The confusion started in the first hour of the first day of early voting in San Antonio last October.
Signs in polling places about the state's controversial voter ID law contained outdated rules. Poll workers gave voters incorrect information. Lines were long — full of people who were full of uncertainty.
The presidential election of 2016 was off to a sputtering start in Texas, where years of angry claims about illegal voting had led to a toughening of identification requirements for those going to the polls.
On that day last October, Nina Perales, vice president of litigation for the Mexican American Legal Defense and Education Fund, was met with a line out the door when she arrived at her San Antonio polling place.
"A poll worker stood in front of me where I was and said, 'You are at the one-and-a-half-hour mark,'" Perales said. "And she insisted your ID needed to be out when you got to the front of the line."
But that, in fact, wasn't the law. A compromise a federal court had settled on months before allowed those without photo IDs to fill out an affidavit and show alternate ID.
"So, we filed suit against the county," Perales said.
Days later, Bexar County, home to San Antonio, agreed to try and remedy its mistakes — poll workers would be retrained, signs would be corrected and voicemail instructions for voters would be updated.
But a ProPublica review of the 2016 vote in Texas shows that Bexar County's problems were hardly isolated — and, in many cases, were beyond fixing.
Indeed, the state's efforts to enact and enforce the strictest voter ID law in the nation were so plagued by delays, revisions, court interventions and inadequate education that the casting of ballots was inevitably troubled. Among the problems that surfaced:
- The promised statewide effort to inform Texans about voter identification requirements failed terribly. ProPublica contacted hundreds of community organizations and local county party officials to see if they'd received a voting instruction manual the state said it had sent but could not find one who had used it. The largest voter education groups — League of Women Voters Texas, the Southwest Voter Registration Education Project, MALDEF and several disability rights groups — said they didn't get copies at all.
- The fiscal note attached to the 2011 bill indicated voter education would cost the state $2 million. That's one-fifth what a similar bill in Missouri — a state with 21 million fewer people than Texas — allocated. While the Texas secretary of state's office spent the majority of its voter education budget in 2016 to educate voters about the law, the money appears to have been wasted on an ineffective campaign.
- The Texas Department of Public Safety, a law enforcement agency tasked with issuing free IDs for voting purposes, initially required those who applied for the ID to be fingerprinted, a decision many say scared off potential voters. DPS also didn't have Spanish translators in all of its offices and didn't initially provide applications or information about the free IDs in any language other than English.
- Remarkably, the very aim of the legislation — to thwart people from voting illegally — was not fully addressed by the law, which allowed three versions of identification obtainable by non-citizens.
Jacquelyn Callanen, the election administrator for Bexar County, said she is still furious about the state's performance in handling last November's vote.
"I've been doing this for 22 years," she said. "This was the most complicated and emotionally charged election I have ever seen."
Over the past decade, the issue of voter ID has become one of the most contentious in an already badly divided nation. Hundreds of such bills have been proposed, and more than 30 states now have their own versions in place. Litigation has followed in several states.
The fight in Texas has been particularly prolonged and bitter — full of angry accusations, competing research and lengthy court cases from the moment the law was formally passed in 2011.
A federal judge in Corpus Christi ruled in 2014 that the law requiring one of seven strict forms of government-issued photo ID was discriminatory. After a couple of unsuccessful appeals by the state, the judge wasn't able to hammer out a temporary fix for the law until last August, leaving officials scrambling to implement it before early voting started in late October.
Texas went solidly for Donald Trump. He took 53 percent of the vote to Hillary Clinton's 43. But turnout was modest in a state that regularly ranks among the worst in eligible voters who actually vote. Turnout was down in some dependably Democratic sections — urban centers such as Houston and Dallas — and up markedly in Republican strongholds such as Polk County in East Texas.
In the end, it's not clear if the voter ID law affected any of the final vote counts. The best estimates suggest that about 600,000 of Texas' 15 million registered voters lacked the type of ID required by the new law, but the federal judge's late intervention opened the way for many of them to vote anyway.
Still, the fight over the law in Texas goes on. Just weeks ago, the federal judge in Corpus Christi again ruled that the law was passed to intentionally discriminate against minority voters. The state has already pledged to appeal the ruling, despite having spent millions of dollars and losing at every stage. To date, Texas has never won a case related to the law.
While the legal drama boils on, the Legislature is contemplating a bill that would essentially lock in place the compromise that caused so much confusion on Election Day.
Whatever the merits of the debate over the necessity and efficacy of voter ID laws, there is consensus that such measures must be implemented with a good-faith effort at consistency, clarity and accountability. The 2016 experience in Texas — years in the making and flawed from start to finish — provides an unfortunate blueprint for how not to achieve that.
Doug Chapin, the director of the election administration program at the University of Minnesota, said any far-reaching election law — especially voter ID laws — take an incredible amount of time to implement. A failure to educate voters, and especially election administrators, routinely leads to a failure to achieve the law's goals.
"Legislators believe that just because they've enacted a bill that changes will happen," he said. "There are a lot of steps — it's not magic."
