By Dru Tigner

What do Greg Abbott, Wendy Davis, State Senator Letitia Van De Putte, Former U.S. House Speaker Jim Wright, and U.S. District Court Judge Sandra Watts all have in common? They all apparently have high potential for committing voting fraud– at lest according to the State of Texas. All five of these prominent Texas leaders were hassled by the new Texas Voter ID Law this past November.


It has been a concern for those opposed to the Voter ID Law that it will make it difficult for individuals to obtain appropriate identification, and thus poor, elderly, and minority voters will be disenfranchised because they lack appropriate identification. However, it seems that one distinct group that also may be affected are people whose photo ID’s don’t match the name that is recorded in the voter rolls.

Of the five people listed above, the only individual who had trouble obtaining an ID was 90-year-old former Speaker Jim Wright. The other four were forced to sign an affidavit because their names on their IDs did not match exactly to their names on the poll books.   Only 0.2% of the voting population had to cast a provisional ballot presumably due to improper ID, while some precincts are estimating that as high as 40% of voters had to sign an affidavit for name inconsistencies.


The law states that the voter must present herself at the polling place with identification that is identical to what is shown in the poll book. If the voter’s ID is not identical, then the poll worker will make a determination if the names are “substantially similar.” If the names are substantially similar then the voter can sign an affidavit and cast her ballot. If the names are not deemed by the poll worker to be substantially similar then the voter will be asked to cast a provisional ballot. After the voter casts a provisional ballot she will have six days to present an appropriate ID.  However, even if the voter goes through all of the necessary steps to verify her provisional ballot, the law states that her vote still may not count.


The part of the law that allows for the affidavit was not actually in the original legislation. It is an amendment proposed by Wendy Davis that allows those with substantially similar names to sign the affidavit to vote. This fix, ironically enough, is the reason Greg Abbott, a big proponent of strict voter ID laws, was able to vote in this past election


Even though Abbott was affected, women generally change their name much more frequently then men, which means that women’s voting rights will be impacted significantly more then their male counterparts. Thus the law is not only potentially in violation of the 14th amendment, but the 19th amendment as well.


The 19th Amendment states that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” 19th Amendment claims are certainly out of the norm in modern American legal practice. Outside the initial aftermath of the enactment, there has not been extensive litigation over a woman’s right to vote.


However, the 19th Amendment was modeled after 15th Amendment and the language is almost identical. The Amendments are also often referenced together–see Williams v. Rhodes for example. Thus, there is a strong argument that 15th Amendment jurisprudence can be applied to a 19th Amendment claim.


The 15th Amendment, however, applies only when there is intentional discrimination by the state. For facially race-neutral laws, plaintiffs can still prove discriminatory intent by showing a disparate impact on the group affected, but this is a hard standard to achieve.


In this case, while the law applies equally to both men and women on its face, there is no question that it will substantially burden women more then men. Thirty-three percent of women are estimated to lack an ID that matches the voter rolls. While, again, it will be difficult to find the element of intent which is required under a desperate impact claim, the extent in which women are affected coupled with Texas’ history of sex-based discrimination might be enough to state a claim. It will also be a challenge to find an appropriate plaintiff—a woman with an injury in fact. laintiff would have to be a woman who was actually denied the right to vote because she had insufficient identification.


Even if there is not a lawsuit percolating, this is certainly a hot button issue. Within just a few weeks after the election, the blogosphere has been filled with articles about Texas violating women’s rights, yet again. And with a strong female gubernatorial candidate on the ballot against a man who is seen as a leader in the “War on Women,” this is certainly an issue that will not be going quietly into the Texas night.

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