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Texas Hit With Yet Another Lawsuit Over Voting Rights

The confusion that resulted in more than 1,800 Texas voters being sent home from the polls began online, according to a lawsuit filed by the Texas Civil Rights Project.

After moving to a different county, those 1,800 people went to the Department of Public Safety's website to change their address and checked "Yes" when DPS asked them if they wanted to register to vote. They didn't notice the small print beneath that little check box that explained that selecting that box wouldn't actually register them — they would have to go to a different webpage and follow other instructions. So when they showed up at the polls, election officials turned them away, telling them, sorry, you're not in the system.

But in a class-action lawsuit that the Texas Civil Rights Project has filed against DPS Director Steven McCraw and Texas Secretary of State Carlos Cascos, whether denied voters read the small print is beside the point. The lawsuit alleges that the state's failure to register voters when they change their addresses directly violates the National Voter Registration Act of 1993, potentially disenfranchising thousands of confused voters.

“The important point is that the 1,800 complaints, those are the tip of the iceberg,” said Mimi Marziani, Texas Civil Rights Project executive director.

Texas has never allowed people to register to vote online, and Marziani said that, from her correspondence with state officials, the state's reasoning is simply that the law doesn't require them to. But, as this lawsuit points out, what the law does require is that any time you renew your driver's license or change your address, the state must offer you the chance to register to vote at the same time. The whole point of the Voter Registration Act was to “increase the number of eligible citizens who register to vote in elections” by creating another avenue to do it. The lawsuit alleges that, instead, Texas effectively puts up a roadblock.

Last week, President Barack Obama rather bluntly called out Texas officials for its other, more notorious voter barrier: the state's voter ID law. Passed in 2011 and still making its way through appeals, the law requires voters to bring an official government document to the polls, such as a driver's license or birth certificate. Despite the fact that two lower courts ruled that it had a disproportionate impact on minority voters, the U.S. Fifth Circuit Court let it go into effect last August, just in time for the 2016 presidential race, saying that even though it may be unconstitutional, Texas lawmakers didn't intend to pass a racist law. Obama, on the other hand, said that the reason the law exists is because “folks who are currently governing the good state of Texas aren’t interested in having more people participate.”

Texas has argued that it passed the voter ID law because it wanted to protect against voter fraud — despite the fact that only four people have been accused of voter fraud since 2004. In response to the claim that the law potentially disenfranchises minority voters, officials have asked for proof, saying voter turnout rates don't appear to have changed. And that's true, though not necessarily something to cheer: Texas, over the past several years, has consistently clocked in with some of the worst voter turnout rates in the country. (Just 21.5 percent of voting-age Texans came out to the polls for the most recent primary.) But as Department of Justice attorney Erin Flynn told a Fifth Circuit judge: “Turnout number doesn't capture the deterrent and suppressive effect that a voter ID law has.”

In the same way, Marziani said that the 1,800 complaints sent to the secretary of state's office are not representative of the true extent of the problem. Those 1,800 complaints came from people who were upset enough to take the time to formally complain to election officials, who then had to file the complaints with county officials, who finally sent them to the secretary of state. The 1,800 also only come from 123 of Texas's 248 counties. Marziani said she finds it hard to believe that voters had no problems in the other 125 counties, and given the convoluted complaint process, it's likely that all too often their complaints are falling through the cracks. Combined with the voter ID law, Marziani said it's clear that Texas doesn't appear to be making any effort to make it easier to get people out to the polls.

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“I do think, unfortunately, that what Obama said is what we're seeing,” Marziani said. “The state has known about this problem. There are commonsense ways that the state can fix this issue, and it has just not done so.”

One of those commonsense ways, she said, would be simply allowing online registration not only for those who change their addresses, but for all. She said that, through emails TCRP obtained, DPS appeared to be fully aware of the confusion its website causes among voters, who click "Yes" without reading the small print and show up at polls only to be let down.  Yet even though it has the digital tools to make online registration happen (as could pretty much any agency with a computer), it has refused to do so.

Both DPS and the secretary of state's office declined to comment. But a spokesman with the secretary of state's office did want to remind voters that they can check their registration status at votetexas.gov, and that they should make sure to follow all the steps for voter registration listed online.

As Marziani noted, it would be much easier if the only step were selecting the button that says "Yes."

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