Making a case for voter ID
Texas has required voters to bring documents bearing their names to the polls since 1951, when voters were required to present a poll tax receipt. In 1966, when poll taxes were found unconstitutional, voters presented their registration certificate or signed an affidavit indicating they were registered. In 1997, a law passed allowing other forms of ID to be shown in lieu of the certificate, though an affidavit was still required. Election administrators accepted anything with a photo and a name, including student IDs and employee IDs, and even Blockbuster membership cards.
But in the early 2000s, Republicans began raising the specter of voter fraud after the prolonged legal fight over George W. Bush's defeat of Al Gore. Bush prevailed despite losing the popular vote, an outcome Republicans blamed on illegal voting. Announcing a committee to investigate voter fraud, U.S. Attorney General John Ashcroft declared, "Votes have been bought, voters intimidated, and ballot boxes stuffed."
After years of investigation, Ashcroft's committee turned up only a small handful of cases of voter fraud — nothing on the scale he alleged. Still, Texas Republicans took their lead from the national conversation, proposing the state's first strict voter ID bill in 2005. It required voters to show their registration certificate and one photo ID, or two non-photo IDs. Numerous acceptable options were given. Democrats successfully torpedoed the bill.
Democrats were also successful two additional times, blocking slightly more restrictive bills: A 2007 bill would have required voters to present their registration certificates and one of eight forms of photo ID or two of 11 forms of non-photo ID. And in 2009, an almost identical bill was considered that removed some student IDs and employee identification cards as acceptable photo identification. It still included the option of showing two non-photo IDs as an alternative, and it allowed exceptions for indigent and elderly voters.
Rep. Todd Smith authored his own, less severe, voter ID bill in 2009. It never came to a vote. Smith, the chairman of the House Elections Committee at the time, said in an interview that voter ID had become such a "substantial political hot potato" that the Legislature couldn't address more important issues until it was dealt with. He said he regarded Republican claims of fraud as overblown and saw Democratic fears of harm to minorities as similarly overstated.
And so with nods to both sides, Smith said he tried to write a bill that would address the concerns of his riled up base while disenfranchising no one.
"I was trying to solve a political problem that was in fact affecting the Legislature's ability to get its work done in a way that essentially caused no harm," he said.
He was attacked from both sides. Hardcore Republicans lambasted him for not supporting a tougher bill. Democrats felt they couldn't sign onto any voter ID bill. Nothing happened. Eventually, Smith would vote for the more severe 2009 bill Democrats successfully defeated.
But by the time the Texas Legislature was ready to try again, in 2011, the rise of the Tea Party had propelled Republicans to a 101-49 supermajority in the Texas House. They easily succeeded, then, in enacting the country's most restrictive voter ID measure.
"There was no need for compromise anymore," said Smith. "Which apparently resulted in an unconstitutional piece of legislation."
The new law allowed seven forms of government-issued photo ID only — types critics say were chosen because white residents were most likely to possess them. While previous versions of the law allowed student IDs, tribal IDs, government employee IDs and IDs issued by other states, these were left out of the 2011 bill without explanation. Gone, too, were the provisions from previous iterations that allowed the use of two non-photo IDs in place of one photo ID. The 2011 bill also made it more difficult for disabled voters to qualify for an exemption and the final version removed provisions that allowed indigent voters a waiver.
Smith later remarked in testimony that "every Republican member of the Legislature would have been lynched if the bill had not passed."
President Barack Obama's Department of Justice moved to halt implementation of the law, saying Texas had failed to prove it would not damage the rights of minority voters. Texas was one of several states with troubled racial histories required to get Justice Department approval for any election law changes under a process called preclearance. And so for two years, the new Texas law was on hold.
But in 2013, the Shelby County v. Holder decision by the Supreme Court struck down the formula that determined which states were included under preclearance, effectively giving Texas the go-ahead to implement any laws it wanted.
Greg Abbott, then the Texas attorney general, was eager to pounce on the state's newfound freedom. Minutes after the Supreme Court decision was announced, he tweeted, "Texas #VoterID law should go into effect immediately." Abbott launched his campaign for governor three weeks later.
Chad Dunn is Texas' most notable voting rights attorney, trying election cases ranging from local school boards to statewide redistricting. He was at the Supreme Court when the Shelby County decision was announced and saw Abbott's tweet while still standing on the steps of the courthouse.
"I put my phone back in my pocket and went straight to my hotel room and worked all night on a lawsuit," said Dunn, who'd previously been involved in the effort to block the law under preclearance.
The next day, Dunn filed the lawsuit on behalf of Democratic state Rep. Marc Veasey (now a U.S. congressman) and three affected voters. It soon grew to involve a range of civil rights organizations and the Justice Department itself. The umbrella lawsuit eventually became Veasey v. Abbott after Abbott was sworn in as governor in January 2015.
