veasey (TX33 – Dallas/Fort Worth), filed their brief responding to the Trump DOJ.  The brief is relatively short and easy to follow.  The key points made are:

  • The Trump DOJ withdrew its claims of discriminatory intent based on political rather than substantive legal considerations.  They failed to cite any new evidence refuting discriminatory intent.
  • Action by the current Texas Legislature to consider or pass a new voter ID law does not reflect on the intent of the Legislature five years ago, and should not affect Judge Ramos’ actions or ruling on discriminatory intent now.
  • Judge Ramos should issue her ruling on discriminatory intent now, while holding her final judgement and prescribing a remedy until the Legislature completes whatever actions it may take on new voter ID legislation.

Judge Ramos is expected to issue her response to the briefs filed soon.

See here for the background. I didn’t think much of the state and DOJ’s arguments last week, and I don’t think any more of them now. Between this and the redistricting decision, the potential to substantially roll back some of the most egregiously restrictive voting laws of this decade is great.

Voter ID 2.0 clears Senate committee

Seems likely this will go the distance.

Still the only voter ID anyone should need

A Texas Senate panel cleared legislation Monday that would overhaul the state’s voter identification rules, an effort to comply with court rulings that the current law discriminates against black and Latino voters.

The Senate State Affairs Committee voted 7-0 to send the legislation to the full chamber.

Filed by Committee Chairwoman Joan Huffman, Senate Bill 5 would add options for Texas voters who say they cannot “reasonably” obtain one of seven forms of ID currently required at the polls. It would also create harsh criminal penalties for those who falsely claim they need to choose from the expanded list of options.

Huffman’s bill would allow voters older than 70 to cast ballots using expired but otherwise acceptable photo IDs. The bill would also require the Texas secretary of state to create a mobile program for issuing election identification certificates.

“The people of the state of Texas demand integrity at the ballot box,” Huffman said Monday. “I am committed to constitutionally sound voter ID.”

Voting rights advocates call the expanded list of options an improvement over the current embattled law, but have raised concerns over the strict penalties for false claims.

[…]

Huffman’s bill would follow that format, allowing voters without photo identification to present documents such as a utility bill, bank statement or paycheck. And election officers could not question the “reasonableness” of the excuse for not having photo ID. But those found to have lied about not possessing photo ID could be charged with a third-degree felony under Huffman’s bill. Such crimes carry penalties of two to 10 years in prison.

Celina Moreno, an attorney for the Mexican American Legal Defense and Educational Fund, testified Monday that Huffman’s bill was a “major improvement” over the current law. But she pressed lawmakers to remove the felony penalties, calling them “voter intimidation.”

Matthew Simpson, with the ACLU of Texas, suggested that a third-degree felony is often reserved for violent conduct.

See here, here, and here for some background. Let me state up front that voter ID is and will always be hogwash, a non-solution to a non-existent problem whose primary purpose is making it harder for some people to vote. A real fix for voter ID, if we must have voter ID, requires allowing more forms of acceptable ID and ensuring that everyone who is eligible to vote has easy access to at least one form of acceptable ID. This bill doesn’t do that. It does make our existing and now-illegal system of voter ID slightly better, and as such I agree with Moreno and Simpson. If SB5 does pass in this form it won’t surprise me if someone eventually sues over the harshness of the penalties. And if it does pass, even in a form that is much more to my preferences, it does not affect the big question of whether or not the Republicans who passed it in 2011 did so with discriminatory intent. I’d rather see SB5 pass than fail, but my first choice will always be for it to not be needed at all.

Once more with feeling on voter ID

Slate’s Mark Joseph Stern says that Tuesday’s arguments about whether Texas’ voter ID law was enacted with discriminatory intent or not went well for the plaintiffs, and not for the state or its new buddies in the Justice Department.

Still the only voter ID anyone should need

Tuesday’s hearing was supposed to be all about the question of intent. But the DOJ’s last-minute move to side with Texas rather than the coalition challenging the law threw it for a loop, necessitating a discussion of the agency’s new position. John Gore, the deputy assistant attorney general for the DOJ’s Civil Rights Division, spoke briefly, urging the court to dismiss the discriminatory intent claim. (The agency’s acting head of the Civil Rights Division, Thomas Wheeler, recused himself because he advised Texas legislators as they wrote the bill. Small world!) Gore pointed out that Texas is considering an amendment that will allegedly address the legal problems with the bill, SB14.

