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voter ID

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.

So what will the Justice Department do with voter ID now?

We don’t know yet.

Still the only voter ID anyone should need

Hours after President Donald Trump was inaugurated, the Department of Justice filed to postpone a hearing on the Texas Voter ID law. The request was granted. The DOJ had previously argued that the law intentionally discriminated against minority voters, but told the court it needed additional time for the new administration to “brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court.”

Chad Dunn, attorney for the plaintiffs in the case, expects Trump’s Department of Justice to reverse course. “I figure the government will spend the next 30 days figuring out how to change its mind,” he said, adding that now he expects the DOJ to argue on behalf of the state of Texas, which has held that there was no intent to discriminate against minorities. “The facts did not change – just the personnel.”

The new hearing date has been set for Feb. 28.

Myrna Perez is the deputy director of the Brennan Center’s Democracy Program and leader of the center’s Voting Rights and Elections project. The Brennan Center was also set to offer oral arguments against the ID law on Tuesday, and Perez said she was “disappointed” with the DOJ’s decision to postpone the hearing. “Numerous courts have held that this law harms minority voters in Texas and we think delaying resolution of this case in that matter isn’t good for Texans,” she said.

[…]

The DOJ had previously argued that the law violated the Voting Rights Act and was intended to directly impact the abilities of minorities to vote, as more than 600,000 of them lacked the ID necessary under state law to vote. Dunn now expects the agency to reverse course.

Trump has not yet had an opportunity to nominate, let alone see confirmed, new judges.

“I don’t expect the outcome of this case to change because we’ve elected a new president,” Dunn said. “For people like me who handle civil rights case and the many who came before me to who did the same, we’re used to fighting against government at all its levels.”

See here for the background. It would be a shame, though it would hardly be a surprise, if the Justice Department changed course. I mean, this is GOP doctrine now, and you can’t send any clearer a signal than appointing Jefferson Beauregard Sessions as AG. It would be nice for the Justice Department to stay on the right side of this, but in the end I think Chad Dunn is correct. The facts haven’t changed, and the plaintiffs have had plenty of experience fighting against the government. Vox has more.

SCOTUS will not review voter ID ruling

For now.

Still the only voter ID anyone should need

The Supreme Court issued orders from its January 19 conference this morning. After granting review in two cases from that conference last week, the justices did not add any new cases to their merits docket today. But there was one notable denial on today’s order list: Abbott v. Veasey, the challenge to a Texas law that requires voters to present specific forms of government-issued photo IDs to cast a ballot. The plaintiffs, including the federal government, argued that the law violates Section 2 of the Voting Rights Act, which bars voting practices or procedures that discriminate based on race. The lower courts agreed, and the state asked the Supreme Court to take up the case, but (after considering the case at three consecutive conferences) the justices declined to do so.

In a relatively unusual move, Chief Justice John Roberts issued a separate statement regarding today’s denial of review. Roberts suggested that, although the court will not take up the case right now, it could still do so in the future. He emphasized that the issues on which the state had asked the justices to weigh in – whether the legislature passed the voter ID law with an intent to discriminate and whether the law violates the federal Voting Rights Act – have not yet been finally determined by the lower courts, where proceedings are still ongoing. When those issues have been decided, Roberts noted, the state can always come back to the Supreme Court. At that point, he stressed, the two issues “will be better suited” for the court’s review – and, although he did not acknowledge it, the court is likely to have a ninth justice, appointed by President Donald Trump.

If the case does eventually return to the Supreme Court, the state could also have an important new ally: the federal government. Although the Obama administration had been one of the plaintiffs challenging the Texas law, on Friday the U.S. Department of Justice asked the federal district court handling the case to delay a hearing, scheduled for tomorrow, for 30 days. “Because of the change in administration,” the Department of Justice explained, the department “also experienced a change in leadership. The United States requires additional time to brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court.” Although there is no way to know for certain until the Department of Justice makes additional filings, Friday’s filing seems to at least leave open the possibility that the federal government could change its position on the Texas voter ID law.

See here for the background. In the short term, this means that elections will continue to be conducted as they were this past November, with more options available for people who do not have one of the “approved” forms of ID. The forthcoming hearing on voter ID in Corpus Christie is for a ruling on the intent of the law, which could have the effect of negating it altogether. However, there is a lot more in play here, as Rick Hasen explains.

In the short term this is good news for Texas voters (who get the benefit of the softened Texas voter id rules ordered by the Fifth Circuit and trial court) and for voting rights activists, who have the benefit of a Section 2 precedent from the Fifth Circuit that helps to strike down some of these more restrictive laws. And the trial court gets to make the record on whether Texas passed its law with a discriminatory purpose.

In the long run, however, things are much less certain. Either in this case, and/or in the North Carolina voting case (cert. petition now pending), the Court could eventually rein in the meaning of Section 2 (both intent and effect) to deal with restrictive voting laws. Within a few years, I expect the Court will likely do so, making it harder to challenge these laws and encouraging more Republican legislatures to enact similar laws.

So we’ll just have to see. That next hearing in February will tell us a lot about what may happen next. A statement from the Lone Star Project is here, a statement from MALC is here, and the Chron, Daily Kos, and the Press have more.

Voter ID hearing postponed

I fear this is a portent of things to come.

Still the only voter ID anyone should need

Within hours of Donald Trump being sworn in as president Friday, a Corpus Christi federal court postponed a scheduled hearing in the Texas Voter ID case until next month at the request of the U.S. Department of Justice.

Lawyers for the Justice department asked for a delay in the hearing scheduled for Tuesday, citing the change in presidential administrations.

“Because of the change in administration, the Department of Justice also experienced a transition in leadership,” the Justice Department petition states. “The United States requires additional time to brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court.”

In the past, the agency has asked that hearings in the case be expedited because of the issues involved.

The Corpus Christi court agreed to the delay, postponing the hearing until Feb. 28.

A lawyer for one of the plaintiffs expressed disappointment at the delay.

“This delay for us is not in the interest of resolving a case that has been going on for far too long,” said Leah Adeh, senior counsel with the NAACP Legal Defense Fund, which represents one of the plaintiffs. “We all have been expending far too many resources on it, and we really want a hearing to get to a decision that this law needs to be struck down.”

Aden said she did not have any reason to believe the delay was a deliberate move to weaken the case against the law, but said elections are upcoming, and a resolution needs to come quickly.

See here and here for the background. Rick Hasen expects that the Justice Department will now switch sides in litigation like this, and he notes that the incoming deputy assistant attorney general for civil rights in the DOJ has a long history of defending redistricting plans in court. So that’s awesome. As a reminder, this hearing was about the question of whether the voter ID law had discriminatory intent, which would void the law and could put Texas back under preclearance, not that this would mean much for the next four years. The law had already been found to have a discriminatory effect and was thus in violation of Section 2 of the Voting Rights Act, a ruling that was upheld by the Fifth Circuit and has been appealed to SCOTUS. The fight is far from over and the good guys still have a good shot at it, but it has gotten a lot harder. Politico and the Brennan Center have more.

Chris Suprun’s eventful year in voting

How weird is this?

Still the only voter ID anyone should need

The self-described “voting addict” was an apparent casualty of the confusion amid legal wrangling over the state’s 2011 voter ID law.

Now, [Texas Republican elector Chris] Suprun is calling for courts to clarify the rules once and for all.

“Pick a course and run with it,” he urged U.S. District Court Judge Nelva Gonzales Ramos, of Corpus Christi, in a letter dated Dec. 21.

“I write this because after not being able to cast a ballot I was disheartened,” the letter said. “I never missed an election in my life until this one.”

In July, the U.S. 5th Circuit Court of Appeals ruled that Texas’ voter ID law discriminated against voters in minority groups less likely to possess one of seven accepted types of identification. The state has appealed that decision to the U.S. Supreme Court, and Ramos is weighing whether Texas discriminated on purpose.

Ahead of the November election, Ramos ordered a temporary fix: Folks without ID could still vote if they presented an alternate form of ID and signed a form swearing a “reasonable impediment” kept them from obtaining photo ID.

That’s why Suprun believed he could vote when he showed up to an early voting location in Glenn Heights on Oct. 26, even though he did not have photo ID.

Suprun said his driver’s license was inside his wallet, which he had left in a family van that was away for repairs. He said he arrived at the polls carrying his city water bill, cable bill and voter registration card — documents that should have fit Ramos’ softened rules.

But the on-site election judge turned Suprun away, saying he could not cast a ballot — even a provisional one — without photo ID, according to a complaint the elector filed with Texas Secretary of State Carlos Cascos’ office.

Alicia Pierce, a spokeswoman for that office, said she could not confirm that any complaint was being investigated. Nor could Texas Attorney General Ken Paxton’s office, his spokeswoman said.

Could Suprun have legally voted under such circumstances? That’s where it gets tricky. Ramos’ order barred poll workers from asking would-be voters why they did not have photo ID. Election judges were to allow voting as long as the otherwise eligible voter signed a form swearing that they could not “reasonably obtain” photo ID.

But had Suprun signed that form and voted, an investigation (however unlikely one might be) might have found that he had “reasonably” obtained an ID but just hadn’t brought it with him.

Whichever the case, Suprun said his story shows that Texas needs clearer voting requirements for the next election — regardless of whether they involve photo identification.

See here for more about Suprun, and here for the last update on the voter ID case. I can’t understand why Suprun’s situation would not be seen as a “reasonable impediment”, and even if you think it isn’t, I don’t understand why he wasn’t allowed to cast a provisional ballot. At the very least, that seems to be an abject failure of the so-called voter ID education outreach that the state was supposed to do. I of course believe that the law should be thrown out in its entirety, but surely we can agree that Suprun’s call for the rules to be made clear and the state to get its act together is worthy.

So now what for voter ID?

It’s hard to say how much prospects have changed now that Donald Trump gets to appoint the ninth Supreme Court justice, but it’s fair to say that thing haven’t improved for the plaintiffs.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Five years ago, Texas passed one of the strictest Voter ID laws in the country. The legal fight began immediately and has continued through this day, with critics of the law getting some assistance from the Obama administration’s Justice Department.

Now, with Republican Donald Trump set to ascend to the Oval Office, the law’s future is more uncertain than ever. Among the questions up in the air: Whom will Trump nominate to the U.S. Supreme Court seat left vacant by Antonin Scalia’s death, and how will a Trump-led Justice Department operate compared to the current administration?

“We’re not going to stand idle when a law is discriminatory,” said Leah Aden, senior counsel of the NAACP Legal Defense Fund. “The strategy may be different depending on who is in office, but we’ll fight it regardless of who’s in power.”

[…]

Rick Hasen, an expert in voting law trends and a professor of political science and law at the University of California, Irvine, said Texas has a “very good chance” at reversing the 5th Circuit’s ruling against them if Trump appoints a conservative justice to Scalia’s seat and the court decides to hear Texas’ appeal. It would depend, he said, on how the court reads Section 2 of the Voting Rights Act, which forbids changes that discriminate against minorities.

“If the court reads Section 2 very narrowly, as I expect a conservative court majority would, that would lead to a reversal of the 5th Circuit’s decision,” Hasen said. “The Supreme Court could say that the 5th Circuit applied the wrong standards to determine whether or not that was discrimination.”

See here for the last update. I’m not going to argue with Prof. Hasen, but I will say that the full Fifth Circuit, which also has a pretty conservative majority, ruled for the plaintiffs, so all hope is not lost. Antonin Scalia was always a vote to uphold voter ID, so the net effect of a Trump appointment is basically neutral. As with many things, it will likely come down to Anthony Kennedy. Having the Justice Department switch sides or at least drop out of the proceedings would be appalling but probably not a difference-maker. It’s not an optimal position to be in, but all hope is not lost.

The much greater challenge now will be the litigation over whether the law had discriminatory intent. That case is in Judge Nelva Gonzales Ramos’ court, with briefs by both sides due Friday. The story says she will issue a ruling by January 24. No matter how she rules, the road after that is considerably rocky, but let’s not get ahead of ourselves.

The other thing to watch for is the Legislature. Greg Abbott and Dan Patrick have been vowing to revisit the voter ID law in the next session, and with the current national landscape I doubt they will feel any restraints when they do. Whatever they pass will wind up in court again, and after that, who knows? I know we already know this, but it’s going to be an ugly four years.

UPDATE: Those briefs have been filed, by the Justice Department and the Attorney General.