The lawsuit alleged, among numerous accusations, that the Republican Party had forced the bill through using tricky legislative tactics. Then-Gov. Rick Perry declared voter ID an "emergency" bill to allow it to be voted on earlier despite no clear emergency, and it was assigned a hand-picked committee in the House that considered only that bill. In the Senate, it was assigned to the Committee of the Whole — a committee comprising the entire body — which allowed it to move faster to a final vote.
The lawsuit also said Republicans had rejected amendments that would have remedied the bill's impact on minorities. While an amendment was initially adopted that would have specifically aimed voter education at poor and minority voters, it was removed without explanation in conference committee. Other amendments were never adopted. Among them: an amendment that would have required the Department of Public Safety to expand its hours at branches offering free IDs — called Election Identification Certificates, or EICs. Legislators also refused to expand the types of identification to include government-issued student or employee IDs, saying they didn't want to confuse poll workers. This objection was not raised when an amendment was presented to include a concealed handgun license on the list of acceptable IDs, which passed.
At trial, Sen. Dan Patrick — now the state's lieutenant governor — acknowledged many of the amendments would have helped minority voters but said he didn't remember why he voted against them. He did acknowledge, however, that he voted against an amendment that would have allowed indigent voters to obtain underlying documentation necessary to apply for EICs because he wanted the costs to be borne by voters, not the state.
Attorneys for the plaintiffs in the suit also questioned the stated motivation of the bill's authors — Sen. Troy Fraser and Rep. Patricia Harless. While both insisted their motivation was to prevent in-person voter fraud, neither presented any evidence that such fraud existed — even when specifically asked to do so during floor debates.
During the debate in the House in March 2011, Rep. Rafael Anchia, a Hispanic representative from Dallas, had an exchange with Harless.
"Do you have any cases of voter impersonation?" he asked her, according to a transcript.
She responded, "I'm sure you know more about that than I do."
Neither Harless nor anyone supporting the bill in the House provided data or even a credible anecdote regarding in-person voter fraud, the only type of fraud preventable by the bill, known formally as Senate Bill 14.
"She couldn't tell me about any problems because there weren't any," Anchia told ProPublica. "It was a solution in search of a problem."
In the Senate, Fraser also presented no evidence and refused to answer many critical questions altogether. He responded, "I am not advised" at least 27 times during the course of the Senate debate in response to questions about everything from the extent of in-person voter fraud to the bill's impact on the budget to funding for voter education and the impact on minority voters.
The inability to provide evidence of voter fraud might well be explained by its lack of existence. Abbott had actually launched a statewide initiative to investigate voter fraud and train local officials on how to stop it. It, like Ashcroft's investigation before it, turned up almost no accounts of fraud despite costing millions.
In an interview, Carlos Cascos, a former Republican county judge from South Texas who served as Texas' secretary of state from January 2015 to January 2017, said he has yet to see any evidence of the mass fraud claimed by some in the Republican Party. Cascos said he generally avoided discussions on the existence of in-person voter fraud when he was in office because his criticism was not warmly received.
"I just don't believe that voter fraud was rampant in the state," he said, adding that the "weak link" is mail-in ballot fraud, which the voter ID bill did not address. "I don't believe that you have literally thousands of people showing up to the polling place and that's not who they are."
Smith, the former state legislator who had tried to engineer the voter ID bill amenable to both parties, created a slideshow that he took to Republican meetings in his district, which in part presented evidence of the lack of in-person voter fraud. The grassroots activists at the meetings were often shocked to hear that in-person voter fraud was not the rampant problem they'd been led to believe.
"They are well intended patriots who are being stirred up by other people at leadership levels, and they may not have exactly the same motives," said Smith. Conservative activists and leaders, he said, "knowingly give them the false impression that the problem may be more significant than it is."
Smith said the Republican motivation for this misinformation isn't so much to disenfranchise minorities as to help arm Republicans with a false, but potent, campaign issue. The number of people who would truly be disenfranchised is too small, Smith said, to impact state races. Instead, they give Republicans a talking point to appeal to their base.
"If you persuade people that you are the party trying to make sure elections are controlled by American citizens and that Democrats are doing everything they can to make sure that illegal immigrants can vote by the busload, that's a good position to be in," he said.
This was what he believes motivated the harshness of the 2011 law, which he ultimately voted for because his constituents still felt so strongly about its necessity. "It was important to me to be seen back home in support of that bill," he said.
The lawsuit criticized the 2011 bill's insistence on only a few types of allowed IDs. Janice McCoy was Fraser's chief of staff and was partially responsible for sorting out the types of IDs that would be considered acceptable. Tribal IDs, for example, were tossed because no one in her office could figure out how many Native American tribes there were in Texas.
"I do recall sitting there on my computer and Googling trying to figure out how many tribes were in Texas, how they have IDs, how you get an ID, can anybody get an ID," she said. "We couldn't find it." A list of registered tribes in the state is readily available through the Department of the Interior — there are three, each with their own clear rules for qualifying for an ID.