“If it follows through,” he said, “and we are hopeful it will, that resolves this case.”

But does it? Judge Ramos wasn’t so sure.

“How,” she asked, “does a new bill affect a ruling on discriminatory purpose on SB14?” After all, an amendment can’t alter the legislature’s intent in passing the original bill. (The Trump administration may face a similar problem in its efforts to scrub Islamophobia from its next travel ban.)

“It creates a new legislative mosaic,” Gore said, with lots of feeling, if not much logic. “It paints a new picture of Texas’ intent with regard to voter ID.”

Chad Dunn, a member of the legal team representing the plaintiffs in the case, tried his best not to look aghast and very nearly succeeded.

“The Voting Rights Act does not deal around the edges,” he said in rebuttal to Gore. “It requires courts to strike down a discriminatory law and all of its tentacles. Texas may change the staging or the dress of SB14, but the underlying architecture remains.”

To Dunn, the key problem with SB14 is the limitations it places on the forms of ID voters may use at the polls. A handgun license, for instance, is sufficient to cast a ballot; a student ID is not. Minorities are significantly less likely to have the required IDs than whites. Dunn argues that SB14 was crafted with the aim to create “a disparate impact on Latinos.” Even if Texas remedies this problem, its original bill may still have been enacted with discriminatory intent, meriting federal oversight of future voting-related laws.

In her previous ruling, Ramos laid out a comprehensive case demonstrating why the legislature had intentionally endeavored to restrict the suffrage of minority voters. On Tuesday, attorneys for the plaintiffs took turns reciting her reasoning back to her. The argument here is not rocket science. In support of SB14, the Texas legislature professed fears about voter impersonation that were unsupported by evidence. It also approved IDs that minorities are much less likely to have and rejected amendments designed to lessen the bill’s impact on minorities. Gov. Rick Perry declared the bill an “emergency item,” allowing the legislature to rush it through committee to an up-or-down floor vote, altering or suspending multiple procedural rules along the way. And it did all this in the face of dramatic demographic changes that could give minorities unprecedented influence over state representation.

In short—as Ezra Rosenberg, a lawyer for the plaintiffs, said on Tuesday—“your honor, and the United States, got this right the first time around.” The court, Rosenberg said, “may infer from these shifting and tenuous rationales that there is pretext at work.” There is, he alleged, “a mountain of evidence” that Texas acted with racist intent, even if it is all circumstantial. Janai Nelson, a lawyer with the NAACP Legal Defense and Educational Fund, hit the same themes. “An overwhelming majority of factual findings unassailably supports your previous opinion,” she told Ramos. “The legislature designed SB14 with surgical precision to discriminate against minority voters. Republicans chose IDs that that Anglos were more likely to possess and excluded IDs minorities are more likely to possess. Impersonation fraud is largely mythical.” And “this aggressive fixation on an illusory problem” is evidence of unlawfully discriminatory intent.

Up until this point, Ramos remained mostly quiet, though she took extensive notes. When Angela Colmenero stood up to argue on behalf of Texas, the dynamics shifted dramatically. Colmenero, aided by a nifty PowerPoint presentation, explained that in passing SB14, the legislature was acting upon extensive evidence that voter impersonation was a serious problem in Texas. Ramos suddenly leaned forward, looking genuinely confused.

“Why was this not introduced at trial?” she asked, referring to the lengthy bench trial she held in 2014 during which Texas could not prove that voter fraud was real. “Texas,” she continued, “did not present any evidence about any of these things.”

Colmenero admitted that the purported evidence was really just testimony in House and Senate committee hearings, testimony that was not supported by any proof.

“But that’s all hearsay,” Ramos observed. “People saying X, Y, Z—that’s not evidence for a trial court. ‘So-and-so’s [deceased] grandfather voted’—that’s not court evidence.”

