Charles Kufffner (and many others, like the Center, TX, Light and Champion)) have been on this; here's a few of the latest developments and some legal interpretation from Joseph Kulhavy of the Texas Election Law blog.
On September 22, 2016, the Texas House of Representatives Elections Committee conducted a routine interim hearing on various technical matters relating to election administration. For three and a half hours the committee members and witnesses discussed proposed legislative tweaks to the petition signature process, to municipal elections, to obligation bonds and taxes, and so on. You can watch the whole hearing if that’s your thing, but for my money the really interesting stuff doesn’t come up until the very end ...
As the hearing wrapped up, State Representative Celia Israel asked an official from the Texas Secretary of State’s office about a court order that had been issued two days prior to the committee hearing. In particular, Representative Israel was curious to find out what the State was doing to educate voters about I.D. requirements for the November 8, 2016, election.
In response to the questions, Director of Elections Keith Ingram explained that the State had incorporated the text of the court’s most recent directive into the website and upcoming print and media advertising; he specified that voters who “do not possess [the statutorily mandated forms of photo I.D.] and cannot reasonably obtain it,” could cast a regular ballot by completing a “Declaration of Reasonable Impediment,” if they also supplied alternate forms of documentary evidence of their identity.
Representative Mike Schofield then took the discussion in a new direction (starting at the 3 hour, 36 minute mark), after asking if the State could track information about whether the Declarations were submitted by people who actually have I.D.:
What I don’t want to see is a gross number, and everybody acts as if those people don’t have I.D…. If you pretend you don’t have it, and use one of these declarations, that’s illegal, isn’t it?
In response to the question, Mr. Ingram clarified that voters entitled to use the Declaration would be those who had either never been issued one of the six forms of photo I.D. listed under the law, or those whose previously issued I.D.s had been lost or destroyed, and who had a reasonable impediment to replacing the missing I.D.
Representative Israel raised a hypothetical situation (described starting at 3 hours 45 minutes) in which a voter’s “reasonable impediment” is that the voter is voting at a polling place on one end of town, but left her photo I.D. at home, at the other end of town.
In that circumstance, Mr. Ingram explained that assuming that the voter filled out the “Declaration” and wrote down that the reasonable impediment was “left my I.D. at home,” the election worker would have to take the declaration at face value and allow the voter to cast a ballot.
Representative Schofield seemed incredulous, asking, “Is that … is that correct? … You’re going to let them vote with a ‘Reasonable Impediment?'”
The Director of Elections responded:
The poll worker cannot challenge the ‘Reasonable Impediment’ asserted by the voter. …. But if that’s the reasonable impediment, I think the voter is at risk, because they’re not following the law. But that’s not for the poll worker to decide. [Emphasis added by Kulhavey.]
Committee vice-chair Craig Goldman then asked, “But, how does that get challenged, and then how is their vote null and void?”
The Director of Elections explained:
The vote will never be null and void. It’ll get challenged in an election contest, if it’s a close election. And obviously these things [the Declarations of Reasonable Impediment] will be available for folks to give to their district attorneys to follow up on. [Emphasis added by Kulhavy.]
Representative Schofield pressed the issue as the hearing entered its final minutes (at the 3 hour 46 minute mark):
I realize we’re going to have a lot of illegal votes and a lot of fraudulent votes. That’s why we have voter I.D. My concern is that there are going to be a lot of people trying to thwart the [voter I.D.] law who have valid drivers’ licenses; who have passports; and are going to assert these declarations. Their votes may count in this election, but I want to make sure that when we go back to court, we’re not saying ‘oh, there’s this huge number of people that filed these declarations.’ I want to drill down and find out which one of ’em [declarations] were bogus. [Emphasis added by Kulhavy.]
The Director of Elections responded, “And I’ll think you’ll be able to tell easily.” He then went on describe how one of the Declarations of Reasonable Impediment that had already been used in an off-season tax ratification election indicated that one voter had written that the “reasonable impediment” was “fascist law.”
The committee chair said: “Fascist law? They wrote that?”
Let's pause here for moment to summarize. The state of Texas, here represented by Mike Schofield and Craig Goldman, with an assist from Keith Ingram, is setting the stage for the prosecution of Texas voters on the basis of what is or isn't -- attempting to define the term legally, in the most onerous way -- 'reasonable impediment' for a voter to producing their photo ID. Continuing ...