We may never know how the state did its court-ordered voter ID outreach

We sure don’t know how the money was spent on it.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

On a television ad airing ahead of Election Day, Texas Secretary of State Carlos Cascos declares: “It’s voting season in Texas.”

The 30-second spot tailored by international public relations giant Burson-Marsteller is supposed to serve as a quick explainer to educate Texans on new voter ID requirements ordered by a federal court.

Yet, Cascos and state officials say they cannot reveal where the secretary of state’s office is spending taxpayer money to broadcast those ads and the names of an estimated 1,800 community groups partnering with Texas to circulate voter ID information at the local level.

Texas is using the lion’s share of a $2.5 million voter education effort on paid media and outreach to community organizations, but has refused over the course of months to provide details of how and where it’s spending public money for the public education campaign.

[…]

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.

See here for some background. I’m sorry, but public money being spent by a public agency is something the public should know about. If Burston-Marstellar couldn’t handle the job without fear of having its “proprietary” secrets revealed, then we should have hired a different firm. I don’t even see the argument for secrecy here. And then there’s this:

According to a court document, Texas planned to send “digital tool kits” to 1,800 community groups with updated voter ID information as part of a strategy that “capitalizes on the connections community groups and organizations have to share information.”

Elaine Wiant, president of the League of Women Voters of Texas, said her organization was never contacted by the secretary of state’s office or Burson-Marsteller, despite being one of the largest active groups doing voter outreach.

“We’ve had many communications with the secretary of state’s office on this,” she said, “and it is a bit surprising they’re engaging with community organizations and not including us.”

On Friday, the secretary of state’s office said it had sent out more than 1,800 digital tool kits to date and that the agency has been in regular contact with the League of Women Voters of Texas, including sharing information about its education efforts and having Cascos speak at events with local chapters.

In the absence of a detailed accounting of how the money was spent, we are forced to take the SOS’s word for it that they have done what they were supposed to do. I see no reason why we should do that.

Lawsuit filed against Bexar County over voter ID info

We’re still fighting this out.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

An advocacy group has filed a lawsuit against Bexar County for misinforming voters about the state’s voter ID rules.

The Mexican American Legal Defense and Educational Fund (MALDEF), filed the lawsuit Friday afternoon on behalf of the Southwest Voter Registration Education Project (SVREP). MALDEF attorneys argue that since Monday, October 24, the first day of early voting, Bexar officials have given out false information about Texas’ voter ID rules in polling places across the county and on a recorded message to voters on the elections website.

The faulty information, MALDEF attorneys say, does not reflect the current court-ordered voter ID rules and could discourage eligible voters from casting their ballots. The current rule lets any Bexar County resident vote, even if they don’t have one of seven state-issued photo IDs. Voters can sign a sworn statement at the polls confirming they don’t have an ID, and show another document that proves their residency (like a bank statement).

In previous elections, Texas residents were required to show a photo ID before voting. U.S. District Judge Nelva Gonzales Ramos tweaked the requirements for the November 8 election after ruling that the state’s original voter ID rules intentionally discriminated against black and brown voters. Ramos had demanded the state spend at least $2.5 million to swiftly educate voters on the new rules. Texas officials, however, put that money toward posters and pamphlets with misleading information that made these rules appear unchanged.

According to the lawsuit, Bexar County has failed to closely follow Ramos’ orders. MALDEF attorneys have demanded the county replace the incorrect information immediately.

After SVREP staffers heard about the incorrect posters and documents at Bexar polling places on Monday, they alerted the county’s elections
administrator, Jacque Callanen. Callanen held a press conference on Tuesday, insisting that all incorrect signs had been taken down.

But on Thursday, the attorneys allege, nine voting locations still displayed posters displaying invalid voter ID laws and had elections staffers giving false ID information.

See here and here for some background, and here for MALDEF’s press release. Though there have been various problems reported around the state relating to voter ID and the way the requirements are communicated, this is the only legal action I know of. By the end of the day Friday, the judge in this suit had granted a temporary restraining order to MALDEF that among other things orders Bexar County to remove the incorrect signs and make sure other materials are up to date. Hopefully everything was fixed over the weekend, but whatever the case I would not be surprised if this in not the last time we hear these complaints. KSAT and KRWG have more.

Voter ID problems still abound

Hardly a surprise.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

This much is clear after two days of early voting in Texas: Legal wrangling over the state’s voter identification law is stirring confusion at the polls.

Amid Texans’ mad dash to polling places this week, the front end of 12 days of voting before Election Day, civil rights groups and some voters are questioning how some county election officials are portraying the state’s voter identification requirements, which a federal judge softened in August.

Among the complaints in pockets of Texas: years-old posters inaccurately describing the rules — more than a dozen instances in Bexar County — and poll workers who were reluctant to tell voters that some could cast ballots without photo identification.

Though it’s not clear that anyone walked away from the polls because of misinformation or partial information, civil rights advocates called the sporadic reports troubling.

“Not everybody is an aggressive voter. Some people are shy and laid back, and if you’re told you have to have an ID, it might cause them to get out of line and go home,” said Jose Garza, a lawyer working for groups challenging the state’s strict 2011 voter ID law.

[…]

Now, after two days of early voting, some complain that local elections officials are only further muddying Texans’ understanding.

In Bexar County, for instance, lawyers for the Mexican American Legal Defense and Educational Fund said they spotted outdated posters — those describing the strict 2011 ID rules without the new caveats — hanging in at least 14 of the county’s 43 polling places at various points during early voting.

“This is a situation where the Secretary of State produced [updated] materials, and you can find them online,” said Nina Perales, the group’s vice president of litigation. “The idea that polling place supply boxes were being filled with the wrong posters is so incredibly frustrating for people who have been working on this issue for years.”

Donna Parker, a spokesman for Bexar County Clerk Jacque Callanen, said Tuesday afternoon that the old posters had since been replaced with accurate ones.

But Perales disputed that the problem was fixed, saying that her group spotted eight polling places on Tuesday that still had misleading info — outdated posters either hanging alone or adjacent to the updated signage.

Here’s an eyewitness account of a problem that occurred in Harris County. I’m willing to give the election workers the benefit of the doubt. It’s been very busy, all of this is new, and Lord knows there has been a rash of misinformation coming from the state. But that’s the point – the state has been acting in bad faith, and that attitude has been echoed by some local officials, most prominently our own Stan Stanart. The fact that there is confusion should not come as a surprise – it’s practically guaranteed. It’s all of a piece with what is happening all around the country, and the motivation for these actions is plain as day. All of this needs to be stopped, and I hope it’s high up on Hillary Clinton’s agenda after the election. The Texas Civil Rights Project and ThinkProgress have more.

Early voting starts today

From the inbox:

EarlyVoting

Harris County Clerk Stan Stanart announced today that 46 locations will be open Monday, October 24 to Friday, November 4 where voters in the third largest County in the nation may cast ballots during the early voting period for the November 8, 2016 Election.  The total is approximately 25 percent more than the number of early voting locations available in the County during the previous presidential election.

“Since the 2012 Election, nine additional early voting locations have been added. Additionally, the time to vote during the first week of early voting has been extended to 6:00 pm,” said Stanart, the chief election official of the County.

“I expect approximately 800,000 voters will choose to vote during the early voting period for this election.  Preparedness on the part of the County Clerk’s Election Division, as well as voters,  is key to a successful election,” added Stanart.

To ensure the voting process is a pleasant experience, the chief election officer of the County  has a few suggestions for voters heading to the polls:

1.   Voters should confirm voter registration status. A voter registration search can be performed athttp://www.hctax.net/voter/search;

2.   Voters should study a sample ballot, mark it, and take it to the poll. Voters can download a voter-specific ballot at www.HarrisVotes.com;

3.   Voters should identify the nearest or most convenient early voting location. Voters can vote at any one of the 46 early voting locations;

4.   Voters should find out what photo identification is acceptable to vote at the poll, what other identification options are now available to vote a regular ballot, and what identification expedites the qualification process. The voter identification guidelines are available at www.HarrisVotes.com;

5.   Voters should NOT wear clothing or paraphernalia that promotes a party, a candidate or a proposition to the poll;

6.   Voters should be aware that the use of electronic devices is prohibited inside the poll. The right to cast a secret ballot must be respected;

7.   Voters should not wait until the last minute to vote early. During peak voting hours, the wait time could be  longer than we wish.

“Don’t procrastinate. Do your homework.  Then, go vote early,” summed up Stanart. “For voters in Harris County, voting early is the simplest and easiest method of voting. ”

To obtain the early voting schedule, a list of acceptable credentials to vote at the polling location and other election information, voters may visit the Harris County Clerk’s website at www.HarrisVotes.com or call 713.755.6965.

Early Voting Days and Hours

October 24 – October 28: 8:00 a.m. – 6:00 p.m.

October 29: 7:00 a.m. – 7:00 p.m.

October 30: 1:00 p.m. – 6:00 p.m.

October 31 – November 4: 7:00 a.m. – 7:00 p.m.

November 8, 2016 Early Voting Locations, Harris County, Texas
Location Address City Zip
Harris County Administration Building 1001 Preston Street Houston 77002
Champion Forest Baptist Church 4840 Strack Road Houston 77069
Prairie View A&M University Northwest 9449 Grant Road Houston 77070
Baldwin Boettcher Branch Library 22248 Aldine Westfield Road Humble 77338
Kingwood Branch Library 4400 Bens View Lane Kingwood 77345
Lone Star College Atascocita Center 15903 West Lake Houston Parkway Houston 77044
Crosby Branch Library 135 Hare Road Crosby 77532
Kyle Chapman Activity Center 7340 Spencer Highway Pasadena 77505
Freeman Branch Library 16616 Diana Lane Houston 77062
Harris County Scarsdale Annex* 10851 Scarsdale Boulevard Houston 77089
Juergen’s Hall Community Center 26026 Hempstead Highway Cypress 77429
Tomball Public Works Building 501B James Street Tomball 77375
Hiram Clarke Multi Service Center 3810 West Fuqua Street Houston 77045
Katy Branch Library* 5414 Franz Rd Katy 77493
Lone Star College Cypress Center 19710 Clay Road Katy 77449
Harris County MUD 81 805 Hidden Canyon Road Katy 77450
Nottingham Park 926 Country Place Drive Houston 77079
Harris County Public Health Environmental Services 2223 West Loop South Freeway Houston 77027
Metropolitan Multi Service Center 1475 West Gray Street Houston 77019
City of Jersey Village City Hall 16327 Lakeview Drive Jersey Village 77040
Richard & Meg Weekley Community Center 8440 Greenhouse Road Cypress 77433
Bayland Park Community Center 6400 Bissonnet Street Houston 77074
Tracy Gee Community Center 3599 Westcenter Drive Houston 77042
Bear Creek Park Community Center 3055 Bear Creek Drive Houston 77084
Trini Mendenhall Community Center 1414 Wirt Road Houston 77055
Acres Homes Multi Service Center 6719 West Montgomery Road Houston 77091
Fallbrook Church 12512 Walters Road Houston 77014
Lone Star College Victory Center 4141 Victory Drive Houston 77088
Hardy Senior Center 11901 West Hardy Road Houston 77076
Northeast Multi Service Center 9720 Spaulding Street, Building 4 Houston 77016
Octavia Fields Branch Library 1503 South Houston Avenue Humble 77338
Kashmere Multi Service Center 4802 Lockwood Drive Houston 77026
North Channel Branch Library 15741 Wallisville Road Houston 77049
Alvin D. Baggett Community Center 1302 Keene Street Galena Park 77547
Ripley House Neighborhood Center 4410 Navigation Boulevard Houston 77011
Baytown Community Center 2407 Market Street Baytown 77520
John Phelps Courthouse 101 North Richey Street Pasadena 77506
HCCS Southeast College 6960 Rustic Street, Parking Garage Houston 77087
Fiesta Mart 8130 Kirby Drive Houston 77054
Sunnyside Multi-Purpose Center 9314 Cullen Boulevard Houston 77033
Palm Center 5300 Griggs Road Houston 77021
Moody Park Community Center 3725 Fulton Street Houston 77009
SPJST Lodge 88 1435 Beall Street Houston 77008
Alief ISD Administration Building 4250 Cook Road Houston 77072
Champion Life Centre 3031 FM 2920 Road Spring 77388
Lone Star College – Creekside Center 8747 West New Harmony Trail Tomball 77375
* Indicates New Location

www.HarrisVotes.com

That of course is for Harris County. Early voting information for some other counties of interest:

Fort Bend
Brazoria
Galveston
Montgomery

Check your local county clerk or election administrator if you are elsewhere.