See here for the background. I Am Not A Lawyer, but having the judge lecture you about standards of evidence seems like an indication that your case is not going well. Nonetheless, as the Express News notes, Judge Ramos has asked for briefs on how the voter ID 2.0 bill will affect the case, with a March 21 deadline. We’ll see what happens then. The Brennan Center, the NYT, and the Chron have more.

Justice Department wants out of voter ID case

As expected.

Still the only voter ID anyone should need

The U.S. Department of Justice confirmed Monday it plans to ditch its longstanding position that Texas lawmakers purposefully discriminated against minority voters by passing the nation’s strictest voter identification law in 2011.

The move comes one day before a federal judge is scheduled to hear arguments on that high-stakes voting rights question, and it highlights yet another instance in which President Donald Trump has dramatically departed from the path of his predecessor.

Former President Obama’s Justice Department originally teamed up with civil rights groups against Texas throughout the long-winding legal battle over the ID law, known as Senate Bill 14. But on Monday, lawyers for U.S. Attorney General Jeff Sessions told parties that they were dropping a claim that Texas lawmakers intentionally discriminated against Latino and African-American voters.

The Justice Department’s immediate plans do not include changing its position that the ID law has a “discriminatory effect” on certain voters. A federal appeals court has already resolved that issue, ruling against Texas.

But U.S. District Judge Nelva Gonzales Ramos is scheduled to weigh a more specific question Tuesday: Whether lawmakers knowingly discriminated.

A soon-to-be-filed Justice Department motion “seeks to dismiss the discriminatory purpose claim, but not the discriminatory effect claim,” Mark Abueg, a department spokesman, confirmed to the Texas Tribune.

A ruling against Texas could ultimately put it back on the list of states needing federal approval (called “preclearance”) before changing election laws. A 2013 Supreme Court ruling sprung Texas and other states with a history of discrimination from that list.

Danielle Lang, deputy director of voting rights for the Campaign Legal Center, one of several groups challenging the Texas law, vowed to press on in the case — even without the federal government’s help.

“None of the facts have changed, just the administration,” she said in an interview. “We will be arguing the same claim, and we think it’s really disappointing that the Department of Justice is backing away from its enforcement of voting rights.”

See here for some background. Today’s hearing was rescheduled from January; the DOJ and the State of Texas tried to get today’s hearing postponed as well, to give the Lege a chance to pass the voter ID 2.0 bill, but were denied. Even if Sen. Huffman’s update to the voter ID law, which would incorporate the so-called “softening” agreements from the 2016 Fifth Circuit ruling, were to be passed, it wouldn’t affect this litigation anyway, since the question being litigated is whether the Lege acted with discriminatory intent in 2011 when SB14 was passed. It will be interesting to see if today’s hearing has any effect on the Huffman bill.

So this is where we are. The private plaintiffs will have more work to do now, but as they note the facts haven’t changed, just who’s sitting at the table with them. Rick Hasen believes (and I agree with him) that “eventually DOJ will be on the other side of this issue, supporting the right of states to make it harder to register and vote (purportedly on anti-fraud or public confidence grounds)”. Among other things, that means that Texas will get a much warmer reception from the feds if they pass bills this session or next that restrict voting rights, but that day hasn’t happened yet. Today we will hopefully move one step closer to a ruling that Texas didn’t just accidentally discriminate with SB14. The Lone Star Project, Political Animal, the Current, and the Chron have more.

Voter ID 2.0

Well, this is interesting.

Still the only voter ID anyone should need

Top Texas Republicans unveiled legislation Tuesday that would overhaul the state’s voter identification rules, an effort to comply with court rulings that have found that the current law discriminates against minority groups.

Filed by Sen. Joan Huffman, Senate Bill 5 would add options for Texans who say they cannot “reasonably” obtain one of seven forms of ID currently required at the polls. It would also create harsh criminal penalties for those who falsely claim they need to choose from the expanded list of options.

Lt. Gov. Dan Patrick has granted the bill “priority” status, carving it a faster route through the Legislature. Nineteen other senators have signed onto the bill, and Texas Attorney General Ken Paxton — who is still defending the current ID law in court — applauded the legislation Tuesday.

In a statement, Paxton said the proposal would both ensure the “the integrity of the voting process” and comply with court rulings that have found fault with the current law, considered the nation’s strictest.

