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In throwing out an ID requirement of Texas election law for absentee ballots, federal Judge Xavier Rodriguez is defying Congress and federal law.
Absentee or mail-in ballots have always been the least secure method of voting because they are the only type of ballots that are voted outside the supervision of election officials and outside the observation of election observers.
As part of its election reform efforts, and because of the increased use of absentee ballots by voters, Texas implemented a requirement that voters applying for an absentee ballot include the serial number of the voter’s driver’s license, personal ID card, or election identification certificate issued by the Texas Department of Safety. If voters don’t have any of these three IDs, they can provide the last four digits of their Social Security number.
Congress itself determined that the ID information that Judge Rodriguez claims is not material is, in fact, material to state election officials. (iStock)
There is a final safety valve in the Texas requirement for anyone who doesn’t have an ID or doesn’t even have a Social Security number (a difficult scenario to imagine): such a voter simply has to include a statement that he or she has none of the required IDs or numbers.
The Biden Justice Department and the usual liberal advocacy groups all sued Texas over its election reform efforts, including this specific requirement. Recently in La Unión Del Pueblo Entero v. Abbott, Rodriguez granted their motion for summary judgment on this particular provision. Rodriguez declared that this requirement for ID numbers on absentee ballot applications violates Section 101 of the Civil Rights Act of 1964.
Section 101 states that no one can be denied the right to vote "because of any error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual qualified under State law to vote."
Texas Gov. Greg Abbott during a news conference on March 15, 2023, in Austin. (Brandon Bell/Getty Images)
Rodriguez seized on the "not material" language to conclude that the fact that an absentee ballot application does not have the required ID or Social Security number or has the wrong number is "not material in determining whether voters are qualified under Texas law to vote or to cast a mail ballot" (emphasis in original).
The Aug. 18 order is only eight pages because Rodriguez says that this is a "summary" ruling that "will be followed in the coming weeks by a final written opinion and order." But we don’t need his written explanation of his decision to know that Rodriguez is clearly wrong and is acting directly contrary to federal law and the intent of Congress in his conclusion that this ID information is not material or relevant to state election officials.
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In 2002, Congress passed the Help America Vote Act. One of the crucial changes it made is a requirement contained in Section 303 that says an application for voter registration in a federal election "may not be accepted or processed by a State unless the application includes… the applicant’s driver’s license number" or if the applicant doesn’t have such a number, "the last 4 digits of the applicant’s social security number."
A voter sits on a bench outside of a polling location during primary elections in Corpus Christi, Texas, on March 1, 2022. (Callaghan OHare/Bloomberg via Getty Images)
If the applicant doesn’t have a driver’s license or Social Security number, the state is directed by this federal law to "assign the applicant a number that will serve to identify the applicant." Whatever number is collected from or assigned to the voter "shall be the unique identifying number" for that voter.
States aren’t just required to collect these ID numbers; they are also required to use them to "verify the accuracy of the information" received from voters, which includes matching that information with other government databases such as with the state’s department of motor vehicles and the Social Security Administration.
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Why is this important? Because it means that Congress itself determined that the ID information that Judge Rodriguez claims is not material is, in fact, material to state election officials determining whether the absentee ballot application received is from the actual registered voter who is qualified to vote in the election.
Campaign signs are seen near the Kashmere Multi-Service Center polling place on Nov. 6, 2018, in Houston, Texas. (Loren Elliott/Getty Images)
It is just as material as other provisions in state laws that require a voter to provide other information from their voter registration such as their name, registration address, and in some states, their birthdate, too. It is simply an added check needed to verify the identity of the voter and ensure that it is the qualified voter using the absentee balloting process.
Moreover, when it comes to these types of ID numbers, the Help America Vote Act specifies that the "State shall determine whether the information provided by an individual is sufficient to meet the requirements of [the Help America Vote Act], in accordance with State law." Not the Justice Department and not Judge Rodriguez.
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Texas has determined that this information is a necessary "requisite to voting" and is acting fully within the requirements of the Help America Vote Act, which Rodriguez is apparently ignoring. His conclusion that the Civil Rights Act is being violated is wrong as a matter of law; moreover, he has no authority to question what information from a voter’s registration the state can require of a voter.
This case is not over. The court erroneously granted summary judgment on this issue, but there is going to be a trial on other provisions of Texas election law that the challengers have attacked. If Texas appeals this summary judgment, it should get a quick and easy reversal from the U.S. Court of Appeals for the Fifth Circuit over the district judge substituting his judgment for that of Congress and Texas officials.
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