TEXAS REDISTRICTING & ELECTION LAW

Updates about ongoing redistricting litigation in the Lone Star State and coverage of election law more generally. This website's goal is to try to make sure the redistricting process and litigation over voting law is as transparent and accessible as possible to the public. Hopefully, it will be of some use to a broad range of interested parties, both lawyers and non-lawyers. Have questions, comments, suggestions, additional content, or a redistricting joke (or two)? Feel free to contact me: Michael Li, michael.li@mlilaw.com, 202.681.0641.
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The Justice Department filed a brief this morning in the Texas voter ID case responding to arguments by Texas Attorney General Greg Abbott that he is entitled to obtain document discovery from members of Congress related to the state’s voter ID law and potential voter fraud.

The state’s filing on Monday asked Judge Nelva Gonzales Ramos to compel DOJ to produce documents from 18 current and former members of the Texas Democratic congressional delegation as well as Senate Majority Leader Harry Reid, House Minority Leader Nancy Pelosi, Senator Bob Casey of Pennsylvania, and Senator Kay Hagan of North Carolina.

In its reply, DOJ told the court that Abbott’s request was based “on the premise that there is some form of symmetry between the members of the Texas Legislature who devised, debated, and enacted SB 14 and Members of Congress.”

DOJ explained:

The legislators whose documents the United States seeks actively and directly participated in adopting SB 14 or considering predecessor photographic voter identification bills. Plumbing the motivations of these Texas legislators goes to the very heart of this litigation. By contrast, the Members of Congress had no role in Texas’s adoption of that state legislation, and were, at most, interested bystanders to SB 14 as the legislative process unfolded in Austin … Information obtained from the targeted Members of Congress would shed no light on whether Texas enacted its voter identification law, either in whole or in part, with a discriminatory purpose.

In fact, DOJ noted that “other than Representative Veasey, who served in the 82nd Session of the Texas Legislature and who as a plaintiff in this case is obviously subject to discovery, no party has listed a Member of Congress as a witness with regard to the potential results of the legislation.”

DOJ also told the court that the state’s request was defective because the members of Congress (other than Congressman Veasey) were not parties to the case and that DOJ did not have custody, possession, or control of the documents within the meaning of the federal discovery rules.

Peggy Fikac at the San Antonio Express-News reports on how voter ID played out in the recent Texas primary - and why the biggest test is still ahead.

Christopher Hooks at the Texas Observer writes about what he calls “Texas’ Undemocratic Party Primary System.”

Jacob Fischler at The Monitor reports on allegations of possible voting machine tampering in Hidalgo County and on a judge’s decision to impound the machines pending an investigation.

And speaking of Hidalgo County, Dan Solomon at Texas Monthly writes about two humorous but less covered stories to emerge from the primary - one involving ballot font and one an adult daycare dance. 

And last but not least Lex Politico reports that oral argument at the Fifth Circuit has been set for April 28 in an appeal by four Catholic groups who are challenging provisions of the Texas Election Code that require general purpose PACs to wait 60 days after they are formed before making any contributions or expenditures in excess of $500.

In a filing late last week, the State of Texas designated Rice University professor John Alford as its redistricting expert for the trial scheduled to start July 14.

Alford also served as the state’s expert in earlier trials on the 2011 maps in San Antonio and Washington. His testimony, however, was not without some level of controversy when it was used to support the D.C. panel’s majority ruling that CD-25 was an ability-to-elect district and also findings that the Texas Legislature’s reconfiguration of CD-23 resulted in retrogression:

The Justice Department and African-American and Hispanic plaintiffs filed their expert designations on March 1.

In a response filed today in the Texas voter ID case, the State of Texas told Judge Nelva Gonzales Ramos that it was entitled to review Justice Department “files relating to voter fraud investigations” as well as documents maintained by 22 current and former members of Congress who have opposed voter ID laws.

The filing today responded to a motion for protective order filed by DOJ, which argued that the scope of the documents being sought by the state was too broad.

In its response, the state said that it had narrowed its request to try to address DOJ’s concerns, but that the state defendants could not “yield more ground without losing access to evidence that may prove critical to their case.”

The filing told Judge Ramos:

DOJ cannot allege in its complaint that voter fraud is a Texas-sized myth, and then conceal from the Court and counsel all reports and investigations in its custody. That is especially so when those reports were created by federal entities whose very purpose is investigate voter fraud in Texas and throughout the United States.