Chad Dunn, a Houston-based attorney for groups suing the state over that law, called the legislation “a step in the right direction.”

“The state is acknowledging the federal court’s conclusion that the (current) law is discriminatory,” he said Tuesday.

I’ll reserve judgment for now, but this seems like a sign that the Republicans are not terribly optimistic about their chances with the ongoing lawsuit, with the question in district court about discriminatory intent. Actually, we don’t have to suppose, because we have this.

The U.S. Justice Department joined Texas’ attorney general Wednesday in asking a federal court to delay a hearing on the state’s voter ID law, the latest signal that the federal government might drop its opposition to the law now that Donald Trump is president.

In the joint filing, the Justice Department and Texas Attorney General Ken Paxton asked to delay next Tuesday’s hearing until summer because the Texas Legislature is considering changes to the existing law, which a federal court has found to be discriminatory. Barack Obama’s Justice Department had joined the lawsuit contesting it.

[…]

In the filing, the Justice Department and Texas asked for the hearing to be pushed back until after June 18, the last day Gov. Greg Abbott has to sign or veto legislation.

“If new Texas state voter identification legislation is enacted into law, it will significantly affect the remainder of this litigation,” Texas and the Justice Department argue.

Just hours after Trump was sworn in as president, the Justice Department asked for a January hearing to be delayed to February, saying they needed more time to brief new leadership. Lawyers in the case say it’s still too early to know for sure if Trump’s Justice Department change positions in the case.

In August, Ramos denied a request from Texas to delay hearings in the case until after the legislative session wraps up in June.

“The question to be determined at the hearing is whether there was intent to discriminate during the legislative session in 2011,” said Houston attorney Chad Dunn, who is part of a legal team representing Democrats and minority rights groups challenging the law. “Whatever happens with this bill doesn’t address that question.”

See here and here for the background. I will just point out that the GOP could have passed SB5 back in 2011 and saved themselves a lot of trouble. It would still be a bad idea and a non-solution in search of a non-existent problem, but it would have been harder to beat in court. But here we are, and in this environment that counts for progress. A statement from Rep. Eddie Rodriguez is beneath the fold, and the Star-Telegram has more.

(more…)

On those “improper” votes

Let’s be clear about this.

Still the only voter ID anyone should need

Texas election officials have acknowledged that hundreds of people were allowed to bypass the state’s toughest-in-the-nation voter ID law and improperly cast ballots in the November presidential election by signing a sworn statement instead of showing a photo ID.

The chief election officers in two of the state’s largest counties are now considering whether to refer cases to local prosecutors for potential perjury charges or violations of election law. Officials in many other areas say they will simply let the mistakes go, citing widespread confusion among poll workers and voters.

[…]

An Associated Press analysis of roughly 13,500 affidavits submitted in Texas’ largest counties found at least 500 instances in which voters were allowed to get around the law by signing an affidavit and never showing a photo ID, despite indicating that they possessed one.

Others used the sworn declarations to lodge protest statements against the law.

One affidavit from Hidalgo County, along the Texas-Mexico border, read: “Did not want to ‘pander’ to government requirement.” In Tarrant County, an election judge noted on an affidavit: “Had photo ID but refused to show it.”

“If we see that somebody blatantly says ‘I have ID’ and refused to show it, we’re going to turn that over to the D.A.,” said Stephen Vickers, chief deputy elections administrator for Tarrant County, which includes Fort Worth. “If they tried to use the affidavit to get around the system, yeah, I see that as a violation.”

[…]

In Fort Bend County, a suburb of Houston, more than 15 percent of voters who submitted 313 affidavits said they possessed a photo ID, but they were not required to show it.

Under a court order issued last year, election officials were not allowed to question a voter’s reason for signing an affidavit.

The cases do not amount to voter fraud because people still had to be registered to vote to qualify for an affidavit, said John Oldham, Fort Bend County’s elections chief.

Poll workers were trained to “err on the side of letting people use the affidavit instead of denying them the chance to vote,” Oldham said.

“We don’t consider it something that we want to go out and prosecute people over,” Oldham said. “But I wish we didn’t have this affidavit process. It makes the whole photo ID law entirely meaningless.”