During the process of drafting SB 14, the Texas secretary of state's office studied its potential impact. They estimated between 3 percent and 7 percent of Texas voters did not have a driver's license or personal ID. Staff members at Lt. Gov. David Dewhurst's office were told of the findings, but testimony in 2014 shows that they were never given to the rest of the Legislature, even though members – including Harless – had repeatedly asked for such numbers. Attorneys for the state said the numbers were not disseminated because they were unreliable — the office was experiencing problems matching the list of registered voters to the list of driver's license holders. A full analysis — including an accounting of voters with Spanish surnames who were without these IDs — was not completed until long after the law had passed.
By the time he was deposed by attorneys in the case against SB 14, Smith had lost his 2012 bid for state Senate in the Republican primary. His opponent had used his soft voter ID bill as a talking point. Out of the political fray, he adopted an unapologetically frank tone. He said none of the studies that could have been presented would have mattered — he already knew minorities were less likely to possess photo IDs. "I think it's a matter of common sense," he testified. "I don't need a study to tell me that."
The federal judge assigned the case, Nelva Gonzales Ramos, didn't have much trouble sorting through the evidence. In October 2014, three weeks after the trial ended, Ramos hit the state with a scathing 147-page opinion ruling the law both intentionally discriminated against minorities and had a disproportionate negative impact on them.
The state would appeal this to the U.S. 5th Circuit Court of Appeals, first to a three-judge panel and then to the full slate of judges. As the case inched forward, the 2016 presidential election approached. Ultimately, the state kept losing. The appellate court agreed that the law had a discriminatory impact and asked Ramos to reconsider whether the state had written the law to intentionally discriminate against minorities. They also asked her to come up with a temporary solution to mitigate the harm to minorities in the upcoming election.
So, in early August 2016 — just two months before the start of early voting — Ramos approved a compromise: Voters would be asked to provide their ID if they possessed one. If they didn't, they could fill out a form under penalty of perjury and cast a ballot. The state also agreed to spend $2.5 million on voter education to help voters understand how to comply with the law — though a spokesperson for the Texas secretary of state's office said they'd already intended to spend this amount of money.
Putting voter ID into practice
The man charged with overseeing the 2016 Texas vote was Keith Ingram, the director of elections for the secretary of state's office. It was a big job — training election officials, educating voters, doing it all in English and Spanish and all while the law was being continually litigated and modified.
He was hobbled by many things: a dwindling budget, a small staff and a sweeping brain drain that had hit his office in the years prior to the implementation of the law.
In 2009, the election division's director of special projects left after almost three decades of service. The assistant director of the elections division was fired that year after making an off-color joke — she'd been in that role for more than 20 years. The director of voter registration left at the end of 2011, having spent 30 years in the office. Ann McGeehan, Ingram's predecessor, announced her resignation in tears in 2011 after working for the office for 18 years. The office's director of legal services left in 2012 after 22 years.
Joseph Kulhavy was a staff attorney in the office between 2004 and 2013. His job — in part — included reviewing bills and election law changes for Voting Rights Act compliance. The secretary of state's office said his firing was because of a recording of a phone call he'd had with a Houston-area activist that had been posted online weeks before.
He and two other employees who asked not to be named say the turnover was politically motivated. Perry and then Abbott had begun to pack the house with their supporters.
"It was like a victory party for the Abbott campaign," said one of the former election department employees.
Kulhavy went further, saying it was widely known that certain employees were opposed to the voter ID law and that political officials in state government wanted them out.
"We knew it would disproportionately affect poor, elderly and minority voters and that it was basically a mechanism for disenfranchisement that didn't have any valid regulatory purpose," he said.
The Texas secretary of state's office denies these accusations. Sam Taylor, a spokesman for the agency, accused Kulhavy of attempting to carry out a "smear campaign" against the agency.
"The position of individuals on voter ID is not known to the secretary of state's office, nor has the agency ever solicited opinions from agency employees on voter ID," said Taylor. "The notion that the turnover had any connection to personal political opinions of employees is patently false."
Few of the replacements had any extended experience in elections. Instead, many had direct connections to the Republican Party. Louri O'Leary, who manages election administration, previously worked for Perry doing research on economic development. She was once the executive director of the Texas Federation of Republican Women. The division's new lawyer, Ashley Fischer, worked for accounting giant Deloitte prior to being hired. Betsy Schonhoff, the new voter registration manager, was most recently employed as a "political associate" for Perry's presidential campaign. Taylor said these descriptions were not inclusive of their broader experience with elections, "which include skills relating to conducting and managing elections and election-related issues."
Ingram didn't have any experience, either. In what he himself described in a 2012 deposition as a "weird" and "cloak and dagger" process, he'd been asked to apply for the position without previously expressing any interest. At the time, he was managing political appointments for Perry's office.
Ingram readily and publicly admitted that he had no election law experience. In a March 2015 hearing before the Texas House Elections Committee, Ingram said he "did not have a proper appreciation for … the complexity of election law" when he took the job. The person who'd recommended him told him he'd "know it as well as at least I know my Bible," he said. "I have endeavored to do so, but it is a complicated subject matter."
