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How a federal lawsuit could open the door to online voter registration in Texas

Texas is one of just a handful of states that doesn't offer online voter registration. Advocates are hoping a recent ruling from a federal judge could change that.

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From Jacquelyn Callanen’s perch in the Bexar County elections office, the period following Texas’ voter registration deadlines is best described as a paper tsunami.

Some of it arrives by mail. Some stacks are delivered by volunteer voter registrars. The secretary of state’s office sends over a handful of boxes filled to the brim.

No matter the carrier, last-minute drives to register people by the 30-day deadline ahead of each election typically leave local elections offices with a surge of work. To make sure prospective voters make it onto the rolls in time for Election Day, county offices have to hire temporary workers to help thumb through and process tens of thousands of voter registration cards and applications.

“We hope and pray that all the cards are filled out completely,” Callanen said.

If they aren't, officials have to mail notices for incomplete applications. By the time voters respond, they’re “right on the cusp” of the start of voting and officials end up “trying to register people literally two days before Election Day,” Callanen said.

The mad dash to complete these tasks before the first day of early voting is in part a result of Texas’ refusal to allow for online voter registration, which is already in place in the vast majority of states. But Texas could be forced to create at least one narrow avenue for online voter registration after a federal judge ruled that the state is violating the National Voter Registration Act, a decades-old federal law that aims to make it easier for people to register to vote by forcing states to allow registration when drivers apply for or renew their driver’s licenses.

Texas allows people to renew their licenses online but doesn't allow them to register to vote at the same time. Last week, U.S. District Judge Orlando Garcia told the state to fix that. 

And while the Texas Attorney General's Office has said it will appeal that ruling, supporters of online voter registration are hoping that a court-ordered online system for drivers will open the floodgates to broader implementation in Texas.

Once such a system is in place for some, supporters ask, why not broaden it for everyone else?

An outlier

Thirty-seven states already offer online voter registration; neighboring Oklahoma, which is in the process of implementing online registration, will be the 38th. Big states, small states, red states and blue states all make the option available. And voting rights experts say it’s hardly a new phenomenon, much less a contentious one.

“There was a time when online voter registration was something new and people had differing views on its applicability,” said Jonathan Brater, a lawyer with the nonpartisan Brennan Center for Justice. “At this point it’s really become the norm. It’s not something that should be a controversial reform.”

But the proposal has floundered at the Texas Capitol. Legislation has been raised several times — championed in recent years by state Rep. Celia Israel, D-Austin — but has never made it to the governor’s desk.

In 2015, Israel touted bipartisan support for the bill after 75 other state representatives, including more than 20 Republicans, signed on. But in the most recent legislative session, Israel’s proposal hardly gained any traction, even with the endorsement of many of the state's election officials — tax assessors and voter registrars, election administrators, county clerks and the Texas Association of Counties.

Now, Israel says she is eying a possible online system for drivers as a test run that could help make her case at the Capitol for full-blown online registration.

"There are a lot of misconceptions about online voter registration, and this is a step in the right direction," Israel said. "The truth of the matter is that online voter registration is more secure than our current paper process, and it is going to save our counties precious time and money."

The only real opposition to her proposal seems to come from detractors in populous Harris County. Officials from the Harris County Clerk’s Office have warned that online voter registration could leave the state vulnerable to voter fraud.

Alan Vera, who heads the Harris County Republican Party’s Ballot Security Committee, said “the internet is simply not yet sufficiently secure.”

“[Other] states are taking a risk I would not want to see Texas take,” Vera said. He cited the testimony of Rice University computer science professor Dan Wallach, who warned the U.S. House of Representatives that “our biggest vulnerabilities are our voter registration databases.”

But some experts say those concerns are unfounded, and the secretary of state’s office has testified that it could securely implement such a system.

“As online voter registration has been implemented, it’s shown to be more secure than other forms of voter registration,” Brater said. “There’s really not a legitimate argument along those lines.”

"Excuse for noncompliance"

The issue of online voter registration came back into focus this year with Garcia’s May 10 ruling on a 2016 case alleging that Texas is violating the decades-old national voting rights law. Texans can already register in person at Department of Public Safety offices, but not when they renew their licenses online.

The state's "excuse for noncompliance" — including purported technological difficulties associated with online voter registration — "is not supported by the facts or the law," Garcia wrote last week in a 61-page opinion, giving the state until Thursday to propose a detailed fix for the system.

That fix could mark Texas’ first avenue for online voter registration — one advocates say should be expanded to include the rest of the state's eligible voters.

"If the system is already set up, I would really, really hope that lawmakers would be able to put partisan differences aside and pass a common-sense law," said Mimi Marziani, president of the Texas Civil Rights Project, the advocacy group that brought the lawsuit. 

The state has vowed to appeal Garcia’s ruling, saying it’s confident the 5th U.S. Circuit Court of Appeals will see the case differently, and there’s not likely to be any legislative movement on the issue until the lawsuit is resolved.

But supporters of online registration are already eying the court order as a “baby step,” saying any online system DPS ultimately enacts as a result of the ruling could serve as a pilot program that would help assuage any remaining concerns among Texas’ leadership.

“I don’t know why Texas wouldn’t make it more broadly available,” Brater said. “If it’s going to build a portal [for those renewing driver’s licenses], it doesn’t seem like it would be a very heavy lift to just make an online voter registration portal available. I don’t know why Texas wouldn’t take that step.”

Advocates say online voter registration makes the process easier and more accessible, particularly for young people and voters of color. But for local election officials hoping to convince state leaders, the best case for online voter registration might be an economic one.

The current system is riddled with costly pitfalls that could be easily fixed through online registration, said Bruce Elfant, the tax assessor-collector and voter registrar in Travis County, who has advocated for an electronic system for years.

In addition to easing counties’ workloads and reducing the need for temporary workers, online registration would eliminate the labor and postage costs that come with contacting the thousands of Texas residents that submit incomplete registration cards, advocates say.

“We are inundated with tens of thousands of paper applications — many of which have questionable handwriting,” said Elfant. “It’s a monumental task to get all that data entered into our system. … It’s very last century.”

And because voters would be entering their personal information themselves, online voter registration would also result in more accurate voter rolls, officials said.

“All around, it is such a win-win,” said Callanen, the Bexar County elections administrator.

The path forward

Enacting full-blown online voter registration would require legislative approval and a sign-off from Gov. Greg Abbott, a Republican. The governor's position on online voter registration remains unclear; his office did not return a request for comment on the issue.

But supporters of online registration are bracing for resistance from the state’s top leadership.

“I think there’s a concerted effort to keep people out of our democratic process,” said Beth Stevens, voting rights director for the Texas Civil Rights Project.

Last year alone, federal judges ruled the state violated the voting rights of its residents in redrawing the state’s political maps, through voter identification requirements and by enforcing restrictions on language interpreters at the polls. (An appeals court recently upheld the state's current voter ID law.) Against that backdrop, the failure to allow people to register to vote online seems “part and parcel” with the state’s broader efforts to suppress voting, Stevens added.

Meanwhile, many other states have moved beyond the question of online voter registration. Eleven states and the District of Columbia have approved automatic voter registration, which experts tout as the next frontier for modernizing the voting process.

But in far-behind Texas, online voter registration would at least be “a toe in the water,” said Susan Nold, the director of the University of Texas at Austin’s Annette Strauss Institute for Civic Life.

“In the context of all the different reforms across the country to make the voter registration process more modern and more voter-friendly, it’s a small first step in that biggest context,” Nold said. “But for Texas it would be an important initial step.”

Disclosure: The Texas Association of Counties, Rice University and the University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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