By: Benjamin Daily

Despite worries that confusion about voter ID requirements in the wake of Veasey v. Abbott would keep voters away from the polls, Texas’ ten largest counties saw record numbers of early voters.  Early vote totals consistently surpassed comparable totals in 2008 and 2012. Although the overall turnout rate was slightly less than in 2008, due primarily to increased turnout not keeping up with population growth, more Texans voted this year than in 2008 and 2012.

The increase in early vote totals comes after the Fifth Circuit overturned Texas’ voter ID requirements in Veasey v. Abbott. The court found that the requirement violated Section 2 of the Voting Rights Act and remanded the case to the District Court to determine the proper remedy. Texas and the Justice Department entered into an agreement allowing voters without photo ID to sign an affidavit stating that they are eligible to vote and to present other forms of ID such as utility bills, bank statements, or paychecks in order to vote.

Even after the Veasey decision, however, the response of the state drew criticism. U.S District Judge Nelva Gonzales Ramos found that Texas had misled voters and poll workers about the ID requirements to cast a ballot, holding that the language used by Texas in their educational materials was misleading. The court required Texas to alter its materials to contain the proper language and also required Texas to obtain preclearance from the plaintiffs before publishing additional material.

Texas’ implementation of the new court order has not been without issues. Problems that have been reported include polling places using old posters with incorrect rules and poll workers incorrectly telling voters that they cannot vote without photo ID. The effectiveness of the state’s education efforts have also been called into question. A survey conducted by the University of Houston’s Hobby School of Public Affairs found that only 26% of voters understood that a photo ID was not required to vote while 44% of voters believed that it was.

The actions of individual Texas election officials in regards to the altered requirements have also come under fire. In a filing with the District Court, the Veasey plaintiffs criticized Harris County Clerk Stan Stanart for stating that his office would investigate all cases where individuals signed affidavits instead of presenting photo IDs. In their filing, the petitioners claimed that the statement was intended to suppress voters who did not possess photo IDs.

The increase in early vote turnout could have important implications for future election law litigation in Texas. Opponents of the law will likely cite an increased number of voters as evidence that the voter ID requirement had a significant effect on voter turnout in a challenge to similar laws. Additionally, if the increase in early vote only signals a shift in voting patterns rather than an actual increase in turnout, the numbers could be important evidence against the state in a Section 2 challenge should the state consider changing early voting procedures.

The State of Texas has appealed the Fifth Circuit decision in Veasey v. Abbott. The Texas Legislature, which will be in session during 2017, could also attempt to pass a new version of the law which conforms to the Veasey decision.

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