Battleground Texas reminds you what form of ID is acceptable:

The state of Texas has made it easier for more Texans to vote in this election by expanding the types of identification that a voter can present at the polls!

If you don’t have a photo ID (reminder of the accepted forms of photo ID here), you’ll just need to fill out a short form stating the reason why you haven’t been able to get one and swearing that you are who you say you are.

Then you can present any government document that lists your name and address. A copy of the document will do, unless it has a photo, in which case be sure to bring the original. Poll workers cannot question or challenge you regarding your lack of a photo ID.

If you don’t have a photo ID, bring one of these documents to the polls:

  • Voter registration certificate (the card mailed to you shortly after you register to vote)
  • Certified birth certificate (original)
  • Current utility bill (copy or original)
  • Bank statement (copy or original)
  • Government check (copy or original)
  • Paycheck (copy or original)

Election poll workers are prohibited by law from challenging your reason for being unable to obtain a photo ID. If you experience any issues at the polls, call our Voter Protection Hotline at 1-844-TXVOTES, and we can help.

Voters with a disability may apply with the county voter registrar for a permanent exemption to showing ID at the polls.

And here’s a guide as to what poll watchers may and may not do.

Poll watchers may look on as voters cast ballots or as officials count them. They can also observe inspection of voting machines. But they can’t talk to voters or election officials unless they are reporting an irregularity to an election officer. They also can’t make audio or video recordings or take photos inside a polling place.

The Texas Election Code includes several other rules governing poll watchers:

  • They must be eligible to vote in the county where they they are serving (or in elections limited to a smaller jurisdictions, they must be eligible to vote in those communities).
  • They must present a “certificate of appointment” to the election judge at a polling station and the certificate must come from the political party, candidate or ballot measure group that appointed them (Groups of registered voters may also appoint poll watchers on behalf of certain write-in candidates.).
  • They may not access a voting station while someone is casting a ballot.
  • State law also prohibits poll watchers — or any voter, for that matter— from wearing a badge, insignia or emblem related to a candidate, measure or party on the ballot within 100 feet of a polling place’s door.

Here are two other relevant rules:

  • Parties, candidates and campaigns may not appoint more than two watchers at each precinct polling spot, early voting ballot board meeting or central counting station. They may appoint as many as seven watchers to each early voting polling location, but no more than two may serve at the same time.
  • Candidates on the ballot may not serve as poll watchers during their own elections. State law also bars from the following from serving: current public office holders, close relatives of election judges at the polling place and people convicted of election-related offenses.

Bottom Line: Poll watching is a common practice in Texas elections, but those who do it must follow plenty of rules.

Here’s a Chron story about poll watchers and the Trump-inspired hysteria that has boosted their numbers. Make no mistake, some number of them will be up to no good and should be closely watched themselves. On the plus side, there will be no Russian poll watchers, which is a sentence I never thought I’d type. If you see poll watchers engaging in activities they shouldn’t be, I strongly urge you to call your elections administrator and county party. I haven’t seen an announcement that the HCDP has set up a hotline for such complaints, but their main number is 713-802-0085 if you need it. Now go forth and vote. I expect it will be a busy early voting period.

Statewide registrations top 15 million

Not too shabby.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas has a record-breaking 15 million people registered to vote ahead of the November election, the Secretary of State’s office announced Thursday.

Texas has 15,015,700 voters registered according to a preliminary estimate — over 777,000 more than were registered in time for the March primaries. The deadline to register to vote was Tuesday.

“If you want to vote you must be registered, so it’s good to see that so many Texans are preparing for this November’s election,” Secretary of State Carlos Cascos said in a statement. “Registration is just the first step. I encourage Texans to prepare now for this fall’s election.”

In 2012, Texas registered 13,646,226 voters or 75 percent of the voting-age population. In 2008 the number was 13,575,062 or 77 percent of the voting age population, according to the news release. This year’s figure amounts to 78 percent of the voting age population and more than 1.3 million additional registered voters from four years ago, according to the news release.

See here for some background. As we know, there has been a surge in registrations in the big counties as well, as one would expect. Voter registration totals don’t necessarily correlate with turnout, but we are almost certainly headed for a record-breaking year pretty much no matter what. Which, as the Texas Election Law Blog points out, is a very scary proposition to some people, regardless of what the actual outcome of any race may be. Add “Ways to push back against the voter ID court ruling” to the list of things to watch out for in the next legislative session, if you didn’t already have it there. Trail Blazers has more.

State files inevitable voter ID appeal to SCOTUS

As expected.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas wants to take its voter identification battle to the U.S. Supreme Court.

Texas Attorney General Ken Paxton on Friday asked the justices to hear his arguments about why the state’s photo ID requirements for voting do not discriminate against Hispanics and African-American voters.

“Safeguarding the integrity of our elections is essential to preserving our democracy,” the Republican said in a statement. “Texas enacted a common-sense voter ID law and I am confident that the U.S. Supreme Court will ultimately reinstate it.”

Texas officials say the voter ID law bolsters the integrity of elections by preventing voter fraud, which Gov. Greg Abbott has called “rampant.” But the U.S. Department of Justice and other plaintiffs — backed by court rulings — have pointed out that in-person voter fraud is incredibly rare.

Friday’s filing is Paxton’s last-ditch attempt to salvage the requirements after a string of defeats in court.

[…]

Paxton is appealing to a Supreme Court that still has just eight members, following the February death of Justice Antonin Scalia. If the justices agree to hear the case — and if they do so without a replacement for Scalia — Paxton would need five votes to overturn the appeals court ruling. A 4-4 split would allow it to stand.

Gerry Hebert, executive director of the Campaign Legal Center and an attorney for the plaintiffs, said he did not expect the justices to accept the case, and he called the 5th Circuit’s decision “comprehensive.”

“It’s really more of a political move to satisfy the right wing of the Republican Party,” he said. “I think it’s just them taking another pile of taxpayer money and setting it on fire.”

The Supreme Court appeal will not affect the Nov. 8 elections, which will take place with relaxed requirements.

We’ve always known this was coming. The only issue that matters to Ken Paxton is his need to continually prove his wingnut bonafides to the Republican primary voters. He needs them to keep the faith in him at least until after the 2018 primaries. It doesn’t matter what SCOTUS does – if Paxton comes away from this with Justice Ginsberg’s shoeprints on his ass, I assure you he’ll be happy about it – all that matters is feeding the beast. Ken Paxton knows who his voters are, and he knows what they want. That’s all there is to this.

Judge orders state to reword its voter ID outreach materials

Let’s try this again, shall we?

Still the only voter ID anyone should need

Still the only voter ID anyone should need

In the continuing fight over Texas’ voter ID law, a federal judge on Monday ordered state officials to change, where possible, the language used to inform voters and poll workers about acceptable voting procedures for the November election, according to a lawyer for those challenging the state law.

U.S. District Judge Nelva Gonzales Ramos ordered state officials to abandon more restrictive language used to describe who is eligible to vote on Nov. 8, said Chad Dunn, a lawyer for Democratic U.S. Rep. Marc Veasey of Fort Worth, the League of United Latin American Citizens and several voters who lack government-issued identification.

During Monday’s hearing in Corpus Christi, the judge ordered that polling-place posters and all future communication from state officials and agencies track the language Ramos used in her August order to soften the state’s voter ID law. That order focused on the opportunity to cast a regular ballot for registered voters who do not have government-issued ID “and cannot reasonably obtain it.”

“Hopefully, we got some clarity going forward, and that message can get to voters,” Dunn said.

See here and here for the background. The crux of the argument was that the original judge’s order was to allow an opportunity for people who “do not possess SB 14 ID and cannot reasonably obtain it” to be able to vote, while the state’s wording in its election materials was that people who “have not obtained” and “cannot obtain” SB 14 ID may vote. Among other things, this led to County Clerks like Stan Stanart threatening to prosecute anyone who didn’t meet his standard of not having an accepted form of ID.

Rick Hasen has a copy of Judge Ramos’ order. As his reaction to the order shows, it was more than just the state needing to abide by the original agreement, which they themselves had a part in crafting. ThinkProgress explains.

For one thing, as the Huffington Post’s Cristian Farias notes on Twitter, Judge Ramos’ Tuesday order is stronger than a proposed order drafted by some of the plaintiffs in this case. The proposed order would have largely clarified that the court’s original order meant what it said. Judge Ramos’ Tuesday, order, by contrast, requires Texas to take several specific actions. It also subjects Texas to a kind of federal supervision similar to the oversight it faced before conservatives on the Supreme Court gutted a key provision of the Voting Rights Act.

Among other things, the Tuesday order requires Texas to “re-issue its press releases concerning voting to properly reflect the language in the Court’s Order,” to “edit the poster to be printed and placed at polling locations to accurately reflect the language in the Court’s Order,” and to “edit digital materials on its website page(s) that address voting rights and procedures, including titles or headlines and FAQs” to bring them into compliance with the original court order.

Significantly, the Tuesday order also provides that “the State of Texas shall provide to counsel for all Plaintiffs scripts and copy for documents and advertisements that have not yet been published for review and objection prior to publication.” As a practical matter, this gives the Justice Department (as well as the private plaintiffs in this case) the power to read over and object to new elections related materials before those materials are published.

Perhaps that will prevent these shenanigans going forward. I sure hope so. In the meantime, the Chron reports that Judge Ramos has denied the plaintiffs’ motion on the side issue of what if anything to do about clerks like Stanart. That’s a line that hasn’t been crossed yet, I guess.

We’ll see how this goes, because again, there’s no reason to take the state’s word for it on anything relating to this. KUT, which had the first story about Judge Ramos’ order, informs us of another angle:

During an appearance on Laura Ingraham’s radio show today, Lt. Gov. Dan Patrick says the Texas Legislature will try to pass a new voter ID law in the next session.

“I was one of the authors of our photo voter ID law that the court struck down,” he says. “We have a judge, a Democrat who’s just eviscerating our photo voter ID. We’re going to have to pass it again come January when we go back into session.”

Remember that the full Fifth Circuit Court of Appeals upheld Judge Ramos’ finding that the voter ID law had a discriminatory effect, and that the question of whether the law was enacted with discriminatory intent is yet to be decided. If the answer to that second question is ultimately found to be Yes, then not only is the law completely voided, then the state could be put back under preclearance under Section 3 of the Voting Rights Act. Given all of that, does anyone believe for a minute that a new voter ID law that meets Dan Patrick’s approval can pass legal muster? Because I sure don’t. This issue is going to provide long-term employment for all of the attorneys involved. The Trib has more.

Hearing on voter ID outreach set for Monday

Once more into the breech, to see if the state needs to get slapped down again.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas officials will be back in federal court next week to defend the state’s voter ID law, this time against accusations that they have failed to comply with judge-ordered changes for the November election.

Monday’s hearing comes at the request of the U.S. Department of Justice, which filed a complaint last week arguing that Texas was misleading voters and poll workers about acceptable voting procedures and who will be eligible to cast a ballot on Nov. 8.

Obama administration lawyers say Texas is violating U.S. District Judge Nelva Gonzales Ramos’ Aug. 10 order requiring state officials accept a wider array of identification — and spend at least $2.5 million informing voters of the changes — after a federal appeals court ruled that the Republican-favored voter ID law, enacted in 2011, discriminated against minority voters.

“That order is of limited use if Texas refuses to train poll workers and educate voters accurately on its plain language and scope,” Justice Department lawyers told Ramos in the complaint.

[…]

The latest legal fight revolves around language that Texas adopted to comply with Ramos’ order.

Instead of focusing on opportunities to vote, Texas adopted language saying only those with a government-issued ID or those who “have not obtained” such identification were eligible to vote, the Justice Department argued. The instructions are needlessly restrictive and would require poll officials to reject eligible voters, including those whose ID was lost or stolen and those who had to surrender identification to the state, the agency said.

In a court filing late Monday, Paxton said the language adopted by the state recognizes that Ramos ordered changes that allow registered voters to cast a regular ballot if they can demonstrate an impediment or difficulty in obtaining a government-issued ID.

“Individuals who have an acceptable form of ID but left it at home — or who choose not to show it, even if they have one — are not the intended beneficiaries of the court’s order,” Paxton told Ramos.