Ingram's endeavor appears to have paid off. In an emailed statement, Taylor said Ingram "has the Texas Election Code memorized and has extensive knowledge of election law in the state of Texas." Several plaintiffs' attorneys agreed that his knowledge of election law in Texas grew to be impressive — he rarely stumbled on the stand or in his depositions. While testifying before the House Elections Committee, Ingram was able to rattle off detailed pieces of the law, explaining it easily to committee members who asked detailed questions.
But while Ingram and his inexperienced staff got their footing, they made missteps — often embarrassing ones.
Kulhavy, the former election department lawyer, said the new leaders of the office didn't know how to certify the results of a statewide election. There were repeated errors in communication between the office and county officials, and it was widely joked in the office that local elections administrators would call Ingram's office to get his predecessor's new contact information. She, they thought, could actually answer their questions. The Texas secretary of state's office denied that any of these things occurred.
But some of the mistakes made for national news. In 2012, the office improperly matched a list of deceased individuals with the voter rolls, resulting in hundreds of living and active voters across the state receiving letters asking if they were dead. Taylor placed blame on the counties, specifically Harris County, which he said failed to follow appropriate procedure in checking the matches before issuing letters.
The secretary of state's office had made nominal efforts to craft training materials when the law passed in 2011, including a video and other instructions, but they weren't in any condition to roll out when the 2013 Supreme Court ruling came down.
"There hadn't been any urgency in getting the material ready because we all felt like the law was never going to go into effect as written," said Kulhavy.
In his 2014 testimony, Ingram said that these materials had been updated in the weeks before the decision and that counties that were in the process of elections were allowed to finish them before implementing the law. But still, putting the law into place so quickly was a challenge. Ingram testified the process was like "trying to build the plane and fly it at the same time."
The effort was made more difficult because of the structure of Texas' election laws. While Ingram's office is tasked with ensuring election law is carried out uniformly across the state, it has no enforcement power to compel local officials to follow the law. In effect, the state has 254 local elections, all run according to the preference of the local administrator.
The state is unable to instruct the county to change even basic problems. Myrna Pérez is the deputy director of the Democracy Program at the Brennan Center, which represented the Texas NAACP. She said that her organization and the NAACP Legal Defense and Education Fund had to call county elections offices who had incorrect information on their website themselves.
"The state refused to do it," she said. "The state kept saying they didn't have any control over them."
The office has a small budget to do on-location trainings with local officials, but Ingram occasionally dips out of his own pocket to travel to them. In January, Ingram spent his own money driving to a training event in Galveston. He took his wife's car, paid for his own meal and drove back the same day.
County elections officials — those responsible for rolling out the November 2016 election — come to Austin just once a year in July for in-person training. Ingram calls this "our big moment."
Traditionally, the timing of the event hasn't been much of a problem. The Texas Legislature recesses in June, allowing all election laws to be safely sorted out by the time the election officials come together. But if anything happens after July, Ingram's office is forced to update local officials through email and phone calls.
The 5th Circuit didn't get the memo about the July training. The judges released their decision requiring the lower court to make changes to the voter ID law on July 20, days after statewide training wrapped up. Once Ramos signed off on the compromise, elections officials had to wait until the secretary of state's office sent out specific materials to retrain election workers.
When Ingram's office finally did email out new materials, at the start of August, there were mistakes. The state had to redo some of the materials and didn't get revised versions to local officials until the very end of August, leaving them with under two months to retrain thousands of staffers.
Michael Winn, the election administrator for Travis County, home to the capital, said the delayed communication "created a challenge" for his office. While he thinks the secretary of state's office probably did the best it could under the circumstances, it was difficult to retrain workers who'd been doing the same thing for 20 years in that short of a time. During voting, the county dispatched more than 20 vans of election trainers to drive around Austin, re-instructing poll workers and solving problems.
There were still mistakes. At one North Austin location, a poll worker forced everyone using the form approved by the federal judge to use a provisional ballot instead. In other Travis County locations, voters complained that poll workers walked the line demanding IDs to be out without telling them about other options, or didn't know how to properly instruct those using the court-approved forms.
Callanen saw many of the same problems in Bexar County. She's been the elections administrator there for two decades, and some of her poll workers have been doing this for as long as she's been there.
"They have their own election kits they carry around — and God bless 'em, that's what you want to see," she said, praising their dedication but lamenting that there simply wasn't enough time to get them accustomed to the new, very complicated process. "We kept saying to our election judges, every time we trained them, 'This is what the law is now,'" she said, adding that her office spent thousands of dollars printing and reprinting instructions, signs and flyers.
And then there were the voters themselves. Reaching millions of Texas voters across the wide expanse of the state would be challenging — especially with less than two months to the start of early voting. They needed to know about the seven forms of IDs that would be accepted, and they needed to know about the new, court-approved process, something that was confusing even for seasoned election administrators.
The secretary of state's office had already reserved $2.5 million of that year's $3.6 million voter education budget for these last few months. According to court documents, they split it between a wide-ranging media campaign, social media outreach, coordination with elected official and the distribution of "digital toolkits" to a list of 1,800 community organizations.
