Are changes to Texas Voter ID law still discriminatory?

This column first appeared in the San Antonio Express News on June 9, 2017.

Senate Bill 5 (SB 5) was passed by both houses of the Texas Legislature and was signed by Governor Abbott on June 1, 2017. The updates to the law are designed to go into effect on January 1, 2018.

Voter ID requirements are codified in the Texas Election Code, Chapter 31, Subchapter A. While SB 5 does lighten the burden on potential voters in two ways, it also issues a new serious threat of criminal prosecution if a voter misapplies the law.

Acceptable photo ID has been tweaked. Voters can now use an ID that expired up to 4 years before the date of use (previously expired ID could only be used for 60 days). If the registered voter is age 70 or older, expired ID may be valid with no time limit (although the new law is vague on this point).

No new types of  approved ID have been added to the list. A handgun license is still acceptable, but a student ID is not acceptable. However, a registered voter who lacks acceptable ID may now present 1) a current utility bill, 2) a bank statement, 3) a government issued check, 4) a paycheck, or 5) the voter registration card – so long as it shows the person’s name and address. A certified birth certificate may also be used, and is not required to show the person’s address.

Using any of these substitutes requires the voter to sign a declaration that the voter has a reasonable impediment in obtaining an acceptable ID. The new law instructs the Secretary of State to write a form for this purpose. The form’s first statement must be that the voter is subject to prosecution under the Texas penal code if the declaration is false. Violation is a state jail felony. “Impediments” can include lack of transportation, lack of a birth certificate, work schedule, lost or stolen ID, disability, illness, family responsibilities, or that an ID has been applied for but not yet received.

The election judge cannot question the reasonableness of the claimed impediment. The voter must then be allowed to cast a ballot based on the alternative identification that was presented.

SB 5 also requires the Secretary of State to establish a program using mobile units to provide election ID cards to voters. This could appear at special events or at the request of a particular group. The Secretary of State is allowed to draft rules to control this program, and can refuse to provide a mobile unit if compliance with program rules cannot be ensured.

The prior voter ID law was ruled unconstitutional by the federal courts, and the US Supreme court decline in January 2017 to overrule that decision. The plaintiffs in that lawsuit have already asked the federal court to invalidate SB 5 and the entire voter ID scheme. The law’s threat of jail time and a felony record for anyone who uses an alternative form of ID without a good enough reason may discourage minority voters from appearing at the polls. It certainly fails to say “Welcome! Please register to vote and participate in our democracy.” Instead it implies “We are watching, and if you try to vote without meeting our standards you may go to jail”. Only the court can decide if these changes pass constitutional muster, or if SB 5 eliminates the state’s intent to discriminate.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

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