See here for the background. The state’s argument is certainly one way to interpret the court’s order, and as we have seen similar language has been used by at least some County Clerks, including Stan Stanart here in Harris County. It’s not the only possible interpretation, and taking such a view would seem to put local election officials as well as election judges in the position of cross-examining voters – “Are you SURE you don’t have a drivers’ license? I’m not sure I believe you” – which I trust you’ll agree opens a can of worms that would be best left unopened. The number of people who are temporarily without an accepted form of ID due to loss or theft or whatever, whom the plaintiffs argue are covered by the judge’s order, is likely small. The number of people who really do own an accepted piece of ID but who forget (or “forget”) to bring it with them to the polls is likely even smaller. I don’t see why we should worry about the latter group, especially if it is at the cost of the former. We’ll see what the judge says.

And speaking of Stan Stanart:

Monday’s hearing, set to begin at 5 p.m. in Ramos’ Corpus Christi courtroom, also will include a separate complaint filed by civil rights groups, political leaders and others claiming that Paxton and Harris County Clerk Stan Stanart have tried to intimidate voters by promising to pursue perjury charges against anybody who lies on the declaration by stating that they do not have a government-issued ID.

You can see that separate complaint here. The plaintiffs argue that the state has not responded in any way to Stanart’s comments, thus endorsing them. The concern they voice is that in the absence of any response from the state, such statements could “turn this Court’s remedy into a threat, and the right to vote in upcoming elections into a snare and a delusion”. The Lone Star Project has more.

State accused of misleading on voter ID education outreach

I know, I’m as shocked as you are.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The federal government is accusing Texas of circulating “inaccurate or misleading information” to poll workers and would-be voters about relaxed identification requirements for the November elections.

“Limited funds are being spent on inaccurate materials,” the U.S. Department of Justice wrote in a legal filing Tuesday.

The filing asked U.S. District Judge Nelva Gonzales Ramos to “issue corrections to past press releases and other public statements” by Texas officials and “update and redistribute all electronic resources to reflect that all voters” without one of seven types of photo identification required by a 2011 Texas law may cast a ballot in November.

I told you we shouldn’t take the state’s word for it on anything related to this litigation. Let me quote from the filing to make clear what this is about:

On August 10, 2016, this Court entered an Order directing the State of Texas, Secretary of State Carlos Cascos, and other officials to implement a set of directives for the November 8, 2016 election. Veasey v. Perry, No. 2:13-cv-193, Order Regarding Agreed Interim Plan for Elections (“Remedial Order”) (S.D. Tex. Aug. 10, 2016) (ECF No. 895). The Court ordered:

“Commencing with any elections held after the entry of this Order and until further order of the Court, Defendants shall continue to educate voters in subsequent elections concerning both voter identification requirements and the opportunity for voters who do not possess SB 14 ID and cannot reasonably obtain it to cast a regular ballot.”

Remedial Order ¶ 11 (second emphasis added).

Despite the Remedial Order’s clarity, Texas’s voter education and poll worker training documents depart from it. Rather than educating voters and poll officials about opportunities to cast a regular ballot for those who “do not possess SB 14 ID and cannot reasonably obtain it,” the State has recast that language to limit the opportunity to cast a regular ballot solely to those voters who present SB 14 ID or who “have not obtained” and “cannot obtain” SB 14 ID. That standard is incorrect and far harsher than the Court-ordered standard it would displace. By recasting the Court’s language, Texas has narrowed dramatically the scope of voters protected by the Court’s Order. Moreover, the standard the State’s training and educational materials currently describe has already been rejected by this Court and the Fifth Circuit. At this critical stage, such materials should maximize accuracy and minimize confusion. Texas’s materials do neither.

Plaintiffs have objected to the State’s language repeatedly to attempt to resolve the matter short of court involvement, but Texas has refused to conform all voter education and poll worker training materials to the standard ordered by this Court that voters who “do not possess SB 14 ID and cannot reasonably obtain” SB 14 ID may cast a regular ballot. The State is about to begin a mass media campaign that should educate voters to whom this Court has restored the ability to cast a regular ballot, and an erroneous message would compound—rather than cure—the harm caused by SB 14. The United States therefore respectfully moves to enforce the Remedial Order.

Seems pretty clear to me, and it jibes with the tingly feeling I get in my Spidey-sense when I read the things that people like Harris County Clerk Stan Stanart have been saying about voter ID and the changes to the law that are in effect this November. The state needs to be made to do the right thing because it will not do it on its own. The AG will file its response tomorrow, so we’ll see what they have to say for themselves. The motion is set for hearing on Monday, so we ought to know quickly what will happen. ThinkProgress has more.

What the Harris County Clerk is saying about voter ID requirements

From the inbox:

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Harris County Clerk Stan Stanart reminds Texas voters who cannot obtain one of the seven forms of approved photo ID that they now have additional options when voting in person.

“My office is working to make sure all voters in Harris County are ready to cast a ballot,” said Stanart. “These new options for voters who cannot obtain photo ID are currently in place and will be used in the November Election.”

As provided by a court order, if a voter has a reasonable impediment to obtaining one of the seven forms of approved photo ID, the voter may vote by (1) signing a declaration at the polls explaining why the voter is unable to obtain one of the seven forms of approved photo ID, and (2) providing one of various forms of supporting documentation.

Supporting documentation can be a certified birth certificate (must be an original), a valid voter registration certificate, a copy or original of one of the following: current utility bill, bank statement, government check, or paycheck, or other government document that shows the voter’s name and an address, although government documents which include a photo must be original and cannot be copies.  If a voter meets these requirements and is otherwise eligible to vote, the voter will be able to cast a regular ballot in the election.

The seven forms of approved photo ID are:

  • Texas driver license issued by the Texas Department of Public Safety (DPS)
  • Texas Election Identification Certificate issued by DPS
  • Texas personal identification card issued by DPS
  • Texas license to carry a handgun issued by DPS
  • United States military identification card containing the person’s photograph
  • United States citizenship certificate containing the person’s photograph
  • United States passport

With the exception of the U.S. citizenship certificate, the approved photo ID must be current or have expired no more than four years before being presented for voter qualification at the polling place.

Voters with a disability may continue to apply with the county registrar for a permanent exemption to showing approved photo ID (which now may be expired no more than four years) at the polls.  Also, voters who (1) have a consistent religious objection to being photographed or (2) do not present one of the seven forms of approved photo ID because of certain natural disasters as declared by the President of the United States or the Texas Governor, may continue to apply for a temporary exemption to showing approved photo ID at the polls.

Voters can learn more by visiting www.HarrisVotes.com or by calling 713.755.6965.

Early voting for the November 8 Election begins Monday, October 24 and ends Friday, November 4.

Pay close attention to what Stanart is saying. The voter ID law was not thrown out by the Fifth Circuit. It remains in effect for everyone who has a driver’s license or one of the other forms of ID that had previously been accepted. What has changed is that if you don’t have one of those forms of ID, you can now sign an affidavit swearing to that, show one of the alternate forms of ID listed, and your vote will count. I repeat: if you have one of those approved forms of photo ID listed above, you must still use it. Stan Stanart has already made it clear that he will closely scrutinize those I-don’t-have-an-approved-photo-ID affidavits and the people who sign him. We are fools if we don’t believe him. Yes, the question of whether the Legislature intentionally discriminated by passing that voter ID law in the first place is still an open question. If the plaintiffs prevail, then the voter ID law will be well and truly dead. That hasn’t happened, and there’s absolutely no guarantee that it will. Until then, or until some other legal challenge puts a stake through the heart of these laws nationwide, you still have to show your driver’s license or the equivalent if you have it. Nothing has changed, so don’t act like it has.

Texas begins its voter ID education outreach

For what it’s worth.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas on Wednesday kicked off a voter education campaign ahead of the November elections amid heightened scrutiny of the state’s voter ID law.

Under an agreement with the U.S. Department of Justice and minority rights groups, the state is required to spend $2.5 million to educate voters about its voter ID requirements. Registered voters will be able to cast a ballot Nov. 8 without a photo ID under the agreement, which came weeks after a federal appeals court ruled that Texas’ 2011 voter identification law was discriminatory.

The inaugural Vote Texas event on Wednesday, at which Secretary of State Carlos Cascos told students at the University of Texas at Austin to get into the habit of voting at a young age, was planned before the agreement, Cascos said.

“Our role is not necessarily to increase the vote, but I think that with voter education, the voter training that we’re assisting with and reaching out to first-time voters about the importance of registering, that’ll translate into a greater voter participation,” Cascos said in an interview.

[…]

Cascos is expected to travel across the state as part of the Vote Texas program. He’s scheduled to speak to Texas State University students in San Marcos on Thursday.

See here and here for the background. I hope there’s more to this than Secretary Cascos touring college campuses, but we’ll have to take the state’s word for it that there is.

And in other voter ID news:

With a tie vote in a closely watched case, the Supreme Court on Wednesday allowed a series of voting restrictions in North Carolina to remain blocked ahead of November’s elections. The court handed down an order denying the request by the state to allow it to implement some of the restrictive provisions — provisions that had been struck down and deemed discriminatory in their intent by a panel of judges on the 4th U.S. Circuit Court of Appeals last month.

The order means the appeals court ruling will stand at least through November, while signaling that the Supreme Court is likely split on the larger issue of the legality of the restrictions.

So it’s really really going o matter who gets to finally pick a ninth Justice. Just putting it out there. Rick Hasen and Think Progress have more.

How is the state going to do its voter ID education outreach?

You don’t need to know.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas will spend $2.5 million to spread the word about changes to the state’s voter ID law before the November election, but will not release details of how that money will be spent.

More than half of that taxpayer money will be spent on advertising, but officials will not say which markets they intend to target with television and radio spots.

As part of that outreach effort, the state will send “digital toolkits” to an estimated 1,800 organizations across Texas to engage local communities on voter education. The state will not identify those organizations or communities.

The outreach effort was mandated by a judge in Corpus Christi earlier this month after Texas’ voter ID law was found by a federal appeals court to discriminate against minorities. The court ordered the state to water down the law by expanding the types of identification voters can present at polls to cast ballots in time for the November election. The state also agreed to spend $2.5 million to educate voters and election officials across Texas about the changes.

The state hired public relations giant Burson-Marsteller to design its outreach effort, but asked the court to keep details of its plan under seal, preventing public scrutiny of such things as which regions to target with ads and which groups should receive education materials.

Attorney General Ken Paxton’s office, which asked the court to keep the information under seal, has said in court filings that those documents include “proprietary” or “confidential” information produced by Burson-Marsteller. Paxton’s legal team cited a 1978 case involving for President Richard Nixon, in which the U.S. Supreme Court held that media outlets could not have access to tapes from a Watergate obstruction trial.

Among the documents sealed at the attorney general’s request are a chart listing local markets and dates Burson-Marsteller has recommended for purchasing advertisements to educate the public about the changes to the voter photo ID requirements. Another document names the 1,800 groups recommended to help spread the state’s voter messaging at the local level, a list compiled by the public relations firm.

The state has provided, in a court filing, a broad outline of how it plans to spend the $2.5 million, but so far has refused to release any details.

[…]

Texas’ open records law long has allowed the state to shield details about dealings with corporations on the basis that trade secrets or confidential corporate information could be disclosed.

In this case, Bill Cobb, an Austin lawyer who handles open records issues for corporations, said it is possible that some of Burson-Marsteller’s “secret sauce” could be at risk of being exposed if other PR firms competing for a state contract on voter education could benefit.

“Everyone agrees that open government is a good thing,” Cobb said. “but everyone agrees if Coke has to give its recipe to the government that its competitors aren’t allowed to get it.”

Cobb noted that a recent ruling from the Texas Supreme Court in a case involving Boeing has made it easier for the state and corporations to keep information secret.

“Companies have to make a business decision – could this information harm my future business prospects” said Cobb, a former deputy attorney general under Greg Abbott. “But now corporations don’t have to prove it’s a trade secret, just that a competitor could gain an advantage from acquiring the information.”

See here and here for some background. I’m sorry, but the stated rationale for keeping this all under wraps is a huge pile of baloney. How exactly are “a chart listing local markets and dates … for purchasing advertisements” or a list of “groups recommended to help spread the state’s voter messaging at the local level” proprietary information that could give an advantage to Burson-Marstellar’s competitors if they became known? This isn’t a product rollout for a new consumer toy or business innovation. It’s a public service project. It’s also a political campaign, and it should be held to the same standards of disclosure that any other campaign would be held to for things like advertising expenditures. Otherwise, we’re just taking Ken Paxton’s word for it that he and his office are doing everything they are supposed to be doing to comply with this ruling that by the way they still intend to appeal because they know they’re the ones in the right. What could possibly go wrong with that? Judge Ramos needs to amend her order to require some spilling of the beans.