Plaintiffs in the litigation say the state didn't give them crucial information — like the times ads were running or the list of organizations receiving the kits — because this was proprietary information for the contracted PR firm, Burson-Marsteller. The same reason has been given for the denial of public records requests for this information.
Leah Aden, senior counsel at the NAACP Legal Defense and Education Fund, said she and other plaintiff attorneys attempted to offer advice on how to better reach out to minority and indigent populations, but the state didn't want to change its existing plan.
"They didn't really want to hear any of it because they said they knew how to reach Texas voters," she said. She recalled Ramos' 2014 ruling that called the state's education efforts up to that point "grossly insufficient." The 5th Circuit Court of appeals agreed with that characterization in 2016.
"I don't think the state has ever been attuned with how to reach the voters who are on the margins," Aden said.
Cascos, then the secretary of state, recorded the TV and radio ads himself, in English and in Spanish, as previous secretaries of state had done. "It was challenging to get the message out. I think we did the best we could with the amount of time and money we had," he said. "Did 27 million people see them? No, of course not. I think we could have done more if we had a little more money allocated, but the fact that we had the new requirement in August didn't give us a lot of time."
He said he wasn't as familiar with the digital toolkits, which included information on the new rule and distributable press releases and graphics. The state's court filing does not define what "community organizations" were. Pérez of the Brennan Center said that they offered a list of their own suggested community groups to the state, which it rejected wholesale. Taylor of the secretary of state's office said by email they included groups that served minority, first-time voter, elderly and disabled populations.
ProPublica contacted several such organizations, including the League of Women Voters, MALDEF, the NAACP, dozens of black and Hispanic Chambers of Commerce, the three largest disability rights groups in the state and several other organizations that serve populations Taylor said were targeted. Not a single organization indicated it had received the toolkit, nor did they know of any groups that did.
Elaine Wiant, president of the League of Women Voters of Texas, was baffled as to why her organization didn't receive one. "They were in contact with us all the time because we were in contact with them complaining," she said.
Perales of MALDEF was also surprised. "We would have been the first on their list. We're always suing them," she said. The Southwest Voter Education Project — the oldest Latino voter participation organization in the United States — didn't receive one, either.
Callanen also didn't get one and doesn't know of anyone in the San Antonio area who did, despite the city's heavily Hispanic population. She wondered aloud whether it had ever actually been sent out, throwing up her hands. "Why wouldn't you send one to elections officials?" she asked. Of the many elections officials ProPublica spoke with, most were unaware of the existence of such a toolkit. None of them said they received one.
Taylor said that while he could not offer specific names, "more than one" of the groups ProPublica contacted had been sent the kit. He did not respond to a request to provide any publicly available examples of any of the organizations using or distributing information from the toolkit.
ProPublica also contacted every chair of the Democratic and Republican Parties whose contact information was available on the state parties' websites — more than 500 people. Of those who responded, six indicated they'd received the toolkit. The secretary of state's office explained the reason for that was straightforward: they did not send the toolkits to county political parties at all.
The secretary of state's office said it did send a toolkit to elected officials, several of whom told ProPublica they did receive the kit and distributed its contents through social media to their constituents.
But that doesn't appear to have been enough. A study of the $2.5 million effort by researchers at the University of Houston and Rice University surveyed hundreds of registered voters in Harris County who chose not to cast ballots. They found that only 1 in 5 could correctly identify the rules in effect and that Latinos were far more likely than whites to misunderstand the rules.
"It is clear that the public education campaign carried out by the Texas secretary of state in 2016 was not successful in its goal of educating Texas registered voters about the 2016 voter photo ID requirements," it concluded.
Voters across the state also sent in complaints to Electionland, ProPublica's national project tracking election problems in real time. Many reported issues like those Callanen and Winn were aware of. Others who poorly understood the requirements complained about poll workers who were dutifully following the law. Of the hundreds of complaints received from Texas, almost half concerned identification requirements.
In Bexar County, Callanen said some voters who used IDs were "so deeply concerned that their vote wouldn't count" that they forced poll workers to keep the IDs they brought, believing that without their ID accompanying their ballot their vote wouldn't be counted. One voter left behind tax documents. Another left behind a copy of her social security card, and another left an original copy of her birth certificate.
"I have information here I shouldn't have," said Callanen.
A broken promise
One extensively debated provision of the law was its promise to give free IDs to Texans who didn't possess one of the seven required forms. But even here, Texas miscalculated. The law gave this responsibility to the Texas Department of Public Safety — a law enforcement agency.
While the department issues driver's licenses and other state IDs, it is also responsible for statewide law enforcement and oversees the Texas Rangers and state criminal investigations. DPS state troopers also patrol the border. No other state that offers free IDs for voting assigned this responsibility to an agency with the power to make arrests.