First of all, these were all votes cast by registered voters. The only impropriety, if there is one, lies in how the court order that “softened” Texas’ voter ID law is interpreted. The affidavit process was to allow registered voters who didn’t have one of the accepted forms of ID to cast their ballot if they produced another form of ID and signed a statement swearing 1) that they were who they said they were, and 2) that they didn’t have an accepted form of ID. Some election officials, like Harris County Clerk Stan Stanart took that to mean that the affiant did not own one of those forms of ID, like a drivers license. Others, including attorneys representing plaintiffs in the ongoing litigation, thought that was too strict. What if someone’s license had been lost or stolen, and they didn’t have the opportunity to get a replacement? What if someone arrived at the polling location only to realize they had left their license at home? Maybe the voters in those situations would be permitted to vote – I certainly think the first group ought to be – but until the question comes before a judge, we’re all just guessing. And remember, we’re talking about a few hundred voters who may not have followed a set of rules that were interpreted in a variety of ways versus sixteen thousand people who got to vote in the first place. Perspective, y’all.

The people who would have been denied the opportunity to vote in 2016

There were a lot of them.

Still the only voter ID anyone should need

At least 16,400 Texans who voted in the November election wouldn’t have been able to cast ballots if the state’s voter identification law had been in full effect, state voting records show.

[…]

Through a public records request to the Texas secretary of state’s office, the American-Statesman obtained copies of the more than 16,400 Reasonable Impediment Declarations signed by Texans in the November election. More than 2,300 of the forms, legal affidavits punishable with a perjury charge if found to be false, were signed by Travis County voters.

The voters who signed the affidavits were concentrated in urban areas, with six counties alone — Harris, Travis, Dallas, Collin, Tarrant and Hidalgo — accounting for more than half of them.

Those voters arrived to the polls without one of the seven forms of ID, but were able to vote after signing the form and providing a voter registration certificate, birth certificate, utility bill, bank statement, government check or any other government document that included the registered voter’s name and address.

To sign the forms, all of those voters would’ve had to have been registered to vote and to produce documentation proving who they were.

[…]

Former Texas Secretary of State Carlos Cascos, an appointee of Gov. Greg Abbott who stepped down after overseeing the November election, said the potential of 16,400 voters being turned away was less worrisome in light of the fact that about 9 million Texans voted.

“When you put it in perspective, to me it’s not a large number,” said Cascos, a Republican.

Asked if that meant those voters would have been disenfranchised, Cascos said, “I would agree. That is a way to look at it.”

And, he observed, the number of potentially disenfranchised voters “might not be important for a presidential race or a statewide race, but it very well might matter for local votes, where there can be really small margins.”

“At the end of the day, we want to make sure every qualified Texan who can vote should be allowed to vote,” he said, “(16,000) people wanted to vote and got to vote, so that’s great.”

Cascos is right – sixteen thousand out of nine million isn’t that much. He’s also right that every single one of them would have been disenfranchised had they been turned away, and for no valid purpose. That sixteen thousand just represents the people who tried to vote. We don’t know how many others didn’t bother to show up because they didn’t know that they could have voted – it’s not like the state’s “outreach” was terribly effective. And those sixteen thousand voters who would have been disenfranchised, plus those however many who actually were in this one election, are way way way more than the total number who have ever been credibly accused of any form of vote fraud. As long as we’re putting things in perspective, let’s keep that in mind as well.

Interview with Jose Garza

Still the only voter ID anyone should need

So it’s been a busy couple of weeks for the voter ID litigation. There was the motion by the Justice Department to delay the hearing on whether the law was passed with discriminatory intent, which everyone expects is a prelude to them switching sides in the case. Then there was the decision by the Supreme Court to not hear an appeal of the original ruling that found a discriminatory effect of the law, given with a promise by Chief Justice Roberts that they will be back later. With so much going on, I wanted to make sure I understood it all, and to that end I have for you an interview with Jose Garza, who serves as counsel for the Mexican American Legislative Caucus, one of the plaintiffs in this suit. We talked about both of these events in the case and what they may mean, and a few other items besides. Here’s our conversation:

I feel like I have a better handle on what’s happening, and I hope you feel the same. Let me know what you think.