The state also told that court that - while the state no longer was seeking discovery from every member of Congress - it was nonetheless entitled to discovery from the state’s Democratic congressional delegation, explaining:

Every single member of the Texas Democratic Congressional delegation has joined the debate over SB 14, denouncing the law as racist and ineffective, and urging their constituents to do the same. In their speeches, they claim to possess studies criticizing SB 14; they claim to have discussed its allegedly onerous requirements with injured constituents; and they claim special knowledge about the complete and total absence of voter fraud in their own districts. This is all highly relevant and discoverable information. And there is likely more: Having opposed SB 14 so prominently, these members of Congress certainly possess at least some dissenting material from constituents who claim to have witnessed voter fraud or who harbor concerns for ballot integrity. This Court should not allow the Texas Congressional delegation to stir the pot in their districts, and then present to this Court only that favorable evidence which floated to the top.

In addition, to current and former members of the Texas Democratic congressional delegation,** the state told the court that it was entitled to discovery from Senate Majority Leader Harry Reid, House Minority Leader Nancy Pelosi, as well as Senator Bob Casey of Pennsylvania and Senator Kay Hagan of North Carolina who “both opposed voter ID laws in their respective states.”

The court has not yet set a hearing on DOJ’s motion for protective order. However, the next scheduled status conference in the case takes place March 26.

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** The current and former Texas members of Congress from whom the state is discovery are:

Al Green (CD-9)
Ruben Hinojosa (CD-15)
Silvestre Reyes (CD-16)
Beto O’Rourke (CD-16)
Chet Edwards (CD-17)
Sheila Jackson Lee (CD-18)
Charlie Gonzalez (CD-20)
Joaquin Castro (CD-20)
Nick Lampson (CD-22)
Ciro Rodriguez (CD-23)
Pete Gallego (CD-23)
Lloyd Doggett (CD-25 and CD-35)
Solomon Ortiz (CD-27)
Henry Cuellar (CD-28)
Gene Green (CD-29)
Eddie Bernice Johnson (CD-30)
Marc Veasey (CD-33)
Filemon Vela (CD-34)

Today brought several new discovery-related filings in the Texas voter ID case.

1. A supplemental brief by the Justice Department responding to Texas Attorney General Greg Abbott’s argument that the records of Texas legislators need to be subpoenaed individually from each legislator rather than sought through a Rule 30 request for production of documents served on the state defendants. In the brief, DOJ said subpoenas were not necessary because the documents were in the possession, custody, or control of the state.

2. A response by the Veasey and LULAC plaintiffs providing background on how “the types of documents at issue now, such as legislative e-mails, were critical to a three-judge court’s findings that Texas’s 2011 redistricting maps - enacted by the same legislature that enacted SB 14 - were enacted with a discriminatory purpose and would have retrogressive effects on minority voting rights.” The response also argued that the approaches to privilege issues taken by courts in the Texas redistricting cases could “provide useful templates for how this Court can proceed with respect to those issues.”

3. A joint motion by all of the voter ID plaintiffs to modify the fact discovery cutoff and the deadlines for exchange of expert reports.  Fact discovery currently is set to close on May 2, with plaintiffs’ expert reports due a week later. The motion would extend both the discovery cutoff and the deadline for the first expert reports to June 27. Under the proposed modification, the state then would have until July 18 to provide its expert reports and the plaintiffs until July 28 to provide reply expert reports. The modification would not affect the September 2 start of trial.

The motion said the modification was needed “to ensure that the federal agencies [ ] have sufficient time to conduct comparisons of state and federal databases and for parties’ experts to analyze those comparisons,” noting that the “comparison results provided to all parties will consist of billions of records.” The motion also said the extension of time was needed because of disputes over legislative and attorney-client privilege.

The plaintiffs said in the motion that they had been unable to reach an agreement with Texas Attorney General Greg Abbott on the modifications.

 

It’s axiomatic that turnout in the Texas primary is low - for both Democrats and Republicans.

But exactly how low is highlighted by a look back at the heyday of the Texas Democratic Party.

In 1926, for example, 821,234 Texans voted in the Democratic primary -  at a time when the state had just barely over 5.4 million residents.

Contrast that to the 546,523 Texans who voted in the 2014 Democratic primary in a state that now is home to over 26 million people and more than 13.6 million registered voters.

Now, there are plenty of reasons why turnout would have been higher in 1926. And, of course, the chief of these is that Texas back then was functionally a one-party state in which everything of consequence got decided in the Democratic primary. If you wanted your vote to count, you needed to vote in the Democratic primary.

But still it is striking by just how much primary turnout - for both Democrats and Republicans - has lagged the state’s remarkable nine-decade population boom.

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Indeed, for all the talk of Texas being a “red state,” recent Republican primary turnout has been no better in aggregate numbers than Democratic turnout in the 1940s and 50s (and lower as a percentage of the population).

And in only 8 out of 27 Republican primaries since 1962 - the year Texas Republicans began having regular primaries - has the turnout exceeded turnout in the 1926 Democratic primary.