State troopers are a constant presence at DPS offices across the state. They are often stationed by the entrance to the buildings in uniform, and their cars line the parking lots. When state IDs are issued, the applicant is fingerprinted and checked for outstanding warrants. If any are found, the applicant is arrested as they exit the building. DPS didn't change this process when they began issuing EICs, and fingerprinted everyone who applied.
Daniel Guzman, a city councilman in the small border town of Edcouch, testified at trial that he offered to drive residents to the DPS who didn't have ID. Many refused.
"Some people are hesitant to step into a Department of Public Safety office where you have state troopers," he said in 2014. "Some people are afraid they might owe citations. Some people are afraid they owe child support and their names are going to get run once they go get an ID card and get arrested on the spot."
Ingram, the top election official, testified that he asked DPS to stop fingerprinting applicants in August or September of 2013. "It felt to us like it was unnecessary and would create an additional hurdle that might be a problem for some voters for whatever reason, and we did not believe that the hurdle was necessary," he said in his deposition.
No formal request was ever sent. Tom Vinger, a spokesperson for DPS, said fingerprinting stopped that September. The rule requiring applicants to be fingerprinted is still on the books, but Vinger said it is not followed and has not been updated because of the ongoing litigation. This contradicts 2014 testimony given by Tony Rodriguez, the senior manager in charge of the department's driver's license division. The rules, he said, hadn't been updated because they "hadn't gotten around" to it. "It's as simple as that."
DPS was also roundly criticized in legal proceedings for failing to publicly advertise that it had stopped fingerprinting. Vinger said news reports at the time broadcasted the change and that the agency had updated its website. But in April 2014 — seven months after Vinger indicated the change was made — the website had not been fixed. The Internet Archive indicates the change happened sometime between April and September of that year — the window in which DPS employees were being deposed for the upcoming trial.
Because DPS is a law enforcement agency and not a voting agency, its officials also were not required to comply with sections of the Voting Rights Act ensuring that Spanish-speaking employees were available to assist Spanish speakers. Applications for the free IDs were not even available in Spanish for more than two months after they began to be offered. DPS for months did not even realize its website had no information about free IDs in any language other than English.
The plaintiffs in the lawsuit argued that DPS seemed to enjoy being ineffective at offering free IDs. Rodriguez regularly checked in with other officials on how many such IDs they'd issued. Court documents show that on one occasion, when the answer was none, he responded, "Zero is a good number."
In his deposition, Rodriguez explained that the remark was sarcastic and reflected frustration the agency had "prepared for something, but it hadn't happened," he said. "We had prepared for a football game, but nobody showed up."
One of the many reasons voters didn't show was because the IDs weren't entirely free. SB 14 provided for a free ID but did not waive the fees for obtaining the underlying documentation necessary to apply for one, like a birth certificate. Georgia and Indiana, on whose voter ID laws Texas' attorneys repeatedly claimed the law was based, made such accommodations.
Sammie Bates, born in 1940, testified by video on the first day of the voter ID trial in 2014. She needed to obtain an out-of-state birth certificate for $43 but couldn't afford to. "We couldn't eat the birth certificate, and we couldn't pay rent with the birth certificate," she testified. Floyd Carrier, in his 80s, and his son Calvin described their "quest" for a birth certificate. They'd paid Texas' $24 fee plus the notary fee, and gotten back a mistake-riddled certificate that was rejected when he applied for his free ID.
When Judge Ramos made her initial ruling in the fall of 2014, she wrote that such failures were tantamount to a "poll tax." In May 2015 — almost two years after the free identification cards, called EICs, were first offered — the Texas Legislature finally waived the cost of in-state birth certificates for those using them to obtain a voter ID. The bill provided no funding to inform voters of the change.
"You just have to know," said Chad Dunn, attorney for the plaintiffs. "You have to know to say that you want a free birth certificate for voting purposes. If you don't, you don't get one for free."
DPS' instructions for how to apply for a free ID make no mention of free birth certificates, nor does the application itself. VoteTexas.gov — the Texas secretary of state's website for voters in the state — also makes no mention of free birth certificates, not even on a page called "Need ID?" that explains how to apply for an EIC. Taylor said it was not present on this page because the plaintiffs did not suggest it be added.
Given all of these issues, almost no voters have taken advantage of the program. From the time they began to be offered in June 2013 to April 2017, when ProPublica requested the numbers, only 869 free IDs had been provided statewide. That's less than 0.2 percent of the 600,000 voters estimated to lack the required ID. Fewer than half of the state's 254 counties had issued any EICs at all, and only 14 had issued more than 10.
"A citizen or an 'illegal'"
The 2016 vote ended with a touch of irony: By the time the vote got underway, the rules were such that the very people who were supposed to have been prevented from voting – non-citizens — still theoretically could.
The legislation, while passed amid suspicion that thousands of non-citizens were voting, was written to include three forms of IDs non-citizens can legally possess in the state.
It's not clear why the bill's authors allowed this. Neither Fraser nor Harless, the two state legislators central to its passage, responded to requests for an interview.
