By: Evan Lewis
Hurricane Harvey made landfall as a category four hurricane on the South Texas coast on August 25, 2017. Harvey was the first major hurricane to make landfall in the continental United States since Hurricane Wilma made landfall in 2005. The storm stalled over Texas through the next several days, dropping 51.88 inches and 27 trillion gallons of rain over parts of Houston, the state’s most populated city, and causing nearly $200 billion in damages spread from Rockport in South Texas to Beaumont near the Louisiana border. As those affected by the storm struggle to piece their homes, their livelihoods, and their families back together, one could not fault them for not thinking about how Harvey might affect their ability to vote in the upcoming November 2017 statewide elections (which mainly concern proposed amendments to the state constitution) or the 2018 statewide elections.
The latest voter ID law in Texas took effect on January 1, 2012. The law requires prospective voters to present an acceptable form of ID (generally some form of government issued photo ID), or that voters supply a “supporting document” such as a utility bill or a bank statement along with a declaration stating that they had some reasonable impediment to obtaining a photo ID.
Since its passage, the law has been embroiled in litigation. Most recently, in August, a federal district judge ruled that the law had both a discriminatory effect and intent towards minority voters. The Fifth Circuit Court of Appeals nonetheless ruled in September that Texas may use the voter ID law for the 2018 election, and a more recent order by that same court in October denying an en banc hearing of the appeal from the district court makes it a near certainty that the voter ID law will be used in 2018.
Poor and minority communities were some of the hardest hit by Hurricane Harvey’s destruction. As homes and neighborhoods flooded, families lost vital records needed to satisfy state voter ID requirements. Additionally, as of October 1, 2017, sixty-thousand Texans were still displaced due to the hurricane’s effects. Concerned with the potential disenfranchisement of voters affected by the storm, the NAACP sent a letter to Texas Secretary of State Rolando Pablos on October 11, asking him to ensure that did not come to pass. The Texas code (Tex. Elec. Code Ann. § 65.054(b)(2)(C)) already recognizes that a natural disaster is an extenuating circumstance necessitating accommodations, providing that if a “voter does not have any identification meeting the requirements of [the Texas voter ID provisions] as a result of a natural disaster that was declared by the president of the United States or the governor” that “caused the destruction of or inability to access the voter’s identification,” the voter is permitted to vote if they execute an affidavit so stating.
However, this provision only applies if the natural disaster in question occurs no earlier than 45 days before the ballot is cast. Texas Governor Greg Abbott declared a state of emergency on August 23, 2017, the day the hurricane made landfall, and then extended the proclamation on September 20, 2017. Therefore, the natural disaster provision applies through December 4, 2017, placing the November elections within the covered dates. However, dates important to the 2018 midterm elections fall outside of this range. For example, primaries and municipal elections are slated to take place in mid-March. The 2018 midterms are important elections nationally, of course, but are especially important to Texas. Both Governor Greg Abbot and United States Senator Ted Cruz are up for reelection.
The Texas state voting website presently informs voters who evacuated due to Harvey that they can either vote in their home county, give up their registration and register in a new county (which had to be done by October 10), apply for a ballot by mail (which had to be done by October 27), or apply for a limited ballot, which lets them vote in their new county, but only for offices and policies that overlap with their previous county. Beyond that, the Texas Department of State has been largely silent in response to concerns from the NAACP.
The problems posed by Harvey presents an unexpected and interesting twist to the controversy surrounding Texas voter ID laws. While sixty-thousand disaffected voters makes up only a small fraction of the fifteen-million registered voters in Texas, the disproportionate impact to disadvantaged and minority communities parallels criticism of such laws.