In short, while many races today - as in 1926 - get decided for all intents and purposes in party primaries, it truly has become the narrowest of political elites who are doing the deciding.

The State of Alabama began issuing free voter IDs this week to voters lacking one of the acceptable types of ID for voting under the state’s new voter ID law.

While the Alabama law has not been without controversy, news coverage about its implementation only serves to highlight and re-emphasize exactly how much more restrictive the Texas voter ID law is by comparison.

  • In Texas, student IDs are not acceptable forms of ID for voting. In Alabama, an ID from any public or private college or university in the state can be used.

  • In Texas, government employer IDs, other than military IDs, cannot be used for voting. In Alabama, any federal, state, county, or city employee ID is acceptable.

  • In Texas, only Texas drivers’ licenses and identification cards can be used. In Alabama, any ID issued by a state can be used.

  • In Texas, to obtain a ‘free’ voter ID, a voter must use a birth certificate or other narrowly proscribed official documentation to get a voter ID. In Alabama, voters may use private employer IDs, high school IDs, and nursing home IDs to obtain a voter ID - and, if they don’t have any of those, they can use any non-photo documentation with the voter’s name and date of birth, including Medicare and Medicaid statements and official school transcripts.

  • In Texas. election identification certificates are available only from select Department of Public Safety offices - and those notably aren’t available in every county. In Alabama, a voter ID can be obtained in each county at registrars’ offices.

Sometimes a picture really does count for a thousand words. And if there were any question that Texas has a long-term civic engagement crisis, this one chart should put those doubts to rest:

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To be sure, voter registration efforts aren’t done for 2014 - and it remains to be seen what the most hotly contested top-of-the-ticket races in a couple of decades will do for turnout this fall.

But three clear troubling Texas trends are apparent:

  • A growing voter registration gap
  • Low turnout in the general election
  • Low participation rates in both the Democratic and Republican primaries - even though those contests are highly dispositive in November in a substantial number of races

In short, much to be unhappy about.

After a hearing, Judge Nelva Gonzales Ramos took under advisement on requests by the Justice Department and African-American and Hispanic plaintiffs (here and here) to compel the State of Texas to turnover documents evidencing legislators’ conversations about the state’s 2011 voter ID law.

The state is withholding the documents on grounds of both legislative and attorney-client privilege.

The court also set the next status conference in the case for Monday, March 24 at 8:30 a.m. in Corpus Christi.

The case is currently set for trial in September 2014.

New county-by-county voter registration statistics released by the Texas Secretary of State show that the total number of voters in Texas grew by a  54,437 since the first of the year - an increase of 0.42%.

 Of that net increase, the 15 large Texas counties accounted for 41,720 (or 72.6%) of the growth:

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Altogether 201 counties saw some increase in the their voter rolls between January and March 2014, while 45 saw a decrease and 8 stayed exactly the same.

In total, Texas had 13,601,324 registered voters as of March 1, 2014, of whom 1,812,204 were reported as being on their county’s suspense list and subject to being purged if they do not vote in upcoming elections.

The Texas Legislative Council has released updated citizen voting age population (CVAP) data for Texas’ current legislative and congressional plans based on the Census Bureau’s 2008-2012 American Community Survey as well as updated district-level estimates of Spanish surnamed voter registration (SSVR).

Here are the new reports:

Plan C235 CVAP 

Plan C235 SSVR

Plan H358 CVAP

Plan H358 SSVR

Plan S172 CVAP

Plan S172 SSVR

When I wrote yesterday, I predicted that primary turnout this year for both Democrats and Republicans would likely exceed - albeit modestly - 2010 turnout. 

That turned out not to be the case, with turnout falling for both parties - for Democrats to just short of a multi-decade low.

Overall, just barely over 4% of voters cast a ballot in the Democratic primary and 9.8% in the Republican primary.

Even a large diverse county like Dallas only saw Democratic turnout of 5.79% and Republican turnout of 7.40%.

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In some counties, turnout was even more anemic, with just 53,736 voters in Harris County (2.7%) casting a ballot in this year’s Democratic primary - contrasted with turnout of 5.38% in 2010 and 12.64% in 2012.

In short, all the more reason why this Texas primary serves as a poor “test” of the state’s voter ID law - especially compared to general election turnout.

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A number of news outlets have described the 2014 Texas primary as the first big test for the state’s voter ID law - and that’s true, to an extent.

But it’s important to understand the limitations and caveats of the “test.”

For starters, although voter turnout almost certainly will exceed the 8.55% of the state’s registered voters who turned out in November 2013 to vote on constitutional amendments, it is not clear that turnout will much exceed - if at all - the combined 16.6% of voters who voted in the 2010 Democratic and Republican primaries.