Voter fraud: Still a myth

Just a reminder, in case you needed one.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Politicians and voting rights advocates continue to clash over whether photo ID and other voting requirements are needed to prevent voter fraud, but a News21 analysis and recent court rulings show little evidence that such fraud is widespread.

A News21 analysis four years ago of 2,068 alleged election-fraud cases in 50 states found that while some fraud had occurred since 2000, the rate was infinitesimal compared with the 146 million registered voters in that 12-year span. The analysis found only 10 cases of voter impersonation, the only kind of fraud that could be prevented by voter ID at the polls.

This year, News21 reviewed cases in Arizona, Ohio, Georgia, Texas and Kansas, where politicians have expressed concern about voter fraud, and found hundreds of allegations but few prosecutions between 2012 and 2016. Attorneys general in those states successfully prosecuted 38 cases, though other cases may have been litigated at the county level. At least one-third of those cases involved nonvoters, such as elections officials or volunteers. None of the cases prosecuted was for voter impersonation.

“Voter fraud is not a significant problem in the country,” Jennifer Clark of the Brennan Center, a public policy and law institute, told News21. “As the evidence that has come out in some recent court cases and reports and basically every analysis that has ever been done has concluded: It is not a significant concern.”

Lorraine Minnite, a political science professor at Rutgers University-Camden who wrote a book on the phenomenon in 2010 called “The Myth of Voter Fraud,” said in an interview that she hasn’t seen an uptick in the crime since. “Voter fraud remains rare because it is irrational behavior,” she said. “You’re not likely to change the outcome of an election with your illegal fraudulent vote, and the chances of being caught are there and we have rules to prevent against it.”

[…]

Texas Gov. Greg Abbott has called voter fraud “rampant” in Texas. A records request from News21 to the Office of the Attorney General of Texas shows that more than 360 allegations of voter fraud were sent to the attorney general since 2012. Fifteen of those cases were successfully prosecuted. Four of those convicted were voters – the rest were elections officials or third-party volunteers.

Minnite, who has studied voter fraud for 15 years, said that actual instances of fraud lie somewhere between the number successfully prosecuted and the number of allegations. In her experience, few allegations meet the criteria of fraud: “intentional corruption of the electoral process” by voters.

“Large numbers getting reduced, reduced, reduced at each level is the pattern that I’ve seen over and over and over again,” Minnite said. “The assumption should be the reverse of what it is. It should be ‘We’ve got a lot of errors here.’”

We’ve covered a lot of this before, so you know the drill. The logistics of vote fraud by impersonation have never made any sense, especially when compared to fraud by mail ballot, compromising electronic voting machines, or corrupting the vote counting process, but then it was never about making sense. Look at it this way: If voter fraud really is as “rampant” as Greg Abbott claims it is, then he was massively incompetent as Attorney General at rooting it out. And Ken Paxton isn’t any better at it, either. By their own logic, they were and are terrible failures as Attorney General.

Anyway. News21 is “a cornerstone of the Carnegie-Knight Initiative on the Future of Journalism Education”, which you can read about at that link. This story was part of their impressively large Voting Wars project, which features a load of stories about the process, politics, and demographics of voting. Check it out.

Schedule set for voter ID discrimination arguments

The next phase of the voter ID litigation will begin shortly after Election Day.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

A federal judge has scheduled oral arguments for Jan. 24 to determine if the Texas Legislature approved a voter ID law in 2011 with the intent to discriminate against minorities.

The U.S. 5th Circuit Court of Appeals ruled last month that Texas’ voter ID law had a discriminatory effect, but said a lower court judge overreached in finding that lawmakers had a discriminatory intent in passing the measure.

However, the federal appeals court instructed U.S. District Judge Nelva Gonzales Ramos to revisit the issue.

Ramos, in a two-page order Thursday, rejected arguments from Texas Attorney General Ken Paxton that she should back off the discriminatory intent claim until the Legislature has a chance to fine-tune the voter ID law when lawmakers come back to Austin. Paxton’s office proposed a schedule for the intent claim in which the first set of briefs would be filed on June 28 — 30 full days after the Legislature’s regular session is set to end.

[…]

The discriminatory intent claim is a key element in the still-pending voter ID case. If it is found that state lawmakers acted in that manner, the law could not only be struck down but it could open the door for a court to once again require Texas to seek federal approval when changing its elections laws.

You can see a copy of the order here. It’s important to note that the previous rulings didn’t actually throw out the voter ID law. You still have to show ID to vote, and if you have a driver’s license or other form of ID that had been acceptable under that law, you still have to show it. The ruling simply meant that other forms of ID, along with an affidavit swearing that you don’t have one of the originally sanctioned forms, is now sufficient to let your vote be counted. It’s an improvement to be sure, but it’s not a return to how it was pre-voter ID. A ruling that the intent of the law and not just the effect of the law was to discriminate would mean the law in its entirity would be tossed. The district court originally found such intent but the Fifth Circuit demurred, requiring the lower court to reconsider under a stricter set of parameters. That’s what this is about.

If the district court again finds discriminatory intent, then not only would the law be thrown out but preclearance under Section 3 of the Voting Rights Act would be back on the table. I think that’s unlikely (assuming the re-finding was upheld) on the grounds that North Carolina has not yet been put back under preclearance, but it’s still early. In any event, the schedule from the court is as follows: Both parties present their proposed findings of fact and conclusions of law to the court by November, 18th 2016, submit responsive briefings by December 16th, 2016, and oral arguments on January 24th 2017. Should make for an exciting first few weeks of the next legislative session as well. The Lone Star Project and Rick Hasen have more.

When is Texas going to file that voter ID appeal?

The Lone Star Project would like to know.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Last week, Texas AG Ken Paxton made a big show in the press by announcing that he would file an appeal with the U.S. Supreme Court challenging the ruling of the 5th Circuit Federal Court of Appeals that the Texas voter ID law is discriminatory in violation of the Voting Rights Act.  He bragged, “We’re going to take it to the highest court in the land and hopefully get this turned around.”

Yet now, more than a week later, Paxton hasn’t taken any action on the SCOTUS Appeal.  What gives?

Is Paxton scamming GOP activists?
Chances that the U.S. Supreme Court taking up the Texas case are not good, and the odds of him ultimately prevailing are worse.  The 5th Circuit U.S. Court of Appeals is the most conservative federal court in the nation, so it’s unlikely their finding of discrimination would be reversed.

Paxton’s advisors have likely informed him that a SCOTUS appeal is a longshot.  However, his political base is made up of the most extreme, divisive and irrational activists within the Texas Republican Party.  They drank the phony voter fraud Kool-Aid served up by Greg Abbott and other Republicans and likely won’t accept a rational legal decision.  Ken Paxton’s on the spot, so instead of shooting straight with his own supporters, he may be scamming them and stalling for time.

Is Paxton intentionally creating voter confusion through threats and delays?
The most likely reason for Paxton’s threat to appeal and his failure to follow through is to confuse voters and the media about what voting rules really will be followed in November.

By hitting the media talk show circuit and talking about a Supreme Court appeal, Paxton creates uncertainty.  At the same time, the state is issuing confusing and misleading documents implying that the overturned voter ID law remains unchanged.

And Paxton has gone far beyond talking about filing an appeal with the Supreme Court.  He went on Fox News and made a series of threatening remarks vowing to prosecute voters who may misunderstand or make a mistake under the new voting procedures.

Ken Paxton, Greg Abbott, and other Texas GOP leaders know that the most damaging aspect of their relentless insistence on a discriminatory voter ID law is that voters become uncertain about the rules and see the very act of voting as risky and intimidating.

Indeed, the announcement of an appeal was made on August 16. That was six days after the “softening” agreement was approved by the federal district court judge, and four full weeks after the Fifth Circuit ruling that affirmed the lower court ruling. I Am Not A Lawyer, and I know this sort of thing can take some time, but I don’t think it takes that long, especially given that the Fifth Circuit ruling was an en banc ruling that had affirmed the three-judge panel ruling last August. By the way, the state filed its request for an en banc review of that ruling in less than four weeks, so it’s not hard to conclude that they are taking their time here. And to be clear here, I don’t really care if they had decided to file an appeal or not. It’s that it’s not at all hard to believe, as the LSP alleges, that the main goal here is sowing confusion. If the intent is to file an appeal, then get on with it already. If not, then shut up and do what the court ordered.

Getting ready for the new voter ID universe

It’s a scramble.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

With roughly two months before early voting starts, Texas election officials are facing the difficult task of training thousands of poll workers and educating the public about court-ordered changes to a voter ID law – all while under an intense microscope.

That process is expected to be exacerbated by the sheer size of Texas, the volume of county election offices – 254 in all – an extreme time crunch and a politically-charged environment.

The heavy lifting starts now.

The Texas Secretary of State’s office late this week circulated final instructions to county officials about identification requirements for the Nov. 8 election – materials that will serve as guidance for local election administrators doing training.

In less than two weeks, Secretary of State Carlos Cascos is planning to embark on a statewide tour, where, according to court documents, he could visit San Antonio, Houston, Dallas, El Paso and the Rio Grande Valley, among a list of potential sites, to talk voter ID.

And around the same time, Texas is poised to start recording television and radio spots set to air in October, court documents say, the first steps in an estimated $1.3 million advertising campaign. That will also include digital, print and social media ads slated to start appearing by the first week of September.

[…]

“It’s going to be a real challenge. It takes a long time to get this election machinery moving, and the closer it gets to the election the more likely the implementation of the changes will get screwed up in various places,” said Joseph Fishkin, an assistant professor at the University of Texas at Austin who specializes in constitutional and election law. “You have so many poll workers in Texas that are well meaning but not necessarily well trained. There’s going to be a lot of low-level questions about how to implement the ruling successfully.”

As we know, all of this is part of the agreement that was hammered out between plaintiffs and the AG’s office, and approved by the federal district court judge. I agree with Professor Fishkin’s assessment, and we will need to be tolerant of well-meaning but misinformed election workers, at least this year. The main danger here isn’t for people who have voted before and who have an accepted form of ID to show. The concern is for the three or four million people who will show up in November who haven’t cast a vote during the voter ID era, including a significant number of people who will be voting for the first time. What happens when someone gives them bad information, and maybe causes them to decide they can’t vote at all? And let’s not forget, not everyone has good intentions. This quote here is troubling:

Harris County Clerk and chief election official Stan Stanart, who oversees one of the largest county election operations in the nation, said Friday he does not expect any problems with putting in place changes to the law. That’s mostly because he is not expecting much of an influx of people lacking one of the state-approved ID.

“The numbers are going to be small,” said Stanart, who estimates 6,000 election workers will be trained in Harris County before November. “That’s our experience with voter ID.”

But Stanart also issued a warning: his office will look into those signing affidavits claiming they don’t have required identification. He said voters who lied will be turned over to the district attorney.

“People are signing an oath. They are swearing they don’t have an ID,” he said. “If they think they can come in and vote without an ID when they have one sitting in their pocket, that’s going to be a problem.”

Stan Stanart is one of those people who doesn’t have good intentions. That sounds an awful lot like a threat the treat people who show up with a form of ID that is on the agreement with suspicion. It’s one thing to have tolerance for honest mistakes. How much tolerance are we going to have for that?

Texas to appeal voter ID ruling to SCOTUS

Sure, whatever.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas plans to file an appeal to the U.S. Supreme Court challenging a lower court decision that found the state’s voter ID law discriminates against minorities.

Attorney General Ken Paxton’s office said Tuesday it will appeal the ruling to the high court “to protect the integrity of voting in the State of Texas.”

[…]

Texas had yet to file its appeal with the Supreme Court as of early Tuesday afternoon.

Chad Dunn, a lawyer representing U.S. Rep. Marc Veasey, D-Fort Worth, and the League of United Latin American Citizens in the case, said the state’s appeal will lead to more taxpayer money being wasted on litigation. The state has spent around $3.5 million on legal fees related to its voter ID law.

“Every court that has reviewed this case so far has ruled against Texas,” said Dunn.

