Manny Fernandez at the New York Times has this look at potential impact of the Texas voter ID law on the upcoming Texas primary - and the political parties’ differing (but none too surprising) views on the subject.
Lisa Falkenberg at the Houston Chronicle has this story of a 79-year old Houston voter who has tried, without success so far, to get a DPS issued voter ID.
The Houston Chronicle reports that State Senators Rodney Ellis, Sylvia Garcia & John Whitmire are worried about the possibility of name mismatches at the polls and think that Harris County Clerk Stan Stanert should be doing more to proactively address the issue.
Meanwhile, up I-45, Tom Benning at the Dallas Morning News reports that Dallas County Commissioner Tom Cantrell thinks the county may be doing the exact opposite of Harris County and spending too much time and money to try to contact voters with possible name mismatches.
Over at the Texas Tribune, Jim Henson and Joshua Blank have this - admittedly non-legal but nonetheless interesting - look at the subject of Hispanics and “dog whistle politics” in Texas.
And while we’re on the subject of Texas Hispanics, Charles Kuffner at Off the Kuff has this look at, and a response to, Gallup polling about the political leanings of Hispanics in Texas.
The Dallas Morning News has this piece on apparent confusion among some Dallas County elected officials about whether and where they should be filing the annual personal finance statements required of officeholders.
The Monitor in the Rio Grande Valley has this report on an ongoing election contest in a race for county commissioner that features accusations that voters were improperly registered at houses where they did not actually live.
And last but not least, Noah Horwitz wonders in an op-ed in the Daily Texan whether Texas really should be electing its judges.
At a status conference this morning in the Texas voter ID case, Judge Nelva Gonzales Ramos said that she would take under advisement a Justice Department request to move start of trial in the case to January 2015 and that she would address the request at a hearing this Friday, February 14 at 10:30 a.m.
The court also said it would take up database discovery issues at that hearing.
For now, though, Jose Garza - lawyer for the South Texas plaintiffs - said that Judge Ramos appeared inclined to keep to a September trial date.
Separately, Judge Ramos also ordered the State of Texas to respond within 10 days to DOJ’s motion to compel turnover of legislative documents and set a hearing on the motion to compel for March 5 at 9:30 a.m.
Tuesday evening, lawyers for the Justice Department asked Judge Nelva Gonzales Ramos to postpone trial in the Texas voter ID case until January 2015.
Trial in case is currently set to start September 2.
DOJ said its request was necessary because it was “becoming increasingly apparent … that the time remaining under the current schedule is insufficient to complete the complex and time-consuming fact and expert discovery necessary to compile a sufficient record to allow this Court to resolve the issues presented.”
The motion focused, in particular, on the complexity of comparing, matching, and analyzing information in various state and federal databases to determine the statistical effect of the voter ID law on different ethnic groups.
The motion told the court that while the parties had made significant progress in developing an agreed framework for that comparison, much practical work remained to be done:
After the United States receives the data from Texas, the data must be reviewed and processed into the appropriate format for each agency. For most federal agencies, the coding and data preparation involved will be a multi-week process. The federal agencies also must have adequate computational time to run the search under the identified criteria.
Distinctive features of Texas’s registration system pose further complexities that will slow the process of obtaining the underlying information. Unlike several other states that have faced challenges to similarly crafted laws, Texas’s voter registration list does not contain racial information for registered voters, not does it contain social security numbers for a large percentage of its voters. The absence of a social security number significantly complicates the database matching process. Finally, SB 14’s requirements and exemptions also implicate more federal databases than other states’ laws. When combined with the sheer size of Texas’s population, these factors also extend the time necessary for conducting the statistical analysis.
In addition to data issues, DOJ said that delays caused by discovery disputes, including disputes over legislative privilege, warranted modification of the trial schedule.