What’s troubling about the exchange (aside from Representative Schofield’s counterfactual and inflammatory assertion that there’s going to be a lot of “fraudulent votes” in this election), and what should be especially troubling to the plaintiffs in the voter I.D. lawsuit, is the implication -- encouraged both by Representative Schofield’s assertion that “we’re going to have a lot of illegal votes,” and by the response from the Director of Elections that voters who use the Declaration can be tracked, and possibly referred to local district attorneys for prosecution for illegal voting—that voting without an approved photo I.D. is automatically suspect. (Emphasis is mine.)
So ... why is this suggestion of potential criminal prosecution troubling?
Because it is not a stretch to imagine that statements like this could have a chilling effect -- dissuading eligible, qualified voters without approved photo I.D. from voting. In other words, threatening to investigate voters who file a Reasonable Impediment Declaration could end up hurting the very group of voters that the August 10, 2016, court order was intended to help.
Think I’m exaggerating about “threatening to investigate”?
On September 9, 2016, Rick Hasen (...) posted a story on his Election Law Blog about the motion for enforcement of the August 10 court order filed by the private (non-Department of Justice) plaintiffs in Veasey v. Perry. These plaintiffs were reacting to this August 26, 2016, news story (as quoted in the private plaintiff’s motion):
[Harris County Clerk Stan] Stanart says he will investigate everyone who signs that form to assure they are not lying. Whether anything happens, that’s up to the [Harris County District Attorney’s Office]. But after the votes are counted and the election ends, Stanart said his office will be checking to see whether a person who signed the sworn statement has a Texas Department of Public Safety-issued ID through the DPS database.” (Meagan Flynn, Harris County Clerk Will Vet Voters Who Claim to Lack Photo ID, HOUSTON PRESS, Aug. 26, 2016.)
So to recap: As of late August in a presidential election year, the chief election official in Harris County, the most heavily populated county in Texas, was quoted as intending to investigate voters who claim they lack photo I.D.s.
That threat of punitive or retributive investigation prompted the federal district court in Corpus Christi to issue on September 20 a legal order, in which the court told the State to clarify and make explicit that voters who reasonably lacked photo I.D. were legally entitled to an alternate method of qualifying for a regular ballot. [Emphasis Mukavy's.]
But then in the hearing on September 22, just two days after the court order, the State was still discussing the option of criminal investigations and prosecutions of voters without photo I.D.s, in order to satisfy a Republican state legislator’s concerns about the effective enforcement of the State’s photo I.D. law.
And the statements of the Director of Elections reassuring Representative Schofield that voters who vote without photo I.D. can be tracked and investigated echoed the statements made in August by Harris County Clerk Stan Stanart.
Kulhavy has more background and interpretation, but the gist of it is that the Republican leadership of Texas wants to continue hindering and harassing voters they don't approve of (i.e., might for vote for Democrats) by any and all means necessary.
Thus it is left to President Hillary Clinton and her attorney general, with some support from the Supreme Court Justice she appoints -- and that ultimately gets confirmed by a Democratic Senate in 2017 -- to restore the VRA, put Texas back into preclearance, and fix some of the other ridiculous shit that (Republican) Texas insists on mucking up.
With the above assumptions in place, there should be a flood of new federal judges who are appointed, confirmed, and put to work in short order next year, as the worst conservative nightmares about the judiciary start coming true.
(Update: Harry Enten at FiveThrtyEight reports today that even as Madam President surges ahead of The Barking Yam, her down-ballot Senate coattails are shortening, not lengthening. Much of the success of Clinton's first two years in office -- I submit all of it domestically -- rests on having a Senate that will not obstruct her every initiative.)
I'm taking all that as what is going to happen, not what could happen. Because even though I won't ever vote for her, I plan on holding to her to a higher standard of accountability than many of those who will be. You might call that unfair; I call it pragmatic.
She can come up short on fracking, the TPP, and Citizens United, but if she's not willing to straighten out Greg Abbott, Ken Paxton, et.al. with respect to voting rights, then she's going to be an even weaker and lousier president than I suspect she will be.