That’s a far cry from the 38% of voters who voted in the 2010 general election (when Texas had the lowest voter turnout in the country) and even further from the 58.6% of voters who cast a ballot in the last presidential election.

In other words, while the primary may be a stress test, over relying on it is a bit like using how a well a city does with a quarter inch of ice to predict how the city would do with a major snowstorm. Disaster with a quarter inch of ice - or in a low turnout primary - would be bad sign indeed, but the opposite can’t be said to be necessarily true.

Moreover, although some partisans likely will trumpet any higher turnout rates as a sign of how the law is, or isn’t, impacting voters, there are several good reasons for thinking that the primary isn’t especially predictive.

For one thing, primary voters tend to be the most regular of voters and the most involved in politics and, thus, the most likely to know about the law and its requirements. In Texas, they also skew older and more affluent - and evidence suggests that a poorer voters and a growing number of younger voters are the ones especially unlikely to have IDs. Primary voters, in other words, are different in any number of ways from the November electorate and potentially even more different from the great mass of Texas voters (62%) who didn’t vote in 2010 but who might in November 2014. 

But another consideration is perhaps the most important: party primaries in Texas are run by the parties themselves.

While Republican partisans often talk about voter fraud, they tend not to imagine that such fraud is occurring in their own (heavily Anglo) ranks. Instead, when voter fraud gets discussed it usually is in the context of African-Americans and Hispanics (and especially “illegal aliens” ) trying to steal elections for Democrats in the general.  

Likewise, partisan Democrats of the sort who tend to serve as election judges are probably the least likely to believe that there is large scale voter fraud going on - and the most likely to be see voter ID laws in terms of “Republican voter suppression.”

In short, pressures to apply the law in a hyperagressive manner that one could easily imagine in a hotly contested general election - with pollwatching groups out in abundance - are unlikely to be present in the primary.

One final caveat, to the extent the primary has predictive value, the most meaningful stat won’t so much be turnout but the number of provisional ballots cast. Higher turnout, but a higher number of provisionals because of ID problems, would be a canary in the mine worth noting.

So far, there are a few antedotal stories of problems (see below) but the full numbers once they become available in the coming weeks will the key statistic to watch.

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ADDENDUM:

And also this today: State Representative Garnett Coleman (D-Houston) says that Harris County poll workers were incorrectly instructed that people whose address in the voter rolls did not match their ID (including Coleman) needed to sign an affidavit before voting.

In-person early voting for the 2014 Texas primary ended Friday.

So, what do the trends show so far?

In short, for all the high profile races this year & the tens of millions of dollars being spent, it looks to be another year of anemic turnout for both Democrats and Republicans - at least if trends in the state’s 15 largest counties are any indication.

Of the 8,684,585 registered voters in the largest 15 counties, just over 6.80% of them had voted as of Friday in either the Democratic or Republican primaries. 

Harris County - the state’s biggest county by far with 2,006,270 registered voters - saw just 105,508 voters through Friday - though that was still enough to rank it as the top GOP county.

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It does get perhaps just a bit more interesting, however, with a slightly longer view.

Although Democratic turnout was lower than Republican turnout as a rule in the 15 big counties, a number of counties, including Dallas and Tarrant, show a noticeable upward trend line when the last three mid-term cycles are considered.

And on the Republican side, although primary turnout was higher in some counties, the trend line in even more counties was flat or even downward - perhaps surprising given the large number of sharply contested statewide Republican primaries this year.

Of course, a full analysis will have to await data from all of the state’s counties after Tuesday.

But regardless, things are a long way from the primaries of old for Democrats. And Republicans - for all their general election success - look likely to continue to be mired in a decades long trend of low primary turnout.

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Friday was the deadline for plaintiffs in the Texas redistricting case to designate testifying expert witnesses.  With that bit of fanfare, here’s the list:

DOJ:  Dr. Theodore Arrington, University of North Carolina at Charlotte.

Mexican-American Legislative Caucus: Dr. Robert Brischetto, James Harrington, and George Korbel.

NAACP/African-American members of Congress: Dr. Richard Murray, University of Houston, and Anthony Fairfax.

Perez plaintiffs: George Korbel.

Quesada plaintiffs: Dr. Allan Lichtman, American University.

Texas Democratic Party: Dr. Michael McDonald, George Mason University.

Texas Latino Redistricting Task Force: Dr. Henry Flores, St. Mary’s University, and Dr. Richard Engstrom, Duke University.

Travis County plaintiffs: Dr. Stephen Ansolabehere, Harvard University.

The State of Texas has until March 14 to designate its testifying expert witnesses.