Although DOJ proposed pushing back start of trial until after the November 2014 election, it noted that its proposed modifications would build in a process for seeking preliminary injunctive relief in advance of the election - with preliminary injunction motions due by July 18 and final reply briefs by August 15. If adopted, DOJ said the process would be similar to the process in place in the North Carolina voter ID case and would fully address concerns about “having some adjudication of the legality of SB 14’s requirements made in advance of the November 2014 Federal election.”
DOJ said that if it were required to proceed to trial under the current schedule, the “United States and the public interests it seeks to vindicate in enforcing the rights guaranteed by Section 2 of the Voting Rights Act will be irreparably prejudiced,” noting that “no challenge to a photo voter identification law under Section 2 of the Voting Rights Act [ ] has proceeded directly to trial under the sort of highly compressed schedule in place in this case.”
The motion said that plaintiff groups headed by the NAACP and the Texas League of Young Voters were joining with DOJ in making requests for changes to the scheduling order, but that the Veasey plaintiffs and the Texas Association of Hispanic County Judges and County Commissioners were opposed. The State of Texas and a separate group of individual South Texas plaintiffs did not take a position.
In a filing commenting on a separate proposed discovery order, the Veasey plaintiffs said they believed the database matching process could be shortened by “running certain steps of the process concurrently with one another” and that DOJ’s proposed process could “cost as much as three months or more in the schedule.”
Judge Ramos holds a status conference Wednesday, February 12, where the request is expected to be discussed, if not necessarily ruled upon.
Lawyers for the Justice Department filed a motion with Judge Nelva Gonzales Ramos this afternoon asking her to compel the State of Texas to turnover documents in the Texas voter ID case that DOJ said the state was improperly withholding.
The filing said that the documents being withheld by the state on grounds of privilege were “necessary … to ascertain the Texas legislature’s motivation for enacting SB 14” and included “communications concerning SB 14 and prior photographic voter identification proposals amongst Lieutenant Governor David Dewhurst, Speaker Joe Straus, Senator Troy Fraser (Senate sponsor of SB 14), Representative Patricia Harless (House sponsor of SB 14), and their top aides.”
DOJ said it had been told by lawyers for Texas Attorney General Greg Abbott that the state was not willing to “conduct a search for documents unless each legislator expressly declined to assert a state legislative privilege.”
However, DOJ took issue with the state’s assertion of a broad legislative privilege, telling the court that:
Defendants’ assertion of a state legislative privilege is inappropriate because the important federal interest in prohibiting intentional discrimination in voting and the uniquely probative nature of the withheld documents must overcome a privilege claim based merely on theoretical interference in state lawmaking.
The motion said that even if the court were to find that a state legislative privilege existed under the Federal Rules of Evidence, the balancing test used by courts - including the three-judge panel in the Texas redistricting case in San Antonio - warranted turnover of the documents:
When debating SB 14, key proponents did not speak to specific provisions included in or excluded from the bill or the unusual procedures used to enact the legislation and instead limited their public testimony to coordinated talking points. The documents and ESI [electronically stored information] being sought in discovery here would allow the Court to determine the credibility of legislative sponsors who refused to respond in public to questions posed by minority legislators. When Senator Royce West, a black state senator, asked Senator Troy Fraser whether SB 14 would ‘disproportionately affect African Americans and Hispanics,’ Senator Fraser merely replied, ‘I’m not advised.’ When Representative Rafael Anchía, an Hispanic state representative, asked Representative Patricia Harless whether she was aware of any studies conducted by a state agency ‘to project the number of voters that lack the required identification and what percentage of those voters are African American or Hispanic,’ she similarly responded, ‘No. Not advised.’
There is [ ] no alternative source for evidence of the contemporaneous and candid discussions of key legislative actors and their staff … [T]he public statements of legislative sponsors reflect repetitive, almost verbatim adherence to talking points and a refusal to engage publicly with the concerns of minority legislators.
