The Texas Observer

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“There’s no empirical evidence that there’s fraud, but there is empirical evidence that voter suppression works,” said Rep. Garnet Coleman, D-Houston, during our conversation last week about Texas’ Voter ID bill.

Is that so?

The Observer did a little digging around to find out if Coleman was singing his party’s tune or a truer melody – and we started close to home.

From 2006 to 2008, Texas Attorney General Greg Abbott spent $1.4 million establishing a special unit and conducting a showy search-and-destroy mission to put an end to the “epidemic of voter fraud.”

At the end of his two-year investigation, however, voter fraud looked more like a rare genetic disorder affecting one in 3 million than an epidemic.

In their May 18, 2008, analysis, the Dallas Morning News reported that Abbott’s efforts produced only 26 prosecuted cases. In 18 of the cases, the voters were eligible and the votes were legitimate, but the people collecting and mailing their ballots were prosecuted. The remaining eight cases were true voter-fraud cases, where individuals voted twice or where the deceased or non-existent cast votes.

Still, voter fraud may not be the kind of phenomenon best measured in prosecuted cases. Another way to get at voter fraud is to find out how many non-citizens are called for jury duty and found ineligible because of their citizenship status. (Courts generally use voter registration rolls to pull names for jury duty.)

For a 2005 report, the U.S. Government Accountability Office surveyed 14 U.S. district court administrators to find out how many of the registered voters they tried to select as jurors claimed to be non-citizens. Their responses were mostly estimates, and their estimates indicated low numbers of non-citizens registered to vote.

Of the 14 court administrators:

- 6 had no data

- 4 said no one had been disqualified from serving on a jury because they were non-citizens

- 1 estimated 1 to 3 percent were non-citizens

- 1 estimated less than 1 percent were non-citizens

- 1 estimated 0.15 percent were non-citizens

- 1 estimated 0.01 percent were non-citizens

The estimates above are still not an ideal indicator of voter fraud, however, because though some district courts may come across non-citizens on voter registration lists, it doesn’t mean those individuals have actually attempted to vote. For the same GAO report, Federal Elections Commission officials said some non-citizens may register to vote to meet employment eligibility requirements. (A voter registration card is one of the documents accepted on form I-9 to prove the ability to work in the U.S.)

Our conclusion on voter fraud? Murky. Voter fraud is hard to measure because . . . you know, it’s fraud.

Even conservatives agree it’s slippery. In a legal memorandum for the Heritage Foundation, Hans A. von Spakovsky wrote, “There is no reliable method to determine the number of non-citizens registered or actually voting because most laws to ensure that only citizens vote are ignored, are inadequate, or are systematically undermined by government officials.”

Though Spakovsky was arguing that non-citizen voting is a threat to democracy, his paper does support Sen. Coleman’s assertion that there is no empirical evidence of the existence of voter fraud. And certainly no evidence of an “epidemic.”

Stay tuned for Empirical Evidence, Part II: Voter Suppression.

The passage of the two-thirds resolution Wednesday in the Texas Senate means that a Voter ID bill will almost certainly pass in the Senate. To become a law, of course, it will also have to pass in the House.

Here’s some early speculation on how it might go down.

WHAT HAPPENED LAST SESSION:

Make-up of the House in the 80th Legislature:

Republicans - 81

Democrats - 69

The Voter ID bill introduced in the House last session (HB 218) passed by a vote of 76 to 69.

YEAS: All 76 representatives voting for the bill were Republican.

NAYS: Among the 69 who voted against the bill, 67 were Democrats. The two Republicans were Rep. Tommy Merritt, R-Longview and Rep. Delwin Jones, R-Lubbock.

WHAT COULD HAPPEN THIS SESSION:

Make-up of the House in the 81st Legislature:

Republicans – 76

Democrats – 74

Assumptions:

- All Democrats will vote no.

- All Republicans except 2 will vote yes.

- House Speaker Joe Straus, R-San Antonio, will not vote.

If Republicans Merritt and Jones vote against the bill as they did last session, the vote could be 76 against the bill and 73 for it. So, will Merritt and Jones vote with their party or with their consciences?

Contacted by the Observer, Merritt would not say one way or the other, but did say he would concentrate on the issues important to his district, as well as Real ID.