Just a reminder, the Fifth Circuit ruling was handed down on July 20, nearly four weeks ago. Since then, the state and the plaintiffs have agreed to a remediation plan to conform to the ruling, and yesterday the state released its detailed plan for voter education and elected official training on the new ruling. The timing of this is, shall we say, odd. Rick Hasen speculates:

Seemed clear from the filings there would be no emergency SCOTUS action. And if there were, I’m sure the SCOTUS emergency review would be denied because (1) Texas waited too long given the imminent election; (2) it has started an education program for voters and training of election officials on how the new rules work; and (3) there are not 5 votes on the 4-4 Supreme Court for such relief.

I also expect cert. will be denied eventually. Liberals will like the rulings. And conservatives won’t find a fifth vote to overturn this finding on the merits.

This is so even though there is something of a Circuit split on how to apply Section 2 of the VRA to new vote denial claims.

I guess this is a matter of playing the long game, hoping to get a reversal at some point in the future? Also in the “curious timing” department is the fact that North Carolina filed an “emergency” appeal to SCOTUS over its voter ID law, which they took 17 days to get to. Not that much of an emergency, it would seem, but what do I know? Anything is possible, but the most likely outcome at this point is that nothing will change for either state, at least for this election. After that, we’ll see who gets inaugurated next January 21 and (one hopes) finally gets a ninth Justice confirmed. The DMN, the Lone Star Project, Think Progress, and SCOTUSBlog have more.

Voter ID changes approved

We’re all set.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas’ voter ID law, cast as the strictest in the nation, will be substantially watered down during November’s election after a federal judge Wednesday approved a deal that allows those lacking required identification to cast a ballot by signing an affidavit.

U.S. District Judge Nelva Gonzales Ramos agreed to terms worked out between Texas and several minority groups, which requires the state to spend $2.5 million on a voter education campaign. Ramos also ordered that Texas allow the groups suing have input on the state’s outreach efforts.

[…]

Under the approved deal, acceptable identifications were expanded to include voter registration cards, birth certificates, utility bills, paycheck stubs and government documents with the voter’s name and address.

Along with one of the alternate IDs, voters will also have to sign an affidavit and check a box saying why they were unable to obtain one of the identifications required under the law. The deal also provides safeguards to prevent poll workers and election officials from questioning Texans lacking identification at the ballot box.

Democrats said the Republican-controlled Legislature could have provided protections for voters lacking necessary identification to still be allowed to cast ballots but opted instead to pass a bill that has been mired in litigation for years.

“This fix will provide welcome relief to the 600,000 Texas voters who have been disenfranchised by the state’s discriminatory voter ID law,” state Rep. Trey Martinez Fischer, a San Antonio Democrat and the chairman of the Mexican-American Legislative Caucus, which is a plaintiff in the case, said in a statement. “Unfortunately, we need not have waited three years or spent millions of taxpayer dollars to get to this point.”

See here, here, and here for the background, and here for the full statement from MALC. The item about the plaintiffs having a say on how the outreach efforts go is a win as well, since they were skeptical about it to begin with.

Lawyers for Texas have disclosed that Burson-Marsteller, a public relations giant and global strategic communications firm with an Austin office, is under contract with the state to develop voter outreach efforts for the current year.

That includes a roughly $2.5 million plan Texas agreed to put in place after a federal appeals court last month found its voter ID measure discriminates against minorities.

Burson-Marsteller is no stranger to helping Texas with voter education plans, contracting with the state as far back as 2006. But Texas’ outreach efforts focused on the controversial photo ID law have been cast as lackluster by minority groups and federal courts, including a plan designed for the 2014 elections by Burson-Marsteller in which the state spent $2 million on an education campaign.

In a court filing last week, Texas said Burson-Marsteller and a subcontractor, Austin-based TKO Advertising, have already consulted with the state to design a “multi-faceted strategy to reach and educate voters” about changes to the voter ID law for the upcoming election. Texas says that plan is ready to be executed.

However, lawyers suing the state said they remain concerned about Texas’ willingness to reach out to voters and to train poll workers — and Burson-Marsteller’s involvement doesn’t help that perception.

“It gives us less confidence,” said Jose Garza, a lawyer for the Mexican-American Legislative Caucus, which is a plaintiff in the case. “The state’s historical track record is not a very good one on this issue.”

As that second story notes, the oversight item was one on which the two sides did not agree. It’s not hard to understand why the plaintiffs had their doubts, given the association with previous “outreach” efforts. I’m hopeful this will ensure things go as smoothly as can be expected.

That said, this still isn’t over.

Texas Attorney General Ken Paxton, a staunch supporter of the voter ID law, signaled that he won’t give up the case any time soon. The legal battle over what is said to be the nation’s strictest voter ID law has already cost state taxpayers more than $3.5 million.

“This case is not over,” Paxton’s spokesman, Marc Rylander, said in a statement. “Given the time constraints of the November elections and the direction of the Fifth Circuit, today’s order by the district court is an interim remedy that preserves the crucial aspects of the Voter ID law for this November election, while we continue evaluating all options moving forward, including an appeal of the Fifth Circuit’s decision to the U.S. Supreme Court.”

Seems highly unlikely to me that there are five votes on SCOTUS to overturn the Fifth Circuit decision, but as we know it’s not the winning or losing that motivates Paxton, it’s the rallying of the troops. A glorious defeat works just fine for his purposes. The Lege will take another crack at this next year, though it remains to be seen what that might amount to. I feel pretty confident saying what we have now is what we’ll have in November. Beyond that, we’ll see. The Texas Civil Rights Project has more.

The Lege will look at voter ID again next year

This isn’t over.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Local representatives said the [agreed-upon changes to the voter ID law are] fine for a quick fix, but they fully expect to revisit the issue next session.

The proposed Texas changes would require registered voters who don’t have one of the seven forms of suitable ID, in addition to signing an affidavit, to present either a birth certificate, utility bill, bank statement, paycheck or a government document. Under the Texas law, election officials would be prohibited from questioning a voter’s inability to obtain an ID.

Officials with the Lubbock County Elections Office are saying they’re awaiting direction from state officials on how now to proceed in upcoming elections.

Sen. Charles Perry, R-Lubbock, who co-authored the ID law, said it’s a fix for November, but it’s not the solution the state will be content with going forward, saying it will be addressed next session. He said hopefully the threat of the affidavits being audited for the penalty of perjury will be a deterrent for false voters, and he said those affidavits actually being audited will be key to this fix.

He told A-J Media he’s confident state officials in the next session will craft legislation in compliance with the court’s filings to both meet constitutional requirements and protect the integrity of the ballot box.

Rep. John Frullo, R-Lubbock, said there are already penalties in place for someone trying to cheat the system, so his thought is that being forced to sign another piece of paper — the affidavit — isn’t really accomplishing much. He said these new forms of presentable ID don’t go through the same rigor as the seven acceptable forms passed, which is why they weren’t included in the first place.

“I think we’ve got more work to do next session to simply make sure people are who they say they are,” Frullo said. “That’s the bottom line.”

See here, here, and here for the background. If the Republicans are serious about “fixing” the voter ID law, there are two basic things they can do: Allow for a larger set of acceptable forms of ID, and provide more places for people who lack ID to get a state-provided election ID card. The reason why the law was so often described with words like “harsh” and “strict” was the list of allowable IDs, which was not only minimalist but also crassly political; there’s no objective reason why concealed handgun licenses were acceptable, but student IDs and out-of-state drivers’ licenses weren’t. A more realistic list of acceptable IDs, one for which the roster of people who lack any of them was drastically smaller, would go a long way. People who have been faithfully voting their whole adult lives should not suddenly be unable to do so because they don’t drive or carry a handgun.

Point two is that you shouldn’t have to travel a long distance to acquire an acceptable form of ID. Let’s not forget, the passage of the voter ID law, which stipulated that state-provided election ID cards could only be gotten at DPS offices, came in the same session where multiple DPS offices were closed due to budget shortages. A simple fix here would be to allow people to apply for election ID cards at any county government building, with the state covering any costs incurred by counties for providing that service. I can’t even think of a good argument against that.

Now to be sure, even if the Lege does what I suggest, I still oppose voter ID. I believe voting should be treated as a right that every 18-years-and-older citizen has, which can only be taken away under limited circumstances, and I will continue to advocate for that. In the meantime, though, this will deal with the main objections to Texas’ voter ID law, and will at least restore things to roughly what they were before the law passed in 2011. I’ll take that for now.

Voter ID law changes agreed to

We have a deal.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas struck a deal Wednesday that will soften its voter ID law for the November general election — a development that lawyers suing the state say will make it easier for minorities to cast their ballots.

The state reached the agreement with the U.S. Department of Justice and minority rights groups just a few weeks after a federal appeals court ruled that Texas’ 2011 voter identification law was discriminatory.

Under the new terms, registered voters will be able to vote without a photo ID, according to a copy of the rules provided by the state attorney general’s office. Those without an ID can sign an affidavit that certifies they are a U.S. citizen and present proof of residence, such as a utility bill, bank statement or paycheck. Texas must provide such affidavits in English, Spanish, Chinese and Vietnamese.

The terms also say election officials cannot question Texans lacking identification.

“This is a huge improvement from what the law was before,” said Luis Vera, one of the attorneys in the lawsuit against Texas.

[…]

Texas will also be required to spend $2.5 million on voter outreach before November. The terms specify that the state “shall continue to educate voters in subsequent elections concerning both voter identification requirements and the opportunity for voters who do not possess SB 14 ID and cannot reasonably obtain it to cast a regular ballot.”

The Chron adds on.

Lawyers for Texas and minority groups have been communicating daily by phone and email to hammer out terms for an agreement, according to a court filing last week that signaled the two sides were close to a deal on at least some terms for a remedy.

U.S. District Judge Nelva Gonzales Ramos still has to give final approval. A hearing has been set for next week.

“We’re very encouraged by this agreement. It provides critical safeguards for voters,” said Danielle Lang, a lawyer with the Campaign Legal Center, which is representing U.S. Rep. Marc Veasey, D-Fort Worth, in the case. “We would not have agreed to anything that we didn’t believe fully protected the citizens of Texas.”

Lang noted that lawyers for the minority groups could still file documents later Wednesday asking for the voter ID law to be softened beyond the terms agreed upon with the state.

Attorney General Ken Paxton’s office defended the law, but cautioned that the “case is not over.”

“In light of the Fifth Circuit’s recent decision, we are working hard on saving all the important aspects of our voter id law,” said Paxton spokesman Marc Rylander. “Given the time constraints of the November elections and the direction of the Fifth Circuit, today’s filings pertain to a proposed interim remedy while we continue evaluating all options moving forward, including an appeal of the Fifth Circuit’s decision to the U.S. Supreme Court.”

See here and here for the background. This is what was in place for the HD120 special election runoff, not that anyone voted in that race. Basically, what this means is that people who don’t have the limited forms of ID that the now-discarded SB14 required can use one of the forms of ID that used to be allowed. They’ll be casting provisional votes that will actually be counted. Someone asked me the other day what the effect of this ruling would be in Texas, and my answer was “some, at the margins”; it’s hard to say exactly how much because we never had – and now hopefully never will have – a Presidential election where SB14 had been enforced for comparison. Whatever the effect might have been, SB14 was a bad law and we’re good to be rid of it. Rick Hasen, who calls this “a darn good deal for the plaintiffs”, the Press, and the Lone Star Project have more.

Friday was a very good day for voting rights

In North Carolina:

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The United States Court of Appeals for the Fourth Circuit’s opinion in North Carolina State Conference of the NAACP v. McCrory is nothing short of a beat down. The court does not simply tear apart major provisions of the law, it catches state lawmakers at the center of a conspiracy to disenfranchise black voters, and it calls them out onto the carpet for it. By the time the court is done scraping the bloody mass of what was once North Carolina’s attempts to justify this law off the floor, the state’s leadership has been thoroughly shamed.

The court’s opinion — primarily written by Judge Diana Gribbon Motz, a Clinton appointee — is rooted in an important understanding of how race and partisanship interact in states like North Carolina with large minority populations.

[…]

As Judge Motz lays out the facts of this case, it’s hard not to come away with the conclusion that North Carolina’s lawmakers wanted to get caught engaging in unlawfully racial discrimination. Just one day after the Supreme Court gutted a key provision of the Voting Rights Act in Shelby County v. Holder, effectively eliminating federal supervision that could have halted this voter suppression law before it ever took effect, “a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an ‘omnibus’ election law.”