Not compelling release of the documents, DOJ said, would let the state use privilege doctrines inappropriately:
The State of Texas, and specifically the Texas Legislature, plays a central role in this litigation. As a result, [State] Defendants have named legislators and their staff as prospective witnesses. When combined with the assertion of a state legislative privilege, this creates the potential for the improper use of a privilege as both a sword and a shield.
The motion also said the state was confusing legislative privilege with legislative immunity:
The State’s position glosses over the critical distinction between legislative immunity and recognition of a state legislative privilege. Legislative immunity protects legislators against personal liability for their ‘legitimate legislative activity.’ By contrast, this is a case brought by the United States in which no personal liability is at stake, and individuals who are immune from suit may nonetheless be compelled to testify in a related case.
DOJ also challenged the state’s assertion of an attorney-client privilege:
Defendants have withheld communications between multiple offices without establishing that an attorney employed by one legislator or official maintains an attorney-client privilege with a legislator who is not his or her employer.
Defendants have also invoked the attorney-client privilege to withhold hundreds of pages of communications between individual legislators or legislative aides and attorneys for the Texas Legislative Council (TLC). Attorneys for the TLC, however, cannot maintain an attorney-client relationship with every one of the individual members of the Texas legislature. The TLC is a state legislative agency, and its statutory mandate does not authorize the provision of legal advice or the formation of an individual attorney-client relationship.
DOJ also said that a large number of the withheld documents seemed to concern policy or political advice, rather than legal advice, and thus would not be covered by the attorney-client privilege.
The Texas Association of Hispanic County Judges and County Commissioners has amended its complaint in the Texas voter ID case to add the county judge and county commissioners of Hidalgo County as additional plaintiffs.
The filing with the proposed amended complaint told Judge Nelva Gonzales Ramos that the State of Texas did not oppose the amendment.
The amended complaint does not change the legal theories being pursued.
Texas is booming, but it’s not all from people moving to the state.
The Census Bureau’s state-by-state estimates of population growth between July 2012 and July 2013 are out and show that more than half of Texas’ growth in that period came from net births over deaths.
Another 29.3% came from people moving to Texas from elsewhere in the United States (net of people leaving), and 16.6% came from international migration.
Altogether, the Census Bureau estimates that Texas gained 385,760 during the period - for a population change of 1.5%.
Although the demographic makeup of the new population been released yet, there seems little reason to think that Texas’ demographic revolution isn’t continuing apace - if not accelerating.
According to Census Bureau figures, the period between July 2012 and June 2013 saw 381,897 births to Texans and 173,852 deaths.
Given recent demographics, the deaths were almost certainly heavily Anglo and the births almost certainly majority or close to majority Hispanic:
In other words, get ready for an interesting future.
The breakouts for other states and the District of Columbia can be found here.
The parties in the Texas redistricting litigation are knee deep into discovery in preparation for trial this summer in front of the three-judge panel in San Antonio. But for those desperate for some redistricting news, despair not - the new UIL high school football & basketball alignments are out and can be found here.
And this being Texas, a take here on who won and who lost courtesy of the Austin American-Statesman.
This morning, Texas House Speaker Joe Straus released the lists of items for study by house legislative committees before the next session of the Texas Legislature.
Here’s the list of election law related items:
Elections Committee Interim Charges
1. Examine the use of Help America Vote Act funds and methods to ensure the efforts required by the Help America Vote Act continue.
2. Study the Interstate Voter Crosscheck Program. Specifically, study the results of the program used in other states, how other states use the data, and make recommendations about whether the state of Texas should establish this program.
3. Evaluate the Move Act, specifically the implementation of HB 1129 (83R), relating to a program allowing certain military voters on active duty overseas to cast a ballot electronically.
4. Examine online voter registration systems in other states. Study costs and security concerns, weigh the pros and cons of online voter registration, and make recommendations.
5. Review the study by the Secretary of State required by HB 3103 (83R) regarding moving the date of the Texas presidential primary election, and make appropriate recommendations.
