Ever since Texas’ strict voter identification law was passed in 2011, Democratic lawmakers and minority groups had focused on how to get it struck down. This week, after a federal appeals court ruled that the law discriminated against minorities, there is a new, equally vexing question: how to fix it. The appellate court’s decision kept the law in place but instructed a lower court judge to come up with procedures to minimize the law’s effect on those who do not have an approved form of government-issued photo ID or who face hurdles in easily obtaining one, many of whom are black or Hispanic. North Carolina, South Carolina and other states that have passed voter ID requirements have had similar court battles over how, and whether, to loosen their rules to accommodate poor and minority voters. One option is allowing voter-registration cards to be used as ID. Those cards are mailed to voters and do not have a photograph, and might be more readily available to an impoverished voter than a government-issued photo ID. Another option is expanding the list of acceptable IDs to include student IDs or government-employee IDs. And yet another possible solution involves having the state exempt the poor from having to show a photo ID to vote, an exception modeled on Indiana’s voter ID law.
Election law experts and opponents of voter ID restrictions cautioned, however, that softening the effect of voter restrictions is more easily ordered by a court than accomplished in reality. “These softening measures work better in theory than in practice,” said Richard L. Hasen, an election law expert and a law professor at the University of California, Irvine. “Voters don’t understand what their rights are, poll workers don’t always understand, and there’s not adequate publicity about the options.”
In Indiana, for example, an impoverished person who lacks a proper photo ID can cast a provisional ballot on Election Day, but must visit an elections office within 10 days to make the vote official and sign a statement affirming an exemption is warranted. In Texas, provisional ballots have a dismal track record, and as a result, one idea being discussed among lawyers in the case is having voters who lack the proper ID sign an affidavit and then vote on a regular ballot, not a provisional one.
Many Texas voters who cast provisional ballots because of ID-related problems — some have out-of-state driver’s licenses instead of Texas driver’s licenses — never return after Election Day with a proper ID. Their votes are never officially counted as a result. In Cameron County, where Brownsville is, 18 voters cast ID-related provisional ballots across three elections in March 2014, November 2014 and November 2015. Only one later had the vote counted, while the other 17 let their ballots expire by leaving their ID issue unresolved. In Bexar County, the location of San Antonio, 38 voters who had an ID problem cast provisional ballots in those elections. Only five returned to show the proper ID. The other 33 never followed through, and their votes did not count.