Before enacting that law, moreover, “the legislature requested data on the use, by race, of a number of voting practices.” After receiving that data, “the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.” Indeed, this data appears to have guided the state’s lawmakers in drafting a law that would have maximal impact on African-Americans.

The law did not simply contain a voter ID provision. Rather “the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans” while simultaneously retaining “only the kinds of IDs that white North Carolinians were more likely to possess.” (Although, in fairness, this provision was later watered down.)

The legislature’s data on racial voting patterns showed that “African Americans disproportionately used the first seven days of early voting,” and so “the General Assembly amended the bill to eliminate the first week of early voting.” The data showed that “African American voters disproportionately used [same-day registration] when it was available,” and so same-day registration was cut as well. The law also eliminated out-of-precinct voting, which “required the Board of Elections in each county to count the provisional ballot of an Election Day voter who appeared at the wrong precinct, but in the correct county, for all of the ballot items for which the voter was eligible to vote.” African-Americans, meanwhile, were especially likely to take advantage of this practice.

Yet for all these changes, the lawmakers exempted absentee voting from the law’s new voter ID restriction, and it did so after discovering “that African Americans did not disproportionately use absentee voting; whites did.” Thus, as Motz summarizes the facts of the case, “the General Assembly enacted legislation restricting all — and only — practices disproportionately used by African Americans.”

Wonkblog adds on:

Most strikingly, the judges point to a “smoking gun” in North Carolina’s justification for the law, proving discriminatory intent. The state argued in court that “counties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic,” and said it did away with Sunday voting as a result.

“Thus, in what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race — specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise,” the judges write in their decision.

This is about as clear-cut an indictment of the discriminatory underpinnings of voter-ID laws as you’ll find anywhere. Studies have already shown a significant link between support for voter ID and racial discrimination, among both lawmakers and white voters in general.

“Faced with this record,” the federal court concludes, “we can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent.”

Ari Berman and Rick Hasen have their own analyses. North Carolina can ask for an en banc review, where the makeup of the full Fourth Circuit is unlikely to favor them, and they can appeal to SCOTUS, where they are unlikely to get five votes. This ruling opens the door to North Carolina being put back under federal oversight – that is, preclearance – for changes to election laws there, but it did not require it. That may yet come, as may also happen with Texas once the district court here reviews the Fifth Circuit voter ID ruling. (On that note, the hearing on how to mitigate Texas’ voter ID law is now set for August 10.) For now, this pernicious law, which was at least as bad as Texas’, has been thrown out. That would be reason enough to celebrate, but we also got good rulings in Wisconsin and Kansas, too. It’s clear to me that what we need is a constitutional amendment affirming that anyone who is eighteen, a citizen, and not currently under a felony conviction, has the right to vote and that any law that abridges that right is illegal. There are a lot of things on the progressive to-do list right now, but that one needs to be up there.

New affidavit procedure implemented for HD120 special election runoff

Seems likely this is what we’re going to get for November.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Now before the Court comes the Consent Motion for Entry of Temporary Remedial Order, filed on July 23, 2016. The Court has considered the motion and determined that it should be GRANTED.

IT IS THEREFORE ORDERED that the Motion for Entry of Temporary Remedial Order is GRANTED.

LIMITED INTERIM RELIEF

With regard to the special election for Texas House District No. 120 on August 2, 2016, with early voting to begin on July 25, 2016, if a voter seeking to cast a ballot appears on the official list ofregistered voters but does not possess an acceptable form of photo ID due to a reasonable impediment, the following steps shall be taken by the election officer to allow the voter to cast a provisional ballot:

  • Provide the Reasonable Impediment Affidavit form, attached as Exhibit B, or a Spanish language translation thereof, to the voter, and ask the voter to provide one of the following forms of identification:
    a. A valid voter registration certificate, or
    b. A current utility bill, bank statement, government check, paycheck, or other government document that shows the name of the voter.
  • If the voter does not have one of the above forms of identification, they must provide their date of birth and the last four digits of their social security number in the space provided on the Reasonable Impediment Affidavit form.
  • Ask the voter to complete this form by entering their name, address, and, where applicable, date of birth, and last four digits of their social security number, and then ask them to review the “Voter’s Affldavit of Reasonable Impediment,” indicate their impediment, and sign their name.
  • Ask the voter to return the completed form to the election judge. The election judge should indicate at the bottom of the form what type of identification the voter provided. The election judge whould enter the date and sign in the space provided.
  • Provide the “Affidavit ofProvisional Voter” envelope to the voter, and ask them to complete the voter portion on the front side of the envelope.
  • Ask the voter to return the completed envelope, and on the reverse side, the election judge shall complete their portion. The election judge should mark “Other” and indicate that the voter is casting a provisional ballot due to a reasonable impediment. The election judge should enter the date and sign in the space provided.
  • Staple the Reasonable Impediment Affidavit form to the “Affidavit of Provisional Voter” envelope, and the voter shall proceed to cast a provisional ballot.

Upon confirmation that the “Affidavit of Provisional Voter” envelope is complete and that the Reasonable Impediment Affidavit is attached, the ballot shall be counted by the provisional balloting board unless there is conclusive evidence that the affiant is not the person in whose name the ballot is cast.

The Secretary of State will provide the Reasonable Impediment Affidavit form to the Bexar County Elections District for distribution to election officials.

Link via Rick Hasen. This is more or less what we expected after the parameters for “softening” Texas’ voter ID law after the Fifth Circuit ruling was handed down. This order specifies that both sides may still “seek or oppose future orders of relief”, so just because this is the process that the handful of people who will vote in the essentially meaningless runoff for the HD120 special election doesn’t mean it is what we’ll get for November. For that, District Court Judge Nelva Ramos has requested briefs from both sides by August 5, with a hearing on August 17, and a ruling to presumably follow in short order. Early voting for that HD120 runoff happens this week, so we may get a bit of real world data on how this solution works, though given the low stakes of that election and the likelihood of miniscule turnout, I wouldn’t expect much. The briefs and the hearing will tell us what we should expect. The Lone Star Projectand the Trib have more.

UPDATE: From Texas Lawyer:

On July 21, Matt Frederick, the deputy Solicitor General of Texas, responded to the court’s inquiry about any possible appeal of the Fifth Circuit ruling by stating that Texas did not intend to seek a Supreme Court review “at this time.”

[…]

[Deuel Ross, assistant counsel to the NAACP Legal Defense and Educational Fund, who represents plaintiffs challenging the Texas voter ID law], said the challengers were “satisfied” with the voter identification rules that Ramos has established for the Bexar County special election.

“We think the relief is appropriate,” he said.

Kayleigh Lovvorn, a spokeswoman for the Texas Attorney General, said in an email about the state’s plan to response to the Fifth Circuit ruling: “At this time, we are in discussions with the plaintiffs and are evaluating all of our options.”

We’ll see if they come to an agreement for November.

What next for voter ID?

Rick Hasen, writing in Slate:

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The trial court was ready to throw out the entire law, but the 5th Circuit said such a remedy went too far. The court held that when a trial court finds a law has a discriminatory effect under Section 2 of the Voting Rights Act, it has to keep as much of the law in place as it can while still fixing the illegal part. In this case, the appeals court told the trial court to keep the voter identification law in place but create an alternative means to vote for those who face a reasonable impediment in producing the right form of identification. For example, the trial court may order that a voter be able to vote after signing a form under penalty of perjury saying he faced a larger barrier to get an ID. The appeals court sent the case back to the trial court to figure out exactly how to soften the law.

This kind of remedy is a win for the plaintiffs, though it’s not as good as what the trial court proposed by throwing the entire law out. Other states, such as South Carolina, have softened their voter ID laws, but in practice this softening doesn’t always work well, in part because voters and poll workers aren’t aware voters can vote without the right ID if they have a reasonable impediment to getting one.

But that softening isn’t the biggest news to come out of the appeals court decision. To find it, you have to read all eight of the opinions together in light of the trial court’s finding that Texas not only violated the Voting Rights Act by passing a law with a racially discriminatory effect but that it also passed the law with a racially discriminatory intent. Upon finding a racially discriminatory intent, the trial court would be free to put Texas back under federal “preclearance” of its voting rules for up to 10 years, the kind of oversight the United States Supreme Court got rid of for a large number of states (including Texas) in the 2013 decision Shelby County v. Holder.

The appeals court divided badly in reviewing the trial court’s finding of racially discriminatory intent. Imagine that the trial court found bad intent from two baskets of evidence, Basket A and Basket B. Counting noses, a majority of 5th Circuit judges believed that the trial court’s analysis went too far in inferring discriminatory intent in considering what was in Basket A, such as statements by the law’s opponents in the state Legislature as to the intent of the legislators who passed the bills. But, again counting noses, a different majority of 5th Circuit judges believes that there is enough evidence in Basket B from which the trial court could indeed infer that Texas passed its law to discriminate against Texans who are Latino or black. It sent the case back for the trial court to reconsider the question looking just at Basket B, and a finding of racially discriminatory intent from the trial judge again seems likely.

The dissenters suggested that at worst the evidence showed an intention by the Republican-dominated state Legislature to discriminate against Democrats, not against blacks or Latinos. A majority of judges, noting an overlap among racial and partisan groups in Texas, didn’t buy it. In a place like Texas, it makes no sense to separate race and party. As the majority explained, “Intentions to achieve partisan gain and to racially discriminate are not mutually exclusive.” And as one of the judges who believed that evidence from both Baskets A and B proved Texas engaged in racial discrimination put it, if Republicans in the Texas Legislature, out of partisan motives, selected a course of action “at least in part because of, and not merely in spite of, its adverse effects on an identifiable group, that is enough” to show racial discrimination.

Zachary Roth notes that while this win wasn’t as big for the plaintiffs as it could have been, it was still pretty big.

Immediate consequences aside, Wednesday’s opinion was noteworthy for painting a picture of Texas’s Republican lawmakers as, at best, indifferent to the struggles of the state’s low-income and minority voters to get an ID. The ruling also offered firm rebuttals to many of the arguments made both by Texas in support of its law, known as SB 14, and by ID proponents more broadly. That it came from Judge Catharina Haynes, a staunch conservative — though one with a reputation for independence — writing for likely the most conservative federal appeals court in the nation, only bolstered its impact.

The appeals court affirmed Gonzales Ramos’s finding that the law’s drafters were aware that it would make it harder for minorities to vote, but they nonetheless rejected a slew of measures that would have softened its impact, largely refusing to explain why. The ruling also swiftly dispatched Texas’ claim that the plaintiffs hadn’t identified a single person who faces a substantial obstacle to voting thanks to the law, noting several people who the district court found were clearly disenfranchised by it. (News reports, including from MSNBC, have turned up many more.) And it slammed the state for devoting “little funding or attention to educating voters about the new voter ID requirements.”

Perhaps most forcefully, the opinion derisively rejected Texas’ claim that the law was needed to prevent voter fraud.

“Ballot integrity is undoubtedly a worthy goal,” Judge Haynes wrote. “But the evidence before the Legislature was that in-person voting, the only concern addressed by SB 14, yielded only two convictions for in-person voter impersonation fraud out of 20 million votes cast in the decade leading up to SB 14’s passage. The bill did nothing to combat mail-in ballot fraud, although record evidence shows that the potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting.”

Haynes also noted that preventing non-citizens from voting was offered as another rationale for the bill “even though two forms of identification approved under SB 14 are available to noncitizens.”

“The provisions of SB 14,” Haynes wrote, “fail to correspond in any meaningful way to the legitimate interests the State claims to have been advancing through SB 14.”

Instead, the court suggested, the law had a different purpose. “The extraordinary measures accompanying the passage of SB 14 occurred in the wake of a ‘seismic demographic shift,'” Haynes wrote, “as minority populations rapidly increased in Texas, such that the district court found that the party currently in power is ‘facing a declining voter base and can gain partisan advantage’ through a strict voter ID law.”

The opinion also took on an argument used more broadly in support of ID laws: That they must not keep people from voting, since turnout rates have increased, compared to previous years, in elections where they’ve been used. As Haynes noted — and as voting rights advocates challenging voting restrictions have been at pains to point out from Texas to North Carolina to Wisconsin — turnout fluctuates for all sorts of reasons. “That does not mean the voters kept away were any less disenfranchised,” Haynes wrote.