6. Conduct legislative oversight and monitoring of the agencies and programs under the committee’s jurisdiction and the implementation of relevant legislation passed by the 83rd Legislature. In conducting this oversight, the committee should:
a. consider any reforms to state agencies to make them more responsive to Texas taxpayers and citizens;
b. identify issues regarding the agency or its governance that may be appropriate to investigate, improve, remedy, or eliminate;
c. determine whether an agency is operating in a transparent and efficient manner; and
d. identify opportunities to streamline programs and services while maintaining the mission of the agency and its programs.
Statewide voter registration figures are out, and, overall, voter registration in Texas remains relatively static.
According to the January figures released by the Texas Secretary of State, there were 13,543,887 registered voters in total in Texas, of whom 12,250,132 had non-suspense status (i.e., were not subject to potentially having their registration cancelled for various reasons).
Those figures represent at best modest net growth over the past year.
In fact, while in the period between January 2013 and January 2014, the total number of registered voters grew by 367,499, the total of non-suspense voters actually fell by 545.
The state’s voter registration stats look a tad healthier taking a slightly longer view.
The most recent figures mean that total voter rolls grew by 605,118 people and the non-suspense voters by 959,346 during the four-year period between 2010 and 2014:
However, even that’s not quite as impressive as it looks - since, after all, in the just two-year period between 2010 and 2012 the number of eligible voters in Texas increased by an estimated 607,646.
Although more recent estimates of the number of eligible voters aren’t yet available, Texas, in short, seems at best to be keeping up with its rapid growth but necessarily gaining ground on what in recent years have been increasingly lagging registration rates.
County by county voter registration statistics for January 2014 can be found here.
A proposal to fix the Voting Rights Act may have been introduced in Congress, but the Dallas Morning News reports that Senator John Cornyn has already let people know that he’s having none of it because “it discriminates against Texas.”
Cornyn’s reaction prompted MSNBC commentator Melissa Harris- Perry to send Cornyn an open letter in rebuttal telling him the new coverage formula is “really not about discriminating against Texas. It is about Texas’ history of discriminating against its own voters.”
Meanwhile, the Dallas Morning News editorial board called the proposed updates “a much needed fix.
The Waco Herald-Tribune editorial board agreed, saying that VRA amendments were worthy of support and that “if that puts Texas back on the short list of states needing federal pre-clearance— well, blame our state leaders and the way they bungled what should have been far better laws in terms of voter photo ID and redistricting.”
The San Antonio Express-News editorial board also agreed, writing that Texas was a “poster boy” for why the act was still needed.
However, Attorney General Eric Holder - while liking the bill overall - told MSNBC’s Ari Melber that proposed fixes to the Voting Rights Act should go further and allow voter ID violations found by the Justice Department (and not just by a court) to count toward the new section 4 trigger.
And last but not least, turning more locally, Katherine Haenschen at Burnt Orange Report has a great look at how Austin’s new single-member districts might play out in this year’s elections.
After a handful of changes to the schedule in the Texas redistricting case, here’s what the combined schedule in the Texas redistricting and voter ID cases now looks like (new dates indicated by *):
*February 28 - Deadline for plaintiffs in the redistricting case to designate testifying experts.
*March 14 - Deadline for the State of Texas to designate testifying experts in the redistricting case.
March 3 - Deadline in the redistricting case to join additional parties or to amend and/or supplement pleadings.
*April 23 - Deadline in the redistricting case for dispositive motions.
May 2 - Deadline for fact discovery in the voter ID case.
May 9 - Deadline in the voter ID case for designation of experts and furnishing of reports.
*May 30 - Deadline in the redistricting case to complete supplementation of discovery on the 2011 plans and to complete discovery on the 2013 plans.
*June 9 - Deadline in the redistricting case for bench briefs on section 3 relief.
June 6 - Deadline in the voter ID case for designation of rebuttal experts and furnishing of reports.
*June 18 - Deadline in the redistricting case for response briefs on section 3 relief.