“In my district, I don’t have a Voter ID issue,” Merritt said. “For me, Real ID is way more important along with the budget and education the other [issues]. If we do the Real ID then the Voter ID will be solved.”

(The Real ID Act of 2005, passed by the U.S. Congress and housed at the Department of Homeland Security, requires state-issued licenses and ID cards to meet minimum standards, including additional security features and a more stringent application process to establish a card-holder’s identity and immigration status. The rule should have gone into effect May 31, 2008, but states could apply for a deadline extension, as Texas did. Texas does not yet issue Real ID-compliant identification cards because of the cost of program implementation.)

Jones would not comment on the two-thirds resolution or the possibility of Voter ID coming up again in the House, but spoke briefly about his “nay” vote during the last session.

“I figured [the bill] was not real practical,” Jones said. “You’re putting more restrictions on the people who have to work at the election polls.”

And will any Democrats cross over to the other side and vote for the Voter ID bill?

Unlikely. As Rep. Garnet Coleman, D-Houston, put it, “It’s about Republican primary politics. Fighting against illegal immigration, fighting against voter fraud, these are things that resonate with their base.”

Coleman echoed other Democrats’ opposition, saying that a Voter ID bill could reduce the number of Democratic votes in an election.

“This also an issue to affect the outcome of elections by limiting people who actually have the right to vote,” he said. “Voter suppression has always worked for Republicans. There’s no empirical evidence that there’s fraud, but there is empirical evidence that voter suppression works.”

By the time the Senate was called to order for the last time on Wednesday, most members were already resigned to the foregone conclusion that the 2/3 rule would be waived for the issue of Voter ID by a vote of 19-12. But, boy, were they wrong!

Dean of the Senate, Sen. John Whitmire, D-Houston, said that a good speech could change the vote in the House — but not in the Senate. Sure enough, after a dozen lengthy speeches, just before the stroke of 7 p.m., the vote came in at a shocking 18-13.

Sen. John Carona, R-Dallas, a “proud Republican” and voter ID supporter, was the lone member to cross the aisle. He was perhaps most moved by his own speech, the only Republican opposition speech. “If I thought [voter ID] was the most important issue of the day, I’d be voting with you,” he told his Republican colleagues. “But, I can’t with a straight face. And I dare say most of you, with a straight face, cannot say this is the most important issue of the day.”

Carona must have doubted the straightness of the face of Sen. Dan Patrick, R-Houston, when he said, “The highest priority [of the Senate] may well be voter ID.”It may have been Sen. Tommy Williams, R-The Woodlands, who authored the resolution, but the argument was focused on Patrick, who said, ““I think it’s a proud day for our body.”He complimented the members on their civility and praised the “step forward” they were making “for Texas” toward the 3/5 rule he has been pushing since he arrived in the senate in 2007. “Two years ago, I was the lone ranger,” he said. “There are a lot of rangers today.”

Sen. Judith Zaffirini, D-Laredo, agreed, sort of, saying that there were only two real winners, Dan Patrick and the state Republican Party.“You and I know the majority is not always right,” she said. “Today, the majority will prevail, and I am embarrassed for the state of Texas.”

Sen. Kirk Watson, D-Austin, declared it “the full and final victory of politics over policy.”“All we proved here today is that we’re acting like the Texas House did last session,” offered Sen. Mario Gallegos, D-Houston.

Sen. Royce West, D-Dallas, said, “I see a special order coming on redistricting…What’s going to happen in the future? The next ten years?”

As an unpredictable counter to their arguments, Sen. Bob Deuell, R-Greenville, got up and read an inexcusably lengthy portion of Dickens’ A Tale of Two Cities.

But, it was Whitmire, adopting the “best of times, worst of times” meme, who delivered the most searing speech (though Sen. Rodney Ellis, D-Houston, came pretty close in recounting the power of the majority to oppress minorities throughout history).“The good news is I have never seen the Senate work harder the first two days,” Whitmire said. “The bad news is we’ve been working on the wrong subject matter.”

