The Obama appointee presiding over the Texas voter photo ID lawsuit ordered the State to toss some of its voter education materials because federal lawyers did not like the exact language in printed. Although lawyers for the State gave the DOJ and liberal voting rights groups a copy of the proposed language on August 11, they waited until less than 60 days before the November election to complain. This was after financial and other resources had been expended by the State.
The DOJ filed a motion with the Court claiming that the voting information language used requires a voter to have a “metaphysical impossibility” to obtaining an ID before the voter can cast a regular ballot. The State argued that “this argument ignores the actual language in the State’s guidance.”
The issue involves easing voter ID requirements to allow voters to vote when they complete what is called a “Reasonable Impediment Declaration.” If the voter has a reasonable impediment or difficulty to obtaining an acceptable form of photo ID, the voter may show a supporting form of ID and execute the Declaration.
Judge Nelva Gonzalez Ramos in Corpus Christi, Texas, issued an interim Remedial Order on August 10 mandating that “Voters who appear on the official list of registered voters and present a valid voter registration certificate, a certified birth certificate, a current utility bill, a bank statement, a government check, a paycheck, or any other government document that displays the voter’s name and address and complete and sign a reasonable impediment declaration shall be permitted to vote using a regular ballot.”
The interim Order was intended to provide a temporary solution for State officials as it relates to the specified forms of ID allowed for voting.
In addition to spending at least $2.5 million for informing voters of changes, the Court ordered that the State:
shall continue to educate voters in subsequent elections concerning both voter identification requirements and the opportunity for voters who do not possess SB 14 ID and cannot reasonably obtain it to cast a regular ballot.
The declaration form includes a provision that states “By signing this declaration, I swear or affirm under penalty of perjury that I am the same individual who personally appeared at the polling place, that I am casting a ballot while voting in-person, and I face a reasonable impediment or difficulty that prevents me from getting an acceptable form of photo identification.”
The form lists reasons for the “reasonable impediment or difficulty” including: lack of transportation; disability or illness; lack of birth certificate or other documents needed to obtain acceptable photo ID; work schedule; family responsibilities; lost or stolen photo ID; and photo ID applied for but not received, and, there is a blank space to fill in another reason. The form includes, in bold letters, the statement that “The reasonableness of your impediment or difficulty cannot be questioned.”
In a motion filed by the United States styled “United States Motion to Enforce Interim Remedial Order,” the federal government complained that the State was “developing printed materials and mass media advertising that improperly narrow the Remedial Order.” They urged that “Voters are receiving inaccurate or misleading information that suggests they will not be able to cast ballots that count in November.”
The United States urged that the State’s materials do not comply with the Court’s interim order because “Rather than educating voters and poll officials about opportunities to cast a regular ballot for those who ‘do not possess SB 14 ID and cannot reasonably obtain it,’ the State has recast that language to limit the opportunity to cast a regular ballot solely to those voters who present SB 14 ID or who ‘have not obtained’ and ‘cannot obtain’ SB 14 ID. The federal government argued that this standard was incorrect and “far harsher” than the “Court-ordered standard.” The State argued that “the changes proposed by the Private Plaintiffs incorporated the very language they now complain about.”
“That the wording of the guidance differs slightly from the exact language in some parts of the Court’s order does not mean that the State Defendants are failing to comply with the order. Nothing in the motion to enforce demonstrates otherwise. The United States and Private Plaintiffs contend that using ‘unable to obtain’ or ‘cannot obtain’ restricts the class of individuals who can utilize the Reasonable Impediment Declaration. But they only reach this conclusion by taking the most unnatural reading of the State’s guidance, and by reading the phrases ‘cannot obtain’ or ‘unable to obtain’ in a vacuum,” the State wrote in their response to the motion filed by the federal government.
“There is nothing substantively different between the language the State Defendants have used in the guidance and that which the United States now proposes,” and the State set out Texas’ and the United States’ language:
- State Defendants’ Language: If a voter cannot obtain an acceptable form of photo ID, and the voter has a reasonable impediment or difficulty to obtaining such ID, the voter may still cast a regular ballot by presenting a supporting form of ID and executing a Reasonable Impediment Declaration.
- United States’ Proposed Language: If a voter does not possess and cannot reasonably obtain an acceptable form of photo ID, and the voter has a reasonable impediment or difficulty to obtaining such ID, the voter may still cast a regular ballot by presenting a supporting form of ID and executing a Reasonable Impediment Declaration.
