Yesterday the Justice Department sued Texas over its recently enacted voting law, known as SB1. The controversial statute promotes “election security” in several different ways, all of which add up to making it harder to cast a ballot in the Lone Star State.
The bill bans 24-hour voting, outlaws curbside voting, and makes it a felony to mail out an unsolicited mail-in ballot. It also allows poll watchers to run riot in polling stations and imposes criminal penalties on anyone who “obstructs” their view. But the DOJ is suing over two different provisions which make it harder for elderly, disabled, and non-native English speaking voters to cast their ballots in alleged violation of the Civil Rights Act and the Voting Rights Act.
Prior to the enactment of SB1, those wishing to assist a voter in one of the above categories had to swear an oath to “confine my assistance to answering the voter’s questions, to stating propositions on the ballot, and to naming candidates and, if listed, their political parties; I will prepare the voter’s ballot as the voter directs.”
How LexisNexis State Net Uses Gen AI To Tame Gov’t Data
Its new features transform how you can track and analyze the more than 200,000 bills, regulations, and other measures set to be introduced this year.
The new oath contains language promising to “confine my assistance to reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot,” and acknowledging that assistance provided to someone “ineligible” to receive it may invalidate the ballot.
The DOJ argues that barring the assistant from answering questions violates Section 208 of the Voting Rights Act which states “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.”
Moreover, if the validity of the ballot is jeopardized by helping the voter, the law will likely chill access to needed aid. How good does a voter’s English have to be to render the assistance illegal? How disabled does she have to be to qualify for help?
The second contested provision involves a new requirement that mail-in ballots have the last four digits of the voter’s drivers’ license or social security number written on the envelope. Although the law allows registrars to accept ballots with other discrepancies, such as a different address or last name, they “shall” reject ballots without the “correct” number written on the envelope.
Heading To Legalweek? Come Join Above The Law!
Meet the team in NYC at our Monday night happy hour — 3/9 at 7pm. RSVP required.
This presents both a trap for the unwary — what if Meemaw forgets that she used her DL number on the application and writes her SSN on the ballot itself — and an administrative hurdle for those who have documents which don’t match the numbers in the Texas Election Administration Management database, whether because they’re too old, too new, or due to administrative error.
The DOJ argues that this violates the 1964 Civil Rights Act, which makes it illegal to “deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”
“Driver’s license numbers, election identification certificate numbers, personal identification certificate numbers, and partial social security numbers are not material to determining whether a voter meets State law qualifications to vote or to cast a mail ballot,” the government argues, demanding that the court enjoin enforcement of both provisions.
In a DOJ press release, Kristen Clarke, head of the Civil Rights Division, promised to protect access to the ballot.
“Laws that impair eligible citizens’ access to the ballot box have no place in our democracy,” she said. “Texas Senate Bill 1’s restrictions on voter assistance at the polls and on which absentee ballots cast by eligible voters can be accepted by election officials are unlawful and indefensible.”
As for Texas Governor Greg Abbott, he was in his usual pugilistic mode.
“Bring it. The Texas election integrity law is legal,” he tweeted. “It INCREASES hours to vote. It does restrict illegal mail ballot voting. Only those who qualify can vote by mail. It also makes ballot harvesting a felony. In Texas it is easier to vote but harder to cheat.”
Astute observers will note that none of that addresses the issues raised in this case. (And that adding an hour or two of voting in a county with 55,000 people doesn’t offset the end of 24-hour voting in Austin.) Nor does it mention that there were a mere handful of prosecutions for vote fraud out of millions of ballots cast, so the statute is “solving” a problem which does not exist.
Unless the problem is too many people with easy access to the ballot box — in which case, it’s working exactly as intended.
US v. Texas [Docket via Court Listener]
Elizabeth Dye lives in Baltimore where she writes about law and politics.