Narrowing in on Patrick, and reminding him that there were 24 years of experience separating them, he said, “You know why I think we’ve been so civil? Because we’re sad. We’re tired and we’re sad.”In reference to Patrick’s day job, “I listen to talk shows, Dan…this is a backhanded way to get at undocumented citizens.”

Whitmire wasn’t simply worrying about senators sneaking around the 2/3 rule on other pet issues in the next ten years. “I’m predicting it,” he challenged, “the pressure is going to come on this body.”

From the looks of it, that would be a pretty risky wager to bet against.

The Texas senators sharpened their claws before they came to work on Day Two to debate an amendment to the Senate rules concerning special suspensions of the “two-thirds rule.”

SR 14, introduced by Sen. Tommy Williams, R-The Woodlands, would allow a suspension of the two-thirds rule for “a bill or resolution relating to voter identification requirements.” The rule requires the support of two-thirds of the Senate to bring a bill to the floor, allowing the legislators build a consensus before the legislation is debated publicly. SR 14 would permit a Voter ID bill — which Democrats consider an attempt at voter suppression — to reach the floor with the support of only a simple majority.

Williams argued that suspending the two-thirds rule would allow the Senate to publicly debate legislation that would not otherwise be heard.

“There are important issues that our citizens expect us to take action on,” Williams said.

The Democrats argued that allowing the two-thirds rule to be suspended would make it easier for “special order” issues, described during the debate as intractable or partisan, to be passed during the session.

Sen. Rodney Ellis, D-Houston, saw it this way: “The new tradition here is as long as somebody has 16 [votes] and can’t get two-thirds, they’ll say this is a partisan issue.”

The debate ultimately degenerated into a discussion of Voter ID, a hotly contested issue during the last legislative session — and a strange conversational direction for a Senate that has not yet adopted its rules.

The Democrats aired their frustration by introducing amendment after amendment, each raising an issue the senators considered to be more important than Voter ID, and therefore more worthy of a suspension of the rules. One by one, Williams successfully moved to table them.

The Senate went into recess at 3:50 p.m. so Lt. Governor David Dewhurst could investigate a point of order raised by Sen. Eliot Shapleigh, D-El Paso.

Williams’ Voter ID resolution seems likely to pass, if Shapleigh is proven incorrect on his point of order. The senators have been voting to table the Democrats’ amendments along party lines, 19 GOP ayes (to table) and 12 Democratic nays (to adopt).

It can be safely assumed that the Senate’s move this morning to recess to discuss “procedural matters,” less than ten minutes after taking roll, is an attempt to prevent themsleves from getting a reputation as “the new House” while they hash out Dan Patrick’s contentious proposal to do away with the 2/3 rule, possibly in favor of a 3/5 rule or possibly just for select issues.

They did get one order of business out of the way.  A resolution put forward by Sen. Kel Seliger, R-Amarillo, to honor Andrews, TX, was passed without objection, as eyes turned to the nearly two dozen people wearing bright green “I support WCS” shirts up in the gallery.

Waste Control Specialists LLC, who (through the transitive property) may as well be the honoree, is behind efforts to bring massive amounts of radioactive waste to West Texas.

So, here’s to you, radioactive waste.  Today is your day!

Governor Rick Perry, Lieutenant Governor David Dewhurst, and newly crowned Speaker of the House Joe Straus emerged from their breakfast this morning to grace us with their first press conference together.

“I’m encouraged with the flow between the three of us,” Perry said.  The discussion, however, was primarily concerned with yesterday’s less-encouraging encouraging budget report.

“It’s a pretty sobering wake up call.” Perry said, “I don’t think anyone estimated it would be quite as severe as the comptroller reported.”

“This is gonna be a tough budget,” Dewhurst agreed, but he added, “The situation is a lot easier than it was in 2003.” Which will come as somewhat welcome news — somewhat — to advocates for social services and education, who saw their budgets gutted that session.

Joe Straus demurred, “Having been Speaker for 20 hours, I’m not quite up to where the Senate is on some things.”

“Texans expect the Legislature to be fiscal conservatives and to prudently spend their tax money,” said Perry, promising “a good, solid, balanced budget.”

As for using up the state’s rainy day fund to cover the $9 billion shortfall, “We’re not gonna do that,” Dewhurst insisted.  “I’m looking at 2011 just as much as 2009.”