Flouting Federal Courts On Voter ID Isn’t Helping Texas’ Legal Defense

There is, perhaps, never a good time for local elections administrators to be undermining federal court orders, ignoring state officials and providing voters with false information about what is required to cast a ballot. But for poll workers in Texas who have been caught spreading inaccurate information about the state’s voter ID law, the timing is particularly unfortunate, given the legal scrutiny the law already is under and is continuing to the attract.

The same civil rights groups and voting advocates who have been engaged in a lengthy legal battle over the law — which has been deemed discriminatory by multiple courts — are now reporting that some county officials are failing to educate voters about the alternatives available to those without the required ID. At least one county faces a lawsuit for posting inaccurate information about the law, while the Texas secretary of state has been alerted to numerous other polling places misinforming votes.

The on-the-ground confusion comes as Texas is seeking to have the major ruling against the law — a 5th U.S Circuit Court of Appeals decision that deemed it discriminatory in its effect — overturned by the Supreme Court.

“The problems that Texas is having right now with this election is definitely going to bleed into the narrative about the voter ID case, as the Supreme Court considers it,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund (MALDEF). “It makes Texas look recalcitrant and provides more evidence for the suggestion that this law is purposely discriminatory, at least in the narrative around the case, if not in the record.”

As a technical matter, the latest issues officials have had won’t be entered into the official record of evidence in the case. But it’s likely that at least some of the justices, if not their clerks, are at least aware of the news. A district court is also reexamining whether the voter ID law was passed with an intent to discriminate against minority voters.

“What the current reality is is pretty consistent with the record that we have demonstrated over the last five years,” said Leah Aden, a senior counsel for the NAACP Legal Defense and Education Fund, which is involved in some of the litigation.

“The atmosphere as this is being appealed is important because it just reaffirms a five-year history of Texas failing to implement the law and train and educate voters, whether it’s the old law or the ameliorated law,” she said.

The voter ID law, passed in 2011, is regarded as one of the toughest in the nation. Texas was only able to implement it after the 2013 Supreme Court decision, Shelby County v. Holder, that gutted a provision of the federal Voting Rights Act requiring Texas to get federal approval for changes to its election law. Before the 2013 ruling, both the Department of Justice and a panel of federal judges blocked the law under the federal approval process, known as preclearance.

The legal court battle that ensued culminated in the full 5th Circuit, perhaps the most conservative group of judges in the country, ruling against the law in July. In the short-term, the state agreed to soften the law, so that non-photo ID holders could vote via an affidavit if they show a substitute form of identification like a utility bill or a paycheck. But the state has also petitioned the Supreme Court to reverse the ruling, in a case that, if granted, could become the next major case in voting rights litigation.

Exacerbating the legal mess are the county officials in charge of local polling places, who have, according to reports, failed to inform non-photo ID holders of the affidavit alternative, and instead acted as if the 2011 law was never softened by the courts.

According to Kristen Clarke, the president and executive director of Lawyers’ Committee for Civil Rights Under Law, the voter protection hotline her group is helping to operate has received more than 425 complaints in Texas since early voting began. A large majority of them, she said, have had to do with inaccurate information being given regarding current the status of the ID requirement. In some places, it’s been a matter of the old posters outlining the 2011 version of the law still being hung at poll sites. Elsewhere, poll workers have told voters waiting in line that they need to pull out their photo IDs to vote, making no mention of the alternative for non-ID holders.

“Their continues to be evidence that suggests that local elections officials are not posting and imparting accurate information to voters about the ID requirements,” she said.

She and other voting rights advocates who have been watching Texas said the state officials have been somewhat helpful in addressing the issues. Last week, the Texas secretary of state’s office, which oversees elections, emailed a reminder of the new voter ID protocols to all 254 counties, and continues to be in touch with local officials.

“The incidents seem to be limited, but we take every concern seriously,” said Alicia Pierce, a spokeswoman for the Texas secretary of state, told the Statesmen.

(The offices for the Texas attorney general and secretary of state did not respond to TPM’s inquiries.)

But at least one county needed the intervention of a court. MALDEF sued Bexar County, Texas, on Friday, and a state judge swiftly granted a temporary restraining order requiring that officials take down the out-dated posters at polling sites, and update the county elections website and phone lines to reflect the new system.

Even before early voting began, Texas had to be dragged back into court over concerns raised about its implementation of the alternative method. The state earned a rebuke from a federal judge for advertising the affidavit option in more restrictive language than what was originally approved of by the court.

The irony is that this sort back-and-forth is just the sort of behavior Chief Justice John Roberts declared unlikely in his majority opinion for Shelby County.

“Blatantly discriminatory evasions of federal decrees are rare,” Roberts wrote, quoting a previous decision of his that laid the groundwork for Shelby. “The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years.”