*July 1 - Deadline in the redistricting case for reply briefs on section 3 relief.
July 2 at 8:30 a.m. - Pretrial conference in the redistricting case.
July 14 at 8:30 a.m. - Start of trial in the redistricting case.
July 15 - Deadline for expert discovery in the voter ID case.
July 22 - Deadline in the voter ID case for dispositive motions.
August 4 - Deadline in the voter ID case for replies to dispositive motions.
August 21 at 9:00 a.m. - Final pre-trial conference in the voter ID case.
September 2 - Start of trial in the voter ID case.
October 20-31 - Early voting for the 2014 general election.
November 4 - 2014 general election.
The parties in the Texas redistricting case asked the three-judge panel in the case today to modify several of the scheduling deadlines in the case.
The parties’ motion said that request was being made to allow experts for the Travis County plaintiffs new American Community Survey citizenship data that would not be available through the Texas Legislative Council’s redistricting software until mid-February.
As a result, several other dates would need to shift by a week or two or in a few instances slightly more. These include:
The deadline for designating testifying experts and providing expert reports (currently February 7, now proposed to be February 28),
The deadline for dispositive motions (currently April 2, now proposed to be April 23),
The discovery cutoff (currently May 14, now proposed to be May 30), and
The deadline for bench briefs on section 3 issues (currently June 2, now proposed to be June 9).
The motion does not affect the start of trial in the case, which remains set for July 14.
The motion was made jointly by all of the parties in the case and is not opposed.
The court has entered an order adopting the revised schedule.
This morning, Congressman Jim Sensenbrenner (R-WI), Senator Patrick Leahy (D-VT), and Congressman John Conyers (D-MI) introduced proposed amendments to the Voting Rights Act that would rework the section 5 coverage formula invalidated by the Supreme Court in Shelby Co. v. Holder.
The text of the bill - styled the Voting Rights Amendment Act of 2014 - can be found here.
Under the proposed amendments, states and local entities would be required to submit voting changes for preclearance before putting them into effect if they met the conditions of two new statutory triggers.
For states, preclearance coverage would be triggered “if 5 or more voting rights violations occurred in the State during the previous 15 calendar years, at least one of which was committed by the State itself (as opposed to a political subdivision within the State).”
Currently, four states - Texas, Georgia, Louisiana, and Mississippi - would be covered under the new formula.
Political subdivisions, likewise, could be covered if they had at least 3 voting rights violations during the past 15 years or, alternatively, had at least one voting rights violations and “persistent, extremely low minority turnout during the previous 15 calendar years.”
Voting rights violations triggering coverage would include both constitutional violations and violations of section 2 and section 5 of the Voting Rights Act. Denials of preclearance by Justice Department also would count as triggering violations. However, in a concession to congressional Republicans, rulings and adverse DOJ determinations about voter identification laws would not be included in the count (though court rulings would).
To trigger coverage for low voter turnout, two requirements would need to be met.
First, the minority turnout in a subdivision in presidential elections during the past 15 years would have to be below the turnout of the minority and non-minority populations in the state and the nation as a whole and also below that of the non-minority population of the subdivision itself.
In addition, before coverage would be triggered, the average minority turnout in the subdivision during the 15 year review period would have to be “more than 10 percentage points below the average nonminority turnout rate for the entire Nation.”
Once coverage is triggered, a state or subdivision would remain covered until 10 years after the most recent voting rights violation.
Under the proposal, section 3 of the Voting Rights Act also would be strengthened by allowing “bail in” to preclearance coverage for violations involving either discriminatory intent or effect - instead of just intentionally discriminatory acts under current law.
Ari Berman at The Nation has more on the proposal here.
Wasting no time, the State of Texas has filed its appeal of yesterday’s decision by the three-judge panel in the Texas redistricting case to award attorneys fees and costs to plaintiff groups headed by State Sen. Wendy Davis and LULAC in connection with disputes over the 2011 senate map.
The state’s notice of appeal can be found here.