The State also objected to the suggestion that any information given to voters and election officials must contain a reference to “do not possess.” They argued, “At no time has the Court or any of the parties intended the Reasonable Impediment Declaration to be a convenience document, and the State Defendants have refrained from using language to suggest that is true in any of its voter education materials.” “Individuals who have an acceptable form of ID but left it at home—or who choose not to show it, even if they have one—are not the intended beneficiaries of the Court’s order,” the State urged.
The plaintiff groups also filed a motion complaining that some officials in Texas were making statements to the media that those who signed a declaration swearing that they were not able to obtain required ID could be criminal investigated, or prosecuted, for making false statements.
The Obama appointee ordered the State to change the language in press releases and re-release them, and edit poll posters and all websites that detail voting rights and procedures. The State must submit proposed materials to the plaintiffs for their review and approval, including scripts and documents and advertisements that have not been published.
Judge Ramos did not grant the federal government all they had requested and did not rule on a request filed by the private plaintiffs in the case. These plaintiffs include the: Texas League of Young Voters Education Fund, Texas Association of Hispanic County Judges and County Commissioners, Texas State Conference of NAACP, Mexican American Legislative Caucus of the Texas House of Representatives, and others.
Texas Attorney General spokesman Marc Rylander released a statement saying, “We are pleased that the Court denied the private plaintiffs’ motion to change the reasonable impediment affidavit. And we appreciate that the Court did not order a change to the full, existing language the State had already used in the vast majority of communications, which gave voters a correct impression of the reasonable impediment affidavit. Our office still maintains the common-sense measures in Texas voter ID law are valid and will be filing a petition this week for the U.S. Supreme Court to review the case.”
As reported by Breitbart Texas in October 2014, Judge Ramos held that the Texas voter photo ID law, SB 14, violated the Voting Rights Act of 1965 because it had an impermissible discriminatory effect, including deliberate discrimination against blacks and Hispanics, violated the Equal Protection Clause, and unconstitutionally offended voting rights guaranteed under the Fifteenth Amendment. It was also ruled an unconstitutional poll tax prohibited by the Twenty-Fourth Amendment because the law provided for a fee for issuing copies of birth certificates or other information needed for a voter ID. SB 14 was signed into law in 2011 by then-Governor Rick Perry.
In July, the U.S. Court of Appeals for the Fifth Circuit found that Texas’ voter photo ID law had a discriminatory effect under the Voting Rights Act, but reversed the district court’s finding of discriminatory purpose, as reported by Breitbart Texas. The 9-6 ruling also found that it did not constitute a poll tax but ruled that the lower court must put an “interim remedy” in place to mitigate the “discriminatory effects.” The Fifth Circuit also warned that the district judge should “ensure that any remedy acted ameliorates SB 14’s discriminatory effect, while respecting the Legislature’s stated objective to safeguard the integrity of elections by requiring more secure forms of voter identification.” The appellate court also remanded the case to the district court to later determine if the voter ID provisions were written to be intentionally discriminatory.
As reported by Breitbart News, the dissent to the opinion were scathing. Judge Edith Jones, a Reagan nominated judge wrote a dissent which was joined by four judges. She wrote, “Requiring a voter to verify her identity with a photo ID at the polling place is a reasonable requirement widely supported by Texans of all races and members of the public belonging to both political parties.”
Breitbart News Senior Legal Editor Ken Klukowski wrote that “These five judges found particular fault with the court majority’s remanding the case back to district court to explore whether Texas lawmakers intended to discriminate on the basis of race.” He noted the part of Judge Jones’ dissent where she charged, “By keeping this latter claim alive, the majority flans the flames of perniciously irresponsible racial name-calling.” She said that the Fifth Circuit’s “judge-made ‘solutions’” “will backfire.” The public will “question judges’ impartiality,” and “[l]awmakers at every level will be forced to be race-conscious, not race-neutral, in protecting the sanctity of the ballot and the integrity of the political process.” Jones added that “these unauthorized and extra-legislative transfers of power to the judiciary disable the working of the democratic process, which for all its imperfections, best represents ‘we the people.’”
Texas Attorney General Ken Paxton responded shortly after the Fifth Circuit’s ruling saying “It is imperative that the State government safeguards our elections and ensures the integrity of our democratic process. Preventing voter fraud is essential to accurately reflecting the will of Texas voters during elections, and it is unfortunate that this common-sense law, providing protections against fraud, was not upheld in its entirety.”
Acceptable forms of identification allowed for voting include: a Texas driver’s license, concealed handgun (license to carry) license, U.S. passport, a U.S. military ID with photo, U.S. Citizenship Certificate or Certificate of Naturalization with photo, or a personal ID card issued by the Texas Department of Public Safety (DPS), or an election ID certificate.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.
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