Perhaps most far-reachingly, the opinion in several places starkly rejects Texas’ effort throughout the case essentially to narrow Section 2 of the Voting Rights Act so that it would bar only intentional and blatant acts of racial discrimination in voting. That’s a crusade that for decades has been pursued by numerous leading conservative legal minds, as they’ve looked to further weaken the landmark civil rights law.

Instead, the court affirmed, the law must recognize that racial discrimination usually comes in subtler forms. “To require direct evidence of intent would essentially give legislatures free reign [sic] to racially discriminate so long as they do not overtly state discrimination as their purpose and so long as they proffer a seemingly neutral reason for their actions,” Haynes wrote, “This approach would ignore the reality that neutral reasons can and do mask racial intent, a fact we have recognized in other contexts that allow for circumstantial evidence.”

Texas’s interpretation of the law, Haynes added “effectively nullifies the protections of the Voting Rights Act by giving states a free pass to enact needlessly burdensome laws with impermissible racially discriminatory impacts. The Voting Rights Act was enacted to prevent just such invidious, subtle forms of discrimination.”

Reading Section 2 in the way Texas recommends, Haynes wrote, would “cripple” the Voting Rights Act, and “unmoor” it “from its history and decades of well-established interpretations about its protections.”

Stop for a moment and savor the irony here. Texas Republicans passed the odious and now-dead HB2 not just to effectively outlaw abortion in the state, but also as part of a national strategy to render null Roe v. Wade. Indeed, one of the judges at the same Fifth Circuit basically dared SCOTUS to overturn Roe in her opinion. Instead, the ruling by SCOTUS not only upheld Roe v. Wade (more accurately, it upheld Planned Parenthood v. Casey), it basically cut off at the knees the very strategy that anti-abortion forces had been using with HB2 and elsewhere in the country. Large swaths of anti-abortion legislation fell or are falling as a result. Now here with voter ID, the legal strategy in its defense was to gut Section 2 of the Voting Rights Act. Not only did that fail with a giant thud, Texas may wind up back under preclearance because of how voter ID was adopted. In both cases, the railroading of the opposition to these bills and the utter indifference to any and all objective facts surrounding their effect came back to bite the state and the Republicans responsible for these laws squarely on the ass, and may do more damage to their cause than anything the Democrats (who fought like hell against both bills despite being completely outgunned) could have done. Bravo, ladies and gentlemen. Bravo, Rick Perry and Greg Abbott and David Dewhurst and Dan Patrick and Ken Paxton. You all may wind up making a positive contribution to this state’s future after all.

Anyway. We now know what the “softening” of voter ID may look like. Hasen again:

It is further ORDERED that any plan for interim relief must include terms regarding the following:

  • All persons who have SB 14 ID or who have the means to get it in time for the November 8, 2016 election must display that ID in order to vote;
  • No ID that is easily counterfeited may be used in any ameliorative provision;
  • There must be an impediment or indigency exception, which may include reinstatement of the ability to use the voter registration card for such voters;
  • The State must educate the public in a meaningful way about the SB 14 ID requirements and all exceptions to those requirements that are set out in the original law and in the interim plan adopted by this Court;
  • The State must educate and train workers at polling places to fully implement the resulting plan; and
  • The plan shall address only the discriminatory effect holding of the Fifth Circuit’s opinion and shall not include relief that would be available only in the event that this Court finds, upon reweighing the evidence, that SB 14 was enacted with a discriminatory purpose.

Emphasis mine, and you can see the order here. I don’t have any faith in the state’s motivation to “educate the public”, but perhaps the threat of sanctions may light a fire or two. We’ll see how it goes. More from Hasen is here, and Texas Standard, Reuters, the Trib, the Chron, and the Current have more.

Fifth Circuit affirms voter ID ruling

Made it by the deadline.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas’ voter identification law violates the U.S. law prohibiting racial discrimination in elections, a federal appeals court ruled Wednesday.

The U.S. 5th Circuit Court of Appeals affirmed previous rulings that the 2011 voter ID law — which stipulates the types of photo identification election officials can and cannot accept at the polls — does not comply with the Voting Rights Act.

The full court’s ruling delivered the strongest blow yet to what is widely viewed as the nation’s strictest voter ID law. Under the law, most citizens (some, like people with disabilities, can be exempt) must show one of a handful of types of identification before their ballots can be counted: a state driver’s license or ID card, a concealed handgun license, a U.S. passport, a military ID card, or a U.S citizenship certificate with a photo.

[…]

The case centered on whether Texas discriminated against Hispanic and African-American voters when it passed the legislation: Senate Bill 14.

Paxton, Gov. Greg Abbott and other proponents argued that the law was needed to bolster security at the ballot box by preventing voter fraud, but opponents cite the paucity of proven in-person voter fraud in the state and argue the intent was to undercut the electoral strength of the state’s growing minority population — people less likely to have photo identification or the means to obtain an election certificate.

Experts have testified that more than 600,000 Texans lack such identification, though not all of them have necessarily tried to vote. Those citizens can obtain “election identification certificates” free of charge, but only if they are able to produce a copy of their birth certificate.

Texas argued that opponents of the law had “failed to identify a single individual who faces a substantial obstacle to voting because of SB 14.” In Wednesday’s ruling, the majority rejected that argument.

“For one thing, the district court found that multiple Plaintiffs were turned away when they attempted to vote, and some of those Plaintiffs were not offered provisional ballots to attempt to resolve the issue,” the ruling stated.

The majority also affirmed the lower court’s finding that Texas’ “lackluster educational efforts resulted in additional burdens on Texas voters.”

Seven of the court’s 15 judges backed the decision in full. Two other judges backed most of the decision. Dissenting judges wrote that the “en banc court is gravely fractured and without a consensus. There is no majority opinion, but only a plurality opinion that draws six separate dissenting opinions and a special concurrence.”

More specific to the Texas law, some of the dissenting judges wrote that “requiring a voter to verify her identity with a photo ID at the polling place is a reasonable requirement widely supported by Texans of all races and members of the public belonging to both political parties.”

Voting rights advocates were quick to praise the appeals court’s overall decision Wednesday.

“We have repeatedly proven – using hard facts – that the Texas voter ID law discriminates against minority voters,” Gerry Hebert, executive director of the Campaign Legal Center and an attorney for the plaintiffs, said in a statement. “The 5th Circuit’s full panel of judges now agrees, joining every other federal court that has reviewed this law. We are extremely pleased with this outcome.”

See here and here for some background, and here for a copy of the ruling. I’ve seen several headlines declaring that the Fifth Circuit “struck down” the voter ID law. That’s not the case at all – in fact, they said it should be enforced for the people who have the mandated ID. Rick Hasen explains what they did order:

The bottom line is that the majority of the 5th Circuit has done what the panel opinion had originally held: there is a remand on the question whether Texas acted with a discriminatory purpose, but there is enough evidence of a discriminatory effect so as to render the Texas id law a Voting Rights Act violation.

BUT, and this is a big but, the remedy is NOT going to be to strike the Texas voter id law as a whole, but instead to fashion some kind of relief that give people who have a reasonable impediment to getting an id the chance to get one. This might be like the affidavit requirement just approved yesterday in the Wisconsin case, or something else (like an indigency exception affidavit). Further, given the timing of the election, the trial court has to craft some kind of interim relief and then can figure out a more comprehensive solution after the next election.

BUT, BUT there is a very strong dissent from the 5th Circuit’s most conservative members, and that might give Texas a reason to go to the Supreme Court to try to get this emergency interim relief stayed.

BUT, BUT BUT: the Supreme Court has now lost Justice Scalia, and at best Texas could hope for only 4 votes to reverse what the 5th Circuit has done. Indeed, I’m not sure that even Justice Kennedy/Chief Justice Roberts would be on board. If the court ties, the 5th circuit en banc decision stands. (There’s also the possibility of an argument that the interim relief ordered for this election comes too late under the Purcell Principle, but given that the 5th Circuit acted just within the soft July 20th deadline the Supreme Court set, I think the plaintfiffs will be safe in this regard).

FINALLY, these kinds of softening devices are not all they are cracked up to be, and there’s lots of evidence they are not used by lots of voters who need it. (I discuss this disjunction between theory and practice in Softening Voter ID Laws Through Litigation: Is it Enough?, Wisconsin Law Review Forward (forthcoming 2016) (draft available)). One of the 5th Circuit judges, Judge Higgonson, concurring, has a footnote reading: “I also disagree with the opposite criticism that this interbranch engagement ameliorates too little, though that argument is contributory. See Richard L. Hasen, Softening Voter ID Laws Through Litigation: Is it Enough?, WISC. L. REV. FORWARD (forthcoming 2016), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2743946 (with apologies to Professor Hasen for my citation of his draft version).”

This is a win for the plaintiffs, no doubt, but not nearly as good as getting the law thrown out for everyone.

Ian Millhiser at Think Progress generally concurs with Hasen:

So the court, after considering a complicated array of factors presented by such cases, held that the law violates the Voting Rights Act. That’s the good news for voting rights. The bad news is two-fold.

First, a majority of the Fifth Circuit determined that “there are infirmities in the district court’s” conclusion that Texas acted with discriminatory intent, although it also returned the case to the lower court to reconsider whether such intent existed. That matters for several reasons, the most potentially significant of which is that Section 3 of the Voting Rights Act permits states that act with racially discriminatory intent to be subjected to continuing federal supervision of their voting laws. If the courts ultimately conclude that Texas acted with discriminatory intent, they could also decide to place Texas under the same kind of supervision that the Supreme Court eliminated in its 2013 decision striking down part of the Voting Rights Act.

Additionally, while the Fifth Circuit found Texas’ voter ID law wanting, it is unclear what the remedy will be for this violation of the law. “We acknowledge that the record establishes that the vast majority of eligible voters possess SB 14 ID, and we do not disturb SB 14’s effect on those voters” the court writes,” adding that “those who have SB 14 ID must show it to vote.” It instructs the lower court that the eventual “remedy must be tailored to rectify only the discriminatory effect on those voters who do not have SB 14 ID or are unable to reasonably obtain such identification.” (One possible solution is that the remedy could match the same one handed down by a Wisconsin federal judge in a similar case on Tuesday.)

So this is a victory for voting rights, but not a total one. Nevertheless, given the Fifth Circuit’s conservatism, it is a surprising decision. And no doubt a welcome one for voting rights supporters.

Here’s more on that Wisconsin decision. The district court may try to craft a solution, but as Andrea Greer notes, it’s not out of the question that Greg Abbott could call a special session to try to “fix” the law. Mostly, it’s a matter of timing. The law as it exists cannot be used – there must be a remedy for the people who don’t have ID. That needs to be in place probably in the next six to eight weeks, to ensure there’s enough time for local election admins to communicate to voters what they will need to be able to vote. Striking the whole thing down would have been better and less confusing, but this is what we’ve got. There’s also still a chance that the district court could find discriminatory intent again under the new standard the Fifth Circuit set, and I presume that one way or another, this will eventually go to SCOTUS. But for now, a decent if not resounding win. The Chron story is here, and Courthouse News, the Brennan Center, the Press, the Rivard Report, and PDiddie have more.

We should hear something soon on voter ID

So says Rick Hasen:

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The federal challenge to Texas’s strict voter identification law is pending before the entire Fifth Circuit sitting en banc.  The Supreme Court set a soft July 20 deadline for a decision—after that the Court has invited plaintiffs to seek immediate relief for this election before the Supreme Court. There’s nothing technically binding about that date, but I expect we will see a decision by then from the Fifth Circuit, and then, whatever happens, I expect an emergency motion to the Supreme Court for whichever side loses.

Meanwhile, the never ending federal district court challenge to Texas’s redistricting remains pending in San Antonio, with a delay that at this point is as inexplicable as it is inexcusable. That case, when decided, will be on a fast-track appeal to the Supreme Court as well, but with any ruling relevant only for elections after 2016.

We are also waiting for other decisions, and one of those big ones is the appeal to the Fourth Circuit of North Carolina’s strict voting laws. That one, too, will likely end up with a request for emergency relief from SCOTUS.

See here and here for the background. Last August, a three-judge panel at the Fifth Circuit affirmed the lower court ruling that Texas’ voter ID law had a discriminatory effect, and the state asked for an en banc review shortly afterward, mostly for the purpose of dragging things out past the 2016 election. Hasen had previously predicted that the full Fifth would uphold its own ruling, but of course you never know. If they do, then the good news is that a 4-4 SCOTUS split would leave it in place. That’s also the bad news if they don’t. In theory, we should know soon enough. PDiddie, from whom I got the link, has more.