Perales, the advocate for Mexican Americans, said she had repeated conversations with lawmakers before the law passed in 2011, stressing that the required IDs were available to non-citizens and that SB 14 would not prevent them from voting. She said lawmakers seemed unable or unwilling to absorb the implications.
"The justification for the law didn't match the law," she said. "All the legal permanent residents got lost. You were either a citizen or an 'illegal' in their minds."
The case of Rosa Maria Ortega made the hole in the law clear, but no one paid much attention. A legal resident, she'd lived in Texas since she was a child and had registered to vote in 2004 — checking the box that indicated she was a citizen. The county didn't check and granted her a voter registration card. In November 2014, she appeared at the polls when voter ID was in full effect, successfully casting a ballot. Ortega, who had registered as a Republican, voted for Ken Paxton for attorney general.
Ortega's illegal voting was found out in 2015 when she moved to a new county, renewed her voter registration and this time correctly indicated she was not a citizen. She was arrested, charged with fraud, convicted and sentenced to eight years in prison in 2017. Paxton, as attorney general, was responsible for her prosecution.
The possibility that non-citizens were voting last November was worsened by the state's handling of the federal judge's late compromise. The judge's order mandated that people could vote if they presented some form of ID and signed a sworn affidavit attesting to the reasons they lacked the required ID.
But a ProPublica review of the ballots cast this way shows many likely did not conform to the rules.
In Bexar County alone, more than 10 percent of the forms were left half blank. The elections officials simply didn't fill out the bottom half of the form asking for alternate forms of ID. It's not clear if this was in error or if voters simply didn't present the alternate ID they were supposed to. On other forms, voters said they'd left their ID at home or with a spouse — reasons that are not a justification allowed under the compromise for not having an ID. Others offered no reason, writing in things like "I don't have one." One voter wrote in "eye examination" with no explanation for what that meant. On another form, an election official wrote in the margins, "She stated I don't have to tell you. I'm exercising my right."
Callanen, the Bexar County election official, expressed indignation over the forms, which she said would have allowed for much of the fraud that the law was supposed to prevent. Not that she thinks there was fraud. In her 22 years, she said she'd only seen one case of in-person voter fraud. An elderly woman had voted in her recently deceased sister's name. She was caught.
A future in limbo
Today, six years after its adoption and six months after its botched implementation in the 2016 election, the fate of Texas' voter ID legislation is unresolved.
Judge Ramos, ordered by the appeals court to re-examine the question of whether the law was intentionally discriminatory, held hearings in February. The Department of Justice, now answering to President Trump, abandoned its work on behalf of the plaintiffs in the case. After six years of effort, thousands of pages of filings, and hours of arguments before several judges, the department decided it would no longer claim that the state had intentionally discriminated against minorities.
The department asked Ramos to delay her decision until an updated version of the legislation, known as Senate Bill 5, could work its way through the Legislature. John Gore, the new deputy assistant attorney general for the Justice Department's Civil Rights Division under Trump, made the argument in the Corpus Christi courthouse in late February.
"Texas wants to get an early start on addressing this legislatively," he implored. "A new law might fix some of the issues."
Gore had been appointed to the position only weeks before. In his decades as an attorney, Gore has never brought a civil rights case. Instead, he's defended North Carolina's infamous bathroom bill and states against charges of racial gerrymandering.
The proposed updated bill essentially locks in place the court's compromise allowing Texans without appropriate ID to fill out a form and vote. But it does not transfer the power to issue election IDs to a non-law enforcement agency. It does not require any funding be spent on voter education or poll worker training.
It simply maintains the status quo, with one key difference: If an investigation finds the voter lied on their form, they can be charged with a third-degree felony and be sent to prison for between two and five years.
The bill's main sponsor, Sen. Joan Huffman, did not respond to repeated requests for an interview. In a one-sentence statement, she said voter education funding was "still a work in progress" until the final budget was passed. Her office did not respond to a question on what that meant, or if she'd support additional funding beyond the secretary of state's regular budget — which, like all state departments, is suffering a 4 percent cut this year.
Smith, whose 2009 bill allowed for a similar affidavit and far more lenient ID requirements, says he's looking on with humor as the state tries to fix the 2011 bill. "Here we are seven years later and it's still in the courts and the party itself understands it has no choice but to allow non-photo forms of identification pursuant to court's ruling," he said.
The plaintiffs in the lawsuit say the state's pattern of failing to educate voters on how to comply with any new voter ID law will mean people who accidentally fill out forms incorrectly under the proposed revised bill will get thrown in jail. Danielle Lang, the deputy director for voting rights at the Campaign Legal Center, which represents the plaintiffs, called it "mindboggling."
Ramos, for her part, has once more set out her conclusions about the state's true aim. Earlier this month, she again ruled the law was intended to discriminate against minorities, and has scheduled a hearing for June to decide on a remedy.
That remedy could include putting Texas back under federal voting rights oversight — something conservatives in the state would balk at. Dunn says this may be the only option for just voting laws. "The reality is that states like Texas and others in the South have shown time and again that they'll trample the rights of minority citizens absent federal intervention," he said.
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