Texas Senate District 11

Clarifying TX Voter ID Ruling, Part 2: Sue Evenwel, SREC SD1


More discussion about the TX Voter ID ruling and our November election. Thank you for taking the time to go through this and work so hard to clarify it for all Texans Sue!

“August 12, 2016

Dear friends and colleagues, Part 2

Who would have guessed that my email to clarify some misinformation over the Texas photo ID requirements for the November election, would take on a ‘life of its own’?  However, the debate over the ‘Reasonable Impediment Declaration’ has engaged so many people and brought greater understanding.  That is good for everyone.

My letter to you the other day did not go far enough to explain what happens with a voter who has no photo ID to present at the polling place.  I appreciate Eric’s summary of the “Reasonable Impediment Declaration”, but I feel the gravity of this procedure is being overlooked, it is not a simple waiver.  This is critical to understand and I am going to expand that.

Additionally, the provisional ballot process is still in place for November.  Some Facebook/Email comments have implied that this procedure will no longer be used.  That is not correct.  The provisional ballot process is for the voter who cannot present their photo ID at the polling place, but can bring it to the voter registrar within 6 days.  That voter can vote a provisional ballot, and it will be kept sealed, not counted, until a valid photo ID is produced to prove who they claim to be.  The the Late Ballot Board will process the ballot.  So if you left your driver’s license at home, you can still vote a provisional ballot, and show your ID to the registrar later.  Here is a link on the S.O.S. site for clarification.  VoteTexas.gov (http://www.votetexas.gov/faq/?wpmp_switcher=mobile).

The new procedure which has everyone concerned deals with the ‘Reasonable Impediment Declaration”.  This is not just a simple wavier that allows anyone with a utility bill to vote. The court-ordered impediment affidavit is a very serious document, and carries severe penalties.  It is not something to be taken lightly, or that gives a ‘pass’ to someone who cannot present a photo ID.  It will be used to let someone cast a regular ballot if (AND ONLY IF) there is an impediment to the voter getting a photo ID.  There is no reason to offer this type of voter a provisional ballot because he must declare that he doesn’t have a valid photo ID to present within the required 6 days.

With the impediment affidavit, you prove your identity by swearing under penalty of perjury (that’s a felony conviction and time in jail) that you don’t have a photo ID AND can’t reasonably obtain one.  There’s nothing left to prove.  So, if you lost your driver’s license, you bring a secondary form of ID, sign the affidavit under penalty of perjury saying you have no way of getting another driver’s license, or any other of the 6 photo ID options, and cast a regular ballot. Obviously that voter got a ride to the poll.

 The big question is, what happens if someone lies on the affidavit and casts a ballot, when they aren’t who they say they are.  That’s the concern voter ID is meant to fix. The interim Texas impediment affidavit says it can be rejected if there is conclusive evidence the person isn’t who they say they are.  So you can stop the process before the ballot is cast with conclusive evidence on identity. What about after the fact?  In theory, there could be three ways to cope with the ballot cast through a lie, and Texas law already has two of them:

  1. Strike the ballot.
  2. Throw them in jail.
  3. Contest the election.

Election Law junkies….I am going to give you all the links so you can look these up for yourself. LOL

On #1, Texas has no procedure I know of to challenge an individual, regular ballot after it is cast.  The Legislature could create one.  The North Carolina legislature did when it passed their voter ID law (which the Fourth Circuit just struck down).  The fact that Texas doesn’t have an after-the-fact procedure isn’t the end of the story, because I think #2 and #3 should still apply and have more force anyway.

On #2, you can commit perjury in Texas even if there is no judge or notary to swear you in, thanks to the “unsworn declaration statute”.

(http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.132.htm)

I’m not sure if the offense is perjury (a misdemeanor) or “tampering with a governmental record” (could be a felony).

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.37.htm.

If it’s a felony, you lose the right to vote during your punishment.

(http://www.sos.state.tx.us/elections/laws/effects.shtml).  If I lied to cast a ballot, I would fear that a lot more than a challenge to cancel my vote.

On #3, you can still contest an election.

http://www.statutes.legis.state.tx.us/Docs/EL/htm/EL.232.htm  If I lost an election by fewer votes than impediment affidavits that were cast, I’d challenge it!  And if votes through false affidavits did not swing an election, that individual harm could still be solved by throwing them in jail.

So overall, yes, there is a difference between provisional and regular ballots, but not one that matters here if voters that lie on affidavits can still be jailed and elections can still be contested.

Warmest regards and have a nice weekend,